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TOP 10 MISTAKES BY LAWYERS 1. I DON’T NEED TO GO TO TRIAL AND WIN AN OWI, I CAN PLEA BARGAIN ALL MY CASES
Every prosecutor in
every county knows ‘who’s who’ in the lawyer kingdom when it comes to trials
and contesting OWI cases. A proven and experienced track record is essential
to achieving better plea bargains and having a fair opportunity to win OWI
cases. If a lawyer automatically determines that he fears a trial, or, for
whatever reason, will not take your case to trial, then there really is no
meaningful evaluation of your case. There is no evaluation of whether there
is reasonable doubt that would win the case, since the case will never get
to trial. THE PROSECUTORS KNOW WHO IS BLUFFING AND WHO WILL GO TO TRIAL! 2. THE FACTS DETERMINE THE CASE - THE LAWYER JUST PRESENTS THE FACTS This is law professor thinking. Certainly some facts are built into the case. However, facts are relative to perception, credibility, objectivity, fairness, competence, and expertise. Let me give you an example. Many times I have been faced with an OWI case with a .19 or greater Datamaster result. That one fact might scare many lawyers from the case. But after investigation, often we learn that the .19 is subject to either operator error, or, machine functioning error, and, that the videotape of my client shows her to be in reasonable control of her faculties - a fact that overrides and is grossly inconsistent with a reported .19% BrAC. I have received 'not guilty' verdicts in at least three (3) jury trials with the foregoing scenario. So, the fact of the .19 becomes a non-fact and is greatly discounted or even dismissed by the jury in its evaluation of the case. 3. I AM NOT A SCIENTIST - I AM A LAWYER - IT IS NOT MY JOB TO KNOW THE WORKINGS OF THE DATAMASTER Like it or not, if you intend to challenge OWI cases, you simply must know fundamental information about the breath test instrument and its workings. You must also know about the APPROVED METHOD and the legal and scientific reasons for the method. You should also be familiar with the science supporting breath testing as a method of determining intoxication or impairment. 4. "I CAN’T...I CAN’T...I CAN’T...I CAN’T... Certainly, there are things that you can’t do evidentiary-wise or fact-wise with your cases. However, there is so much that YOU CAN DO. Many lawyers make the mistake of giving up on their case before trial. This is a disservice to the client and, it demeans the representation in general. You can recommend a plea bargain in difficult cases, but ultimately, if the client chooses to go to trial, you must develop a positive attitude and believe that you can present a good legal defense. 5. I CAN DO DIVORCES, REAL ESTATE, ESTATES AND SOME CRIMINAL WORK Criminal defense has developed and evolved into one of the more difficult areas of law to competently practice. Although I do not demean lawyers who strive to represent people in various areas of the law, I know from my own experience, when I tried to handle different kinds of cases, that there is just too much to keep up with. New developments in post-conviction relief rules, evidentiary rules, and recent OWI cases, make ‘dabbling’ in defense of criminal cases, and especially OWI cases risky for effective representation. I think a client is better served by hiring a criminal defense lawyer. At a minimum in an OWI case, for the best representation, hire a lawyer who belongs to the National Association of Criminal Defense Lawyers, or, the National College for DUI Defense.
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I have been a lawyer for more than 20 years now. The most important segment of the trial, by far, is the selection of the jury. The failure to establish rapport, to educate, and to evaluate those people who will determine your client’s fate is a glaring error. There is no better feeling as a lawyer than having the jury do exactly what you ask/tell them to do in your final argument, and, thereby confirm your selection of those people as fair and impartial judges of the 'not guilty' evidence. 7. A HIGH BREATH TEST AUTOMATICALLY IS A LOSING CASE In my OWI practice, I could care less about the breath test number by itself. Once you know the fallibility of the machine test, you become much more concerned with the totality of the case such as client/defendant performance on the videotape, driving behavior, appearance, and credibility. 8. DEPOSITIONS ARE A WASTE OF TIME, I HAVE THE POLICE REPORTS A good deposition is like a mini-trial. That is not to say that you approach the deposition in the same adversarial way you would approach the trial, rather, it allows you to eyeball the witness, to learn his cadence and speech, to lock in favorable answers and, to require articulation or specificity when he refers to his police report, training, and observations. A deposition also allows you to avoid surprise at trial. One final benefit of the deposition is that the prosecution attends and listens to the testimony. Countless times after deposition I have been offered the favorable plea bargain that my client was seeking and many times that includes NO OWI CONVICTION. 9. MY CLIENT’S PRIOR OFFENSE(S) DO NOT BEAR ON THE PRESENT CASE In Indiana there are at least three (3) recidivist or repeat offender consequences for OWI. First, and most serious, Indiana has a habitual substance offender statute that could yield up to 8 additional years in jail if filed against a client with two (2) or more prior offenses. Second, a felony OWI in Indiana usually involves a prior offense within 5 years of the current charge. Finally, habitual traffic violator status is imposed on OWI offenders who accumulate three (3) OWI’s in a ten (10) year period. Therefore, the prior offenses can be an important part of the case. Your lawyer must examine the validity of the prior offense and determine if post-conviction relief might eliminate one of those offenses. 10. HIRING A TOXICOLOGIST IS A WASTE OF MONEY My experience is that a successful OWI defense nearly always includes the testimony of a toxicologist. In my cases, a representative from the American Institute of Toxicology typically testifies about three (3) areas of the case: a. A calculation of what an approximate breath or blood alcohol score would be given facts about the number of drinks consumed, food ingested, time involved, and burn-off factor. b. An evaluation of police procedure as it pertains to the standardized field sobriety tests [NHTSA tests], and, an evaluation of the officer’s administration of the breath test as it is relevant to the APPROVED METHOD. c. If there is a video, an evaluation of the functioning of the breath test machine on the date in question, and, an analysis of the machine repair and maintenance records. Do yourself a favor, hire a competent toxicologist to defuse the tension between LAW & SCIENCE as it pertains to that most holy of grails in Indiana - the BAC DataMaster.
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© Copyright 2005 Sam Shapiro Attorney At Law. All Rights Reserved |
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