DWI, The good, bad and ugly.
Posted by: Ed Chernoff
November 09, 2007

I would like to take a short break from the Brownsville report to discuss other matters. I just got back from a conference in Las Vegas, where I was able to study the newest techniques in DWI defense. I wasn't much impressed. Generally speaking, the entirety of the DWI bar seems shocked - shocked - to find out that juries on a national scale are becoming much less likely to acquit in Driving While Intoxicated prosecutions.

Why should anyone be surprised? For the last 25 years there has been an information onslaught from MADD and other organizations, and frankly, much of the information has been misleading. Oft time potential jurors come to court believing that an accused person is guilty if there is evidence that the person consumed any amount of alcohol prior to driving. That isn't the law, of course, but its no wonder jurors are confused considering the contrary information they receive.

During jury selection, I usually discuss the highway signs that inevitably pop up around Christmas time. They read, in the boldest print possible: "Drink. Drive. Go to Jail." I ask the people in the jury pool if they see anything wrong with that particular warning. Despite the clear mischaracterization of the law, very rarely will someone raise his hand.

Unfortunately, many of our clients are arrested based on that one misguided premise. The art of DWI traffic arrests has been "elevated" to a science with the acceptance of Standardized Field Sobriety Testing, but the reality on the street is that an arrest is still only based on the opinion of the officer who makes the stop. How someone performs on one leg is necessarily a subjective evaluation and if the officer's job is to make drunken driving arrests, as is typical with members of the DWI task force, he will err on the side of probable cause.

Money and politics have fueled increased arrests and prosecutions for "drunk" drivers. Politicos like easy issues, and who could argue against poor mothers who have lost children in automobile accidents? Federal money is given to a municipality who is willing to create a task force designed to arrest intoxicated drivers, and what city is going to forego federal funds? Conversely, why would the feds continue to fund such a force unless it produced stats to justify its existence? And so it goes.

One outgrowth of this increased prosecution is the enormous defense industry created to combat the government. This was abundantly evident in Vegas. For every session devoted to defense techniques, another was offered regarding the business and marketing of DWI defense. In fact, the largest contributor to the seminar appeared to be a DWI internet business, whose moniker was plastered everywhere in the auditorium.

Heaven knows I am not opposed to marketing for lawyers! It is absolutely vital in this day, both for the lawyer and the accused citizen. Most citizens arrested for DWI have never been arrested for anything in their lives and have no idea whom to hire. Without some means for them to obtain information about the lawyers in their community, it would be nearly impossible for them to make a reasonable selection. Most individuals in that position still hire based on referrals, but the Internet is catching up, mainly because of its unique ability to disseminate large amounts of information.

However, there is a danger in print media, whether in the phone book, direct mail or the Internet. It pains me to say this, but not everything written is the absolute truth. DWI defense is a good business in that many accused of that crime have money and are more agreeable to work with than those charged with more egregious crimes. Many lawyers, who claim to "specialize" in DWI law, have in reality only "decided" to limit their practice to DWI defense and have marketed accordingly.

If you log on to the marketing site that sponsored the Vegas seminar, it states in its legal disclaimer that it markets only one lawyer in any particular county. It further makes clear that the marketing site is only a paid advertisement and makes no endorsement or claim with regard to any of the attorneys listed. So what criteria does the site go by in determining what lawyers to advertise? Is the decision on who to advertise based solely on financial considerations?

Lord, I hope not! People need help out there. Normally, when someone calls the firm asking for help on a DWI case, I tell him or her the same thing. Treat your search for a lawyer with the same care you would use in searching for a job or a spouse. Hopefully that would involve an interview with more than one prospective! Don't hire on the phone. Don't be afraid to ask specific questions regarding experience and expertise. And trust your instincts. A flashy website - even our flashy website - should be the start of your inquiry, not the finale. Get it right the first time. Switching lawyers later can result in one heck of a messy and costly divorce.

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