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Andrew Mishlove
Law Offices
Excellence Since 1981
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The Andrew Mishlove Law Offices
Glendale, Wisconsin
Phone:
(414) 332-3499 or
Toll-Free
(877)
DUI-DREW or
(877) 384-3739
24 hours
Email:
andrew@Wisconsin-OWI.com
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HOME
SPECIAL REPORT: HOW TO WIN A DRUNK DRIVING CASE
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The Top 10 Mistakes Lawyers Make in Drunk Driving Cases...
And How To Avoid Them
Even though attorneys are schooled in the laws pertaining to a wide variety of legal areas, a huge amount of expertise comes from practical experience and specialized OWI DUI training.
For OWI DUI cases, which involve a great deal of science in addition to just knowledge of the basic governing laws, this experience and training may be the most critical thing.
And because of the complexity of OWI DUI cases, knowledgeable attorneys consider them to be among the most difficult to defend. Because of this same complexity, a great many attorneys make up to 10 big mistakes when it comes to defending OWI DUI clients . . . mistakes which can profoundly harm their clients in terms of losing their 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.
To protect yourself and to help decide whom to hire and how to plead, you had better know what these mistakes are. And, you had better select an attorney who is thoroughly familiar with OWI DUI cases and their complexities.
Mistake 1—Assuming the Case Can’t be Won
I’ve been practicing DUI law since 1981 and I’ve come to believe that making this assumption and pleading you guilty is the single most important mistake attorneys make in representing individuals arrested for DUI.
You see, after getting the blood or breath test result and the police report, many lawyers simply give it up and advise the client to plead guilty.
In fact, the blood or breath test and the roadside tests the arrested person has to perform all have potential built-in flaws. Flaws which can make the difference.
For example, in some cases the results of a breath test can be challenged through a Motion to Suppress, or evidence of your sobriety, or with cross examination of the police officer or the state’s expert. I’ll say more about these in a minute.
Is it more costly to defend than to plead guilty?
Sure it is. But with so much at stake (including considerable penalty fees), the possibility of winning should not be just dismissed.
It’s not just client costs that are involved. You see, a lawyer who just advises you to plead guilty, and who charges a low fee to take care of that may not have experience in winning cases. And, the hidden costs of job loss, insurance, vehicle forfeiture, lawsuits and so on, are enormous. Not to mention serious jail time. Particularly in cases involving a high profile person, a case resulting in serious injury, one where your livelihood is at stake, or jail time is likely, never just assume that the case can't be won.
Are these hard cases? Sure, most of the time. But, a winning attorney isn't intimidated by a hard case. A winning attorney knows that victory lies in challenging the details...details that are usually unfamiliar to an ordinary attorney.
Mistake 2 - Not Fighting the License Suspension
Another common mistake lawyers make is not contesting a license revocation hearing because they believe that these hearing cannot be won very frequently. A revocation is imposed in Wisconsin for refusal to take a breath or blood test, or for failing it.
But it’s simply not the case that the revocation hearing cannot be won. They can often be won based on technical defenses, such as
- the sample was not taken within the time limit.
- you burped and the officer did not start the observation period over.
- you had something in your mouth, such as chewing tobacco.
- you were on an Adkins diet.
- you have diabetes.
- you have dentures.
- you work with solvents.
- an alcohol antiseptic was used when blood was drawn.
- the blood test kit expiration date had passed
- the blood was drawn by an unqualified person
- the was no reasonable suspicion that you had violated the law when you were stopped
- there was no probable cause for your arrest
- you were not properly informed of your rights.
Moreover, by not contesting this hearing they don’t get to question the arresting officer. And this may be the only time the arresting officer can be questioned soon after the arrest, when his/her recollection is likely to be most accurate. This opportunity may be one of the best ways to "set up" the officer, so that you can win your case.
Mistake 3—Assuming That The Blood Or Breath Test Rules Were Followed
Virtually every state has rules and regulations concerning the blood or breath test given to people suspected of DUI. The critical point for the prosecution is that these rules must be followed.
This leaves open attacking the results on the grounds that the technical rules weren’t followed.
Through conversations with other attorneys, I’ve discovered that far too many lawyers don’t read the statute and regulations covering blood or breath testing.
Those that don’t know the regulations don’t realize that violations of the rules introduced into evidence can show that the results are unreliable. Further, showing this may be used to exclude the blood or breath test results altogether.
Here’s an example. The testing officer is supposed to watch you for 20 minutes before giving the test to make sure you don’t hiccup, burp, or puke. Because these things can totally skew the test results. A proper observation period is absolutely mandatory for a breath test to be accurate. Very often, the police do not perform a proper observation before the breath test.
Here's another example, the seal on the tubes used to collect your blood must be in perfect condition for the blood test to be accurate. These seals all have an expiration date from the manufacturer, and should not be used after that date. But, often the tubes used to collect blood are way past the expiration date and should not be used. Few attorneys even know about this, and fewer still know how to use it in court. Make sure that you choose an attorney that knows about the law and science of blood and breath testing.
In fact, a host of criteria must be met or the test results will often be thrown out. These include:
- the test operator having a current certification.
- the machine having a current certification.
- calibrating the machine as often as required.
- changing the mouthpiece before the test is given.
- keeping a record of the temperature of the calibrating solutions in the machine.
- keeping a log of the tests run.
- counting the number of times the calibration solution has been changed.
- keeping the blood vials fresh.
- having a qualified technician draw the blood (yes, they often use untrained, unqualified people).
Thus, to defend you properly, a lawyer should get copies of the various logs, maintenance records, and the operator’s license or certification, etc. Sadly, most lawyers don’t, settling instead for just the complaint and the arrest report.
Mistake 4 - Not Filing A Motion to Suppress
In most cases ,whenever there is a reasonable basis to challenge admission of evidence, it should be done. Not filing this pre-trial motion before a trial is a huge mistake according to many experts, and maybe the most common mistake according to others.
Even though this motion doesn’t succeed very often, a case can be won by filing it. 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 they’ll admit it or not, this motion may resonate with a judge.
Equally as important, even if the motion loses, it provides another opportunity to question the arresting officer. The officer can be asked broad range of questions. And his testimony can be used at trial as well as in plea bargaining.
If the testimony is different in the suspension hearing, the pre-trial hearing, and again at the trial, the stronger your case is. And it is not uncommon for this to happen..
Mistake 5 - Not Personally Checking Out The Arrest Location
Many lawyers don’t visit the arrest location. And this can be exceedingly crucial. A lawyer should go to the arrest scene AS SOON AS POSSIBLE. And he should take pictures of the spot where the tests were given.
Why? First of all, it could point out that the particular location made the roadside test difficult to perform. For example, if there’s heavy traffic speeding by on a highway. Or if the shoulder of the road used for the roadside test is slanted. A slanting road automatically makes the tests more difficult to perform. Or a winding road could explain erratic driving.
Seeing and knowing these things makes it much easier for your lawyer to ask probing questions about the roadside test, and, in some cases, point out a physical impossibility to the jury.
Again, an example: An officer may testify that you wove a certain number of times on the road. But there may not have been enough time for you to weave this many times in a given stretch of road. When illustrated by your attorney, this is very telling.
In another case, the officer testified that he watched my client from his vantage point for almost a mile. But, when I visited the scene, I photographed the proof that he could only see about one hundred yards up the road. In that same case, the officer testified that it took my client over half a mile to pull over when the officer activated his lights and siren. But I went to the scene and measured only 150 yards. The jury was not pleased with this cop.
Mistake 6—Not Exploiting The Advantage of The "Training Manual" For Roadside Tests
The "Training Manual" is another example of rules that the police must follow when they perform a field sobriety test . . . that is, the roadside tests I just mentioned above. Most lawyers know little about this manual and its rules. A very few are experts in the "manual."
At the very least, this manual should be studied by your lawyer. He or she will then know exactly what questions to ask the arresting officer to see if he completely followed the manual’s directions. This can be powerful evidence frequently overlooked by defense lawyers.
You see, if the manual’s directions weren’t completely followed, the test’s validity can be attacked. At what point the test is attacked varies by state. Wherever your lawyer does it, a successful challenge results in the test evidence being excluded at trial. Which significantly weakens the prosecutor's case. I’ve found that in an extremely large number of cases, the police do things inconsistent with the manual’s material.
Even more important, officers don’t always use objective scoring. The manual explains how to score the tests and how to arrive at a final score. All too often the officer simply subjectively decides whether or not you failed the tests.
Another facet of this is officers asking you to do more than the manual requires.
Many police are not properly trained and certified in the roadside "standardized field sobriety tests." Sometimes the police even make up their own tests at the scene. A good lawyer can show how unfair the officer was at the scene, by showing how he didn't use the proper method for the roadside tests.
What’s the point? It’s simple: if your lawyer doesn’t know the training manual, how can he/she attack the way the arresting officer used it?
Mistake 7 — Not Explaining The Extra Penalties Coming With a Conviction or a Guilty Plea
If your lawyer doesn’t advise you about the all of the penalties resulting from a conviction, this is malpractice.
Why are these important?
Because they can include license revocation, jail time, a significant fine, seizure of your car by the government, immobilization or ignition interlock of your car, 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.
You must take these extra penalties into account when deciding to plead guilty. If you’re not aware of these penalties, you cannot help but be the loser.
Mistake 8—Not Knowing When To Put the Client on The Stand, and When Not To
Contrary to popular belief, it is often not a good idea to put the defendant on the stand, expert OWI DUI attorneys believe. This is primarily because they are not experienced witnesses, often appearing to be nervous. Many attorneys don't have enough OWI DUI trial experience or training to know when its necessary or unnecessary to put the client on the witness stand.
Moreover, a defendant who is put on the stand shifts the jury’s focus. The objective of the defense is to show that the prosecutor’s case is not strong enough to convict beyond all reasonable doubt, and the the police didn't follow the proper rules. When the defendant is put on the stand, however, the focus shifts to the credibility and honesty of the defendant.
The jury is thus forced to choose between the uniform of the police officer and the defendant. Plus, it gives the prosecutor the chance to question the defendant and to make him look like he’s hiding something.
Is there ever a good time to put the defendant on the stand? Yes, sometimes. For example, it may be necessary to contradict something the officer said. The are other times, as well, where you may have to testify. Only a very experienced, very good lawyer knows when to put you on, and when to keep you off. Make sure that you choose a lawyer with extensive experience in OWI DUI trials, who knows those few times when you should testify.
Mistake 9 - Attempting to Show The Officer Lied
Look, your lawyer doesn’t need to make the officer sound like he lied to put reasonable doubt in the jury’s mind. All he really needs to do is show how the officer might simply be mistaken this time.
Why? Because the jury doesn’t want to believe that the officer is lying. Everyone wants to respect and believe police officers. We all know that police officers are often heroes. Juries don't want to believe the officer is dishonest. But, if they're shown the true facts a jury will accept that the officer is mistaken. Not to mention, do you think the officer will admit that he is lying?
It’s far better to simply paint the case as being about a cop jumping to conclusions and making mistakes.
Mistake 10 - Not Consulting A Expert
Attorneys who are expert in OWI DUI law say that someone who isn’t a OWI DUI "specialist" should consult one. Just as you wouldn’t hire a criminal attorney to advise on business law or divorce. By "specialist" I don't mean someone who is certified by the state as a specialist, as Wisconsin doesn't certify any legal specialists. But you should hire an attorney that focuses on OWI DUI law, an attorney who handles little else other than these kinds of cases, an attorney that is specially trained and who is a member of the National College of DUI Defense. (see the list at www.ncdd.com).
And, your attorney should be very, very familiar with the best experts in the science of DUI cases--experts in breath and blood testing, and DUI investigation.
The reason for this is simple: OWI DUI law is complex, it involves a lot of science, and a generalist cannot be everything to everybody. Knowing how to defend an OWI DUI case involves considerable preparation, specialized training, familiarity with the law, familiarity with OWI DUI strategy and tactics, and the science of chemical testing. An expert in OWI DUI law has that knowledge. A general practitioner, even a general criminal law practitioner, will almost never have that knowledge.
An OWI DUI expert lawyer will quickly be able to spot potential defenses. He’ll know what the investigation and discovery should be.
If your lawyer is not a specialist in this area, you may not be getting the best advice and you may not have the strongest case.
You see, OWI DUI is no longer a minor offense. The reforms of the 80's and 90's, the tightening of the standards defining what OWI DUI is, and the penalties imposed have made these cases not just complex, but also important.
So it’s necessary for you to hire the best attorney you can afford so your case is as strong as possible.
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Providing Wisconsin OWI Defense in:
Adams, Brown, Calumet, Columbia, Dodge, Door, Florence, Fond du Lac, Forest Green Lake, Jefferson, Juneau, Kenosha, Kewaunee, Langlade, Lincoln, Manitowoc, Marathon, Marquette, Marinette, Milwaukee, Oconto, Oneida, Outagamie, Ozaukee, Portage, Racine, Rock, Sauk, Shawano, Sheboygan, Vilas, Walworth, Washington, Waukesha, Waupaca, Waushara, Winnebago and Wood.
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The Andrew Mishlove Law Offices
The Eastlake Towers Corporate Center
4425 North Port Washington Road
Suite 110
Milwaukee, Wisconsin 53212
Phone 24 hours: 414-332-3499
Toll-free
(877) DUI-DREW or (877) 384-3739
Email: andrew@Wisconsin-OWI.com
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