The 10 Fatal Mistakes Inexperienced Lawyers Can Make in Drunk Driving Cases and How you Can Avoid Them

Even though attorneys learn “the law” in a wide variety of legal areas, most of their litigation expertise comes from practical experience, either by prosecuting or defending individuals or businesses.

For Florida DUI cases, which involve a great deal of science in addition to a general knowledge of the basic Florida DUI laws, this experience is crucial to handling matters competently and successfully.

And due to the complexity of DUI cases, knowledgeable attorneys consider DUI cases to be among the most difficult to defend. Because of this same complexity, many attorneys who are not experienced in DUI Defense often make 10 fatal mistakes when it comes to defending their clients charged with DUI . . . mistakes which can seriously hurt their clients as far as losing their drivers license, paying considerable fines, being jailed, having huge increases in their insurance rates, and the effect it could have on their current or future job and career.

To protect yourself and to help you decide who to hire and how to plead, you need to know what these mistakes are:

Mistake 1—Assuming the Case Can’t be Won

The single most fatal mistake an inexperienced attorney can make in representing you after you have been arrested for DUI is assuming your case cannot be won and pleading you guilty.

After getting the police report and the breath test results, many inexperienced lawyers simply give it up and advise the client to plead guilty.

In fact, the breath test, the blood-alcohol (BAC or Blood Alcohol Count) test, and the roadside sobriety tests the arrested person is asked to perform all have potential built-in flaws: flaws which can make the difference between a conviction and a dismissal.

For example, the results of a breath test or evidence of your sobriety can be challenged through a Motion to Suppress, or with cross examination of the arresting police officer or the state’s expert.

Is it more costly to defend than to plead guilty?

Of course it is. But with your future and possibly your freedom at stake (including significant penalty fees), the possibility of winning may be worth the risk. And it may cost less than you think.

Mistake 2—Assuming That The Breath Test Rules Were Followed Correctly

Just about every state has rules and regulations regarding the breath test given to drivers suspected of DUI. The crucial point for the prosecution is that these rules must be followed correctly.

This provides the experienced DUI Defense attorney the opportunity to attack the results on the ground that the technical rules weren’t followed correctly.

In my practice I have found that many lawyers simply do not understand or know the Florida regulations covering breath testing.

Those attorneys who are unfamiliar with these regulations fail to realize that violations of the rules introduced into evidence, and other things that aren’t introduced into evidence, can show that the results are unreliable. Further, showing that the rules were not followed correctly can be used to exclude the breath test results altogether.

For example: The testing officer is supposed to watch you for 20 minutes before administering the test to you to make sure you don’t hiccup, burp, or vomit, because these things can totally skew the test results. Many courts throughout the State of Florida have excluded test results for this specific violation, even though the accused may not have actually hiccupped, burped or vomited.

In fact, several criteria must be met or the test results will likely be thrown out by the Judge. These include:
• The test operator must have a current certification.
• The machine must have a current certification.
• The machine must be calibrated regularly.
• The mouthpiece must be changed before the test is given.
• A record of the temperature of the calibrating solutions in the machine must be kept.
• A log must be kept of the tests run.
• The number of times the calibration solution has been changed must be counted.
• The sample must be taken within a reasonable time of your arrest.
• There must be more than one test taken.
• The results of the two tests cannot be more than 0.01 apart.
• You must not be wearing dentures.
• You must not have been working with solvents.

Consequently, in order to defend you properly, an experienced DUI Defense lawyer would get copies of the various logs, maintenance records, and the operator’s license or certification.
Mistake 3—Not Filing A Motion to Suppress

Failure to file this pre-trial motion before a trial is a huge mistake, and maybe the most common mistake made by inexperienced lawyers.

Even though this motion doesn’t succeed very often, a case can be won by filing it. In order for the arresting police officer to make a lawful stop, he or she must have Probable Cause. In other words, there must be a definite reason for the police officer to pull you over. While a stop is generally justified if you were weaving from lane to lane, weaving within a lane may not make the stop justified. And whether a Judge will admit it or not, this motion may strike a chord with the Judge and he may be inclined to grant it in favor of the defendant..

Equally as important, even if the motion is not granted, it provides another opportunity to question the arresting officer. The officer can be asked a broad range of questions. And his testimony can be used at trial.

If the arresting officer’s testimony at the pre-trial hearing is different from that given at the trial, the stronger your case is. And this is a very common occurrence.

Mistake 4—Not Personally Checking Out The Arrest Location

Most lawyers do not visit the arrest location. And this can be a critical mistake. An experienced DUI defense lawyer may choose to visit to the arrest scene even before a prospective client comes in for his/her first appointment. And he may take photographs of the spot where the roadside field sobriety tests were given.

Why? First of all, a photograph may indicate that the particular location made the roadside tests difficult to perform. For example, if there is heavy traffic speeding by on a highway. Or if the shoulder of the road used for the roadside tests is on a slight incline. A graded road automatically makes the tests more difficult to perform. Or a winding road could explain erratic driving.

Seeing and knowing these factors make it much easier for an experienced DUI Defense lawyer to ask you probing questions about the roadside tests, and, in some cases, point out a physical impossibility to the court.

Mistake 5—Not Exploiting The Advantage of The “Training Manual” For Roadside Sobriety Tests

The “Training Manual” is another example of specific criteria that the police must follow when they perform a roadside field sobriety test. Few lawyers know anything the rules contained in this manual. Even fewer lawyers actually take training courses themselves to become certified and qualified to give these tests.

At the very least, this manual should be studied by your DUI Defense lawyer. He or she will then know exactly what questions to ask the arresting police officer to see if he completely followed the manual’s directions. This powerful evidence is frequently overlooked by inexperienced defense lawyers.

The secret is, if the manual’s directions were not completely followed, the validity of the test results can be successfully attacked. A successful challenge results in the test evidence being excluded at trial. Which significantly weakens the DUI Prosecutor’s case.

Even more important, officers do not use objective scoring. The manual explains how to score the tests and how to arrive at a final score. It is commonplace for the officer to simply subjectively decide whether or not you failed the tests.

Very often the arresting officer will ask you to do more than the manual requires. When this occurs, an experienced DUI Defense attorney will successfully have this evidence excluded altogether and have the case dismissed.

Wouldn’t you want your DUI Defense lawyer to know the manual from cover to cover?

Mistake 6—Not Explaining The Extra Penalties Following a Conviction or a Guilty Plea

If your lawyer doesn’t advise you about the administrative sanctions resulting from a conviction, he has committed malpractice.

What is important about these administrative sanctions?

They can include a 6-month or year long license suspension or revocation, significant jail time, a hefty fine, inability to rent a car, substantially higher insurance rates, and loss of your job (particularly if your job involves driving).

And this mistake is all too common among lawyers who do not specialize in DUI Defense law.

You must take these extra penalties into account when deciding to plead guilty. If you’re not aware of these penalties, you may have a very unpleasant surprise in store.

Mistake 7—Putting the Client on The Stand

Despite what you may have heard, it is rarely a good idea for you to take the stand in a DUI matter. This is primarily because you are most likely not an experienced witness, and may appear to be nervous or hiding something.

Moreover, a defendant who is put on the stand shifts the Judge’s focus away from the possible mistakes of the Prosecutor. The objective of the DUI defense is to show that the Prosecutor’s case is not strong enough to convict beyond all reasonable doubt. When the DUI defendant is put on the stand, however, the focus shifts to the credibility and honesty of the DUI defendant.

The Judge is thus forced to choose between the arresting police officer and the DUI defendant. Additionally, it gives the Prosecutor the chance to make the DUI defendant look like he’s hiding something or not being completely honest.

Is there ever a good time to put the DUI defendant on the stand? Yes, to contradict something the officer said.

Beyond that, your DUI Defense lawyer should focus on placing reasonable doubt in the Judge’s mind.

Mistake 8—Attempting to Show The Arresting Police Officer Lied

An experienced DUI Defense lawyer doesn’t need to make the arresting police officer sound like he lied to put reasonable doubt in the Judge’s mind. All he really needs to do is show how the officer might simply be mistaken this time.

Why? Because no one wants to believe that the arresting police officer is lying. But the Court may accept the officer being mistaken.

An experienced DUI Defense lawyer will have a greater chance of success by simply showing the Judge that the arresting police officer zealously jumped to conclusions and made a few mistakes.

Mistake 9—Not Consulting A Specialist

Just as you wouldn’t hire a criminal defense attorney to give you advice on matters concerning your Will or your divorce, you wouldn’t consult with a divorce lawyer on your DUI charges. You would be wise, however, to hire an experienced Florida DUI Defense lawyer who’s practice focuses primarily on matters concerning DUI Defense and other related vehicular offenses and who is fully familiar with the legal procedures that go with it.

The reason for this is simple: Florida DUI law is complex, it involves a lot of scientific and technical expertise, and a lawyer who is a general practitioner cannot be everything to everybody. Knowing how to defend a DUI case involves considerable preparation, familiarity with the Florida DUI laws, and knowing what motions to make and when. An attorney who’s practice concentrates on Florida DUI law has that knowledge.

Your DUI Defense lawyer will quickly be able to spot potential defenses and take advantage of those defenses. He’ll know exactly how to conduct a proper investigation of the facts and how to conduct discovery.

You see, a DUI charge is no longer a minor offense. The legal reforms of Florida’s DUI laws in the last ten years, the tightening of the standards defining what DUI is in the state of Florida, and the penalties imposed on drivers pleading guilty or convicted of DUI have made these cases not just complex, but also serious. You may be forced to pay stiff fines and you may end up in prison.

Right now, is there anything more important than your freedom? It is vital for you to hire the best DUI Defense attorney you can afford so your case is as strong as possible.
Mistake 10—Not Consulting with an Expert on the Testing Procedures

Whether it is a breath test or a blood sample, it is a fatal mistake for a DUI Defense attorney to neglect to consult with the credible experts who can assist in the defense of the case.

If the police reports and roadside testing reports are defective, expert testimony is essential to prove your case.

Consulting with the proper experts, and getting written opinions from those experts when necessary can help convince the Prosecutor that he or she cannot prove your case beyond a reasonable doubt.

Richard G. Salzman, Esq. is an experienced Broward County DUI Defense attorney; licensed to practice law in New York and New Jersey since 1986, and Florida since 1988. The Law Offices of Richard G. Salzman, P.A. focuses on Criminal Defense, DUI Defense and related vehicular offenses and BUI Defense (Boating Under the Influence).

Law Offices of Richard G. Salzman, P.A.
4340 Sheridan Street, Suite 102
Hollywood, Florida 33021


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One Response

  1. There are many mistakes that can be made. Failure to recognize that the prosecution has failed to make a case and failure to ask for a directed verdict is another.

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