An Illustration of Procedural Due Process: Defending a Driving While Intoxicated Case

With the holidays approaching, again we must implore individuals not to drink and drive. Clearly many tragic deaths, injuries, and property damage occur from the criminal and morally reprehensible behavior of intoxicated driving. Many commentators justifiably advocate for more serious criminal and civil penalties for an individual who is convicted of a DWI offense. This comment does not explore the causes or prevention of problem intoxication or the broader public policy issues that our society should address. Rather, this comment provides a very brief and incomplete legal educational overview of procedural due process in thoroughly defending a contested DWI case. Some states use the terminology of driving under the influence (DUI) or driving while impaired. For convenience, this comment consistently uses DWI.

Defense attorneys are asked how they can morally represent "guilty" persons and use "technicalities" and "loopholes" to release the guilty. There are a number of potential answers to this question. The reader may form her or his own opinion concerning these conventional answers.

1. Guilty of what offense in a range of offenses? Only a trial may determine this.
2. Our present system of individual rights and criminal justice reflects a response to centuries of oppressive arbitrary actions against citizens by governments.
3. Proof beyond a reasonable doubt requires the government to clearly justify its actions against any individual. It is a bigger issue than an individual defendant in a particular case.
4. The adversarial system of justice submits even "obvious" facts to questioning since human mistakes, bias, and animus are not uncommon.
5. Procedural due process for an accused individual protects ourselves, our families, and friends from potentially unfair procedures and injustices.
6. We should never fear a search for truth.
7. A rush to judgment is as dangerous as justice delayed.
8. History teaches that unrestrained and unchallenged police power may become arbitrary, oppressive, and unjust.
9. As a free society, we place a premium on not sending the innocent to prison, even if it means that some guilty persons escape punishment.
10. While our system of criminal justice has flaws, and may provide the privileged, wealthy, and dominate groups with opportunities to escape just punishment, while unfairly treating others, it is difficult to imagine, viewed as a whole, a better system for maintaining a free society. Of course, our justice system may be refined and improved and in a free society we have the power to do this.

Video that shows obvious reckless driving or impairment is powerful evidence. However, there may be more occurring than the visual image captures. Conventional defense attorney wisdom is that a potential DWI defendant should be polite but remain silent. She or he should not provide the police with any information beyond name, driver's license, and proof of insurance and should not voluntarily submit to any field sobriety tests or blood draws. Once arrested, the defendant may be eligible for a personal bond, percentage cash bond, or surety bond. Again, in the booking and bonding process, the defendant should decline to answer any questions regarding the offense until having the opportunity to consult with her or his attorney. Defense attorney fees and related investigators and experts may be quite costly depending on the potential time and complexity of the case.

Facts are critical. It is important to know and consider everything. An experienced defense attorney will go over the entire day (possibly week) leading up the arrest in great detail with the defendant, as well as ideally having a medically trained assistant take a detailed medical history and prescription and over-the-counter drug usage history. A medical physical examination may be appropriate. This medical information is professionally reviewed to determine if an impairing event might have occurred on this occasion.

A rapid investigation is critical, even taking place in the middle of the night and ideally before the vehicle is towed or its contents disturbed. The defense attorney will either act personally or have an experienced investigator immediately interview witnesses, take written or video statements if possible, and take video and still photographs of the location. The defense attorney will obtain police and accident reports, and immediately have an experienced mechanic examine the vehicle for defects and, certainly, carefully examine and photograph its contents. For example, finding "beer cans in the trunk" may have a different interpretation than a police report that stated there were "beer cans in the vehicle." Open container violations are dependent upon the specific facts.

Any opportunities for preliminary or pretrial hearings or discovery of evidence and reports in the hands of the police or prosecutor should be carefully evaluated. Requesting a pre-trial hearing may or may not be the best tactic, depending on the circumstances.

Experienced defense attorneys will likely file motions with the judge to suppress various items of evidence. If a judge agrees to suppress this evidence, then it cannot be used at trial.

The following are a few of many issues that may be examined. Did the police officer have reasonable suspicion to make the initial traffic stop? What is the officer's training history, experience, and disciplinary record? Is there police video and what does it reveal? Is it complete or are there breaks or edits? What occurred before or after the video clip? What cannot be seen off camera? Was there a traffic or medical emergency that caused the defendant to swerve or run off the road?

Has the officer been adequately trained and certified in drug intoxication recognition, and is the officer able to distinguish unlawful intoxication from medical emergencies? Was an appropriate drug or alcohol assessment protocol followed? Was an appropriate field sobriety test protocol followed? If a breath test were administered, is the police officer appropriately trained and certified? Was equipment appropriately maintained, calibrated, utilized, and, additionally, cleaned prior to this use? If blood were drawn, was it a lawful search under both federal Fourth Amendment standards and state requirements? There are numerous court decisions on this topic that are beyond the scope of this brief comment. Was the blood appropriately drawn and preserved in an evidentiary chain-of-custody, and appropriately and accurately tested?

An experienced attorney will review the possibility of the case going before a Drug Diversion Court. Additionally, there may be a local practice of docket delay or deferred adjudication, essentially pre-trial probation in the discretion of the prosecutor.

Plea negotiations with the prosecutor are likely. Preparation and credibility are invaluable. Politeness, professionalism, and honesty are essential in creating a defense attorney's reputation with prosecutors, judges, and potential jurors. The experienced attorney knows what a reasonably possible plea bargain is in this specific situation and knows to prepare for plea bargaining with mitigating and exculpatory evidence. Is there helpful medical or psychological evidence? Was there an interaction between multiple prescription drugs or an interaction between a prescription drug and a modest intake of alcohol? Evidence that the client has remained alcohol or drug free, based on urine tests for example, and/or that the client is in an alcohol education or treatment program may be valuable. Are letters or testimony attesting to good character available? If the client is a student, are good grades and transcripts available? Are there potential problems with the prosecutor's evidence? In my opinion, a defense attorney must have a credible reputation as a trial attorney (and be prepared to go to trial) in order to effectively plea bargain. Is the defense attorney able to provide reasons for a plea bargain so that the prosecutor may be able to justify the plea bargain to others?

In the interest of brevity, this comment will not discuss a DWI trial in detail. However, a defendant has the right to confront and cross examine witnesses. Experienced attorneys carefully prepare in advance cross examination questions and potential objections, and always do so with a focus on their potential impact on the likely jury or judge. Likewise, are there defense witnesses? An experienced attorney never overlooks counseling the defendant concerning her or his appearance and demeanor inside and outside of the courtroom.

Will the defendant testify? In my opinion, the defendant almost without exception should testify if a decision has been made to go before a jury and there is the realistic possibility of a reasonable doubt of guilt under the existing facts. A jury wants the defendant to look at them and speak in her or his own words. Of course, a defendant may not be charismatic or a clear thinker or a credible and effective speaker. The defendant may have a past alcohol arrest record that may become admissible in evidence if, for example, the defendant denies "ever drinking." Much can go wrong. Consequently, an experienced attorney and the defendant must carefully evaluate potential defendant testimony.

An experienced attorney becomes very well versed in technology, medicine, accident reconstruction, and acceptable police protocols. One cannot be over prepared before entering the courtroom. State law determines the potential punishment upon conviction, depending upon the severity of the situation and if the DWI is a repeat offense. An experienced trial attorney carefully lays the legal foundation for a potential appeal of a conviction.

A DWI conviction has numerous collateral consequences. Most obviously, jail, prison time, and/or fines are possible. A DWI conviction may result in a loss of some professional licenses or employment under a moral turpitude standard. It may result in a loss or suspension of a driver's license although obtaining an occupational or otherwise limited driver's license may be possible. Ignition interlock devices may be required on motor vehicles. However, unfortunately, these devices measure alcohol and do not prevent drug impaired driving. A DWI conviction may either cause an outright loss of auto insurance or produce a significant rate increase. Probationary requirements, such as treatment programs, must be met. It may well provide evidence in a civil lawsuit for personal injury and property damage.

I urge readers never to drink alcohol (or use any other lawful or illegal intoxicant) and drive and to be aware of prescription medication side effects. A chauffeur, designated driver, or a taxi is always best. We cannot minimize or undue the tragic losses and lasting grief of the victims of intoxicated driving. Please, for the good of all, pledge to engage in responsible driving. If you have an addiction please seek professional help. You cannot conquer addiction alone.

This comment provides a brief and incomplete legal educational overview of a complex topic and is not intended to provide legal advice. Always consult an experienced attorney in all specific DWI and criminal cases.