Understanding the Charges and the Challenges
No matter what state you practice in, no matter what laws are involved, you have to be able to defend your client. Every DUI case comes down to two major pieces of evidence against your client. One is a field sobriety test, and the other is the Breathalyzer test, if your client chose to take it. So as the DUI defense practitioner, you have to be able to defend your client's performance on the field sobriety test. More importantly, you need to be able to effectively cross-examine the police officers both on the administration of the test and how they grade your client's performance.
An example of an effective cross examination would be to get the officer to admit that he did follow the proper procedure in administering the tests, i.e. he did not follow the Field Sobriety Testing Manual in one or more aspects such as asking the operator if he were injured in any way from the accident that would effect his or her ability to perform the tests. Another effective tool relative to field sobriety tests and cross examination is that the officer has no baseline to assess your clients performance in another words the officer has never seen your client walk, talk, count, balance, or perform any task for that matter so the officer cannot say he failed or passed the tests with any credibility when he does not even know your client. Another point to make on cross is that an accident can be stressful, among other things, and a stressful situation can cause anxiety, nervousness and and lack of attentiveness which can effect ones performance on the field sobriety tests in a negative fashion.
Differences in strategy arise between a non-homicide DUI charge and one where vehicular homicide is involved. In your normal drunk driving case, non-motor vehicular homicide, the defense comes down to the field sobriety test, and maybe a Breathalyzer reading. However, in DUI homicide cases, the majority of the clients are taken to the hospital as a result of the accident. There is no Breathalyzer and no field sobriety test, but there is blood work so the big area of defense in motor vehicle or homicide cases most of the time is to exclude the blood results.
The major challenge in the DUI homicide case, where obviously someone has been killed, is convincing the jury to get beyond that and look at the facts of the case. Mitigation would come in the form of fault. In some cases the issue of who caused the accident that lead to the homicide is a live issue and if you can show that the victim caused the accident (by their driving) then you may be able to mitigate the harsh feelings toward your clients. In cases where the victims was in the defendant's car perhaps you can show that the victim had a higher alcohol level than your client and gave the keys to your client so that he or she had to drive. Defending against a blood alcohol reading as opposed to a breath result is more difficult. A blood test is much more reliable than a breath test so it makes it more difficult to defend cases where there is a blood reading as opposed to a breath reading. If you are involved in a motor vehicle case where the government has the blood reading from the hospital you will need to file a motion to suppress the results of the blood tests. Some grounds for such suppression motions would be that the hospital did not receive your clients consent prior to drawing the blood, that your client was incapable of providing consent due to his or her injuries or medication that was given in the course of treatment at the hospital.
For a murder charge of first or second degree, there have to be certain elements present: extreme or cruel atrocity on a premeditated murder, In a manslaughter case, the standard is that you had reckless disregard for the life of another. So there is not that specific intent that you had in a murder case. In murder cases the prosecution has to show that there was premeditation or extreme atrocity directed by the defendant to the victim. In vehicular homicide cases the prosecution must show that the actions of the defendant where such that he or she showed a reckless disregard for life of another, whether is a vehicular homicide or not. Say you have a motor vehicle homicide case and the authorities are trying to figure out whether to charge manslaughter vs. murder, it depends on the facts of the case. For instance, you have someone who is driving maybe five miles over the speed limit with a blood alcohol level that is right on the line of the legal limit, and someone is killed. He will probably get charged with manslaughter. However, if you have someone who is doing 120 mph going the wrong way down the highway with three times the legal limit blood alcohol, that may support a murder prosecution. I have not seen a murder prosecution in Massachusetts in a long time for a DUI case where there is a death, but I know in some states there have been quite a bit. I think it could be the difference is in the law as well.
I only practice the Massachusetts, so I cannot speak to the differences between the DUI laws in various states, but I do go to conferences throughout the country and we learn the different strategies and techniques for defendant DUI-Manslaughter cases. In Massachusetts, we have a new law that imposes a minimum mandatory sentence of five years in state prison, if you are convicted of a DUI manslaughter case. I am not sure that other states impose that minimum mandatory sentence. The new law is called Melanie's law and went into effect I believe in January of 2006. There was a young girl named Melanie Powell who was killed by a woman under the influence in a town south of Boston. Her grandfather spearheaded the change in the law.
I think in general the pendulum has swung in the way that courts treat DUI cases. The penalties are more significant, and I think you are seeing people get imprisoned and for a greater length of time than back in the early '90s.
The Role of the Attorney in Strategy Development
As a lawyer, you need to become involved in the DUI case right away, because there has to be preservation of the evidence. The car will be seized. You want to have an independent blood draw done, or you want to have the sample preserved so you can have your expert do a test on it. If the client does not contact you right away, the consequences can be destruction of evidence. Witnesses have to be are interviewed early enough before their memories fade or disappear, and you must work to preserve your client's rights at any court hearing.
A defense strategy in a blood case is to have the blood evidence suppressed. You do that by attacking the reliability of the blood test or the consent issue, that your client was incapable of giving consent to have his blood drawn. In situation where your client has a head injury as a result of the collision and is not clear in his or her thinking then they may be incapable of informed consent. Or where the hospital staff or emt's on scene have administered narcotics to your client to treat his or her condition prior to receiving the consent, then consent may have not been given voluntarily by your client. Another strategy is to prove the accident was not your client's fault. You always have causation; your client has not caused the death of another. If it is a two or three-car pileup on a highway, there must be an intervening cause. Maybe someone struck your client's car.
Before determining the strategy, you have to wait to see what evidence the prosecution has against your client, because that will direct you towards your defense. It might be multiple defenses. It might be causation. The blood draw was done inappropriately or done without consent. You might say: "My client was not under the influence. His blood was drawn six hours after the accident, and nobody knows what his blood was at the time he was behind the wheel. We only know what it was four or five hours after the incident," and with a blood alcohol level there is a curve that goes up and then down.
Using Experts and Analyzing Evidence
For an attorney to understand the scientific elements behind DUI vehicular homicide, you have to have a lot of training. I was a prosecutor for eight years, plus I have been to a lot of seminars and have spoken with toxicologists. You just have to study the toxicology.
Usually the defense attorney is not involved in a field investigation because that usually occurs within four or five hours of the accident, in Massachusetts. The accident reconstruction on a motor vehicle homicide is done right at the scene, and usually concluded within 45 hours. I would get the accident reconstruction report within 30 to 60 days, and I would then send it to my expert to analyze.
Experts are helpful in that they give a different opinion. Usually the accident reconstruction report is done by the police department, and it certainly puts blame at your client. An expert can pick apart that report and give different measurements and come to a different conclusion, that the accident was not the result of your client's driving. Experts are also useful in debunking myths about evidence and police procedure. I use an expert to talk about the blood draw. Was it an alcohol swab? Was your person diabetic? What sort of drugs did they administer at the hospital prior to getting the blood draw? How as the blood tested, by gas chromatography or some other method. What were the qualifications of the person who drew the blood, who tested it and who converted it to a breath reading, so I employ a forensic toxicologist in most of my cases of that nature.
The benefits of using experts are pretty obvious. They essentially give you a fighting chance. You have to combat the state's expert testimony. The downside of an expert comes when they are not prepared properly. They are subject to cross-examination and a well-trained prosecutor can dig into them and make good points. How much did you make today, did you go the scene and make your own measurements, where you told what to say by the client, did you base your opinion on your interview of the client or did you conduct your own investigation. Sometimes the money issue can be used against you, because experts are paid to render their opinions. However, I think their benefits far outweigh the disadvantages.
Other experts besides the accident reconstruction expert can be involved, depending on the factors in the case. You want to get a certified field sobriety test instructor if there was a field sobriety test given. You want to use the same forensic toxicologist on the Breathalyzer. Sometimes you want to use an expert for gait analysis, if the testimony is that your client was unsteady on his or her feet or appeared to walking in an unusual manner (the prosecution often uses the unsteadiness of your client at the scene as evidence of intoxication You want to bring in a neurologist for a head injury. So there are four or five experts you could potentially use.
Considering Settlements and Plea Deals
The trial can take three to four weeks. The length of the case can be affected by the number of witnesses or the style of the prosecutor. Certain judges may go faster than others. Certain juries will ask more questions than others. The major factors determining the speed of a case are the size of the case and the witness list. If the case is a good case, favorable to your client, you can probably move it along fairly quickly. However, many times, lengthening the time helps in cases like this, allowing people's emotions to calm down.
I think it is always best to initiate a settlement prior to the trial. You do not want to show up on the day of the trial and try to work it out, because you are not going to get your best deal. The DA has prepared the case, has prepared the victim's family for a trial, the judge is ready and the jurors are there.
Defending DUI Vehicular Homicide Cases
If you have a very strong case for the prosecution, they will not be willing to do any sort of settling, so you might have to take what the judge offers you. In a case that is not a strong case, or with extenuating factors, you might have a chance of working it out. The victims culpability, the age of your client, clients lack of criminal history, or health issue with you client. For clients, the most important consideration is how long they will have to spend in jail or how long are they going to be on probation, and how much money they will have to pay.
When it comes to deciding whether to try for a settlement versus defending clients in court, the clients understand that you are trying to work something out. You prepare them for this, maybe saying, "This is what I might be able to get for you but if I cannot get this. This is what you may have to take, because if we go to trial and lose, then we can end up with double the sentence." If the client is going to fight the case, you usually know that early on, and then you have to prepare them for trial.
If you do not have anything to go on, considering a settlement is a bad idea. However, in Massachusetts there is not a lot of plea bargaining because of the minimum mandatory sentence. Unless the prosecutor is willing to break down some of the charges, that is really not an option.
I think the strength of the case for your client may convince the prosecutor to break down the charges. Maybe a victim's family has some compassion for the defendant. Maybe they were in the same car or the victim and defendant knew each other, as opposed to a case of someone who was unknown to the defendant and was just driving down the road when the incident occurred.
The process of a typical plea negotiation is to indicate to the prosecutor that this is something that you might try to work out. Then you would have some discussion with the judge about resolving the case. You try to get the ranges of what the judge would be willing to give your client. Sometimes the judge will tell you that if the client wished to resolve the case by way of plea, the judge would give the client not more than seven years but not less than two in jail. Approximately fifty percent of these types of cases are pleas.
Overcoming Obstacles and Avoiding Mistakes
The biggest mistake I see in DUI defense is that sometimes lawyers do not know what information to seek. They do not have experience in these cases, so they do not know what they are looking for, they do not know what to ask for, and they do not really know the appropriate experts. One way for a lawyer to learn these things is to watch a trial involving a skilled litigator, take a CLE class on theses specific types of cases, take a class on the filing and arguing of discovery motions. Some resources I would recommend to educate DUI defense lawyers include the West criminal series on DUI defense, an excellent source, along with the continuing education training seminars, go to your local bar organization to find resources available in your area, or search the Internet for treatises or motions and memorandum filed on motor vehicle homicide cases. and fellow lawyers.
Another pitfall lawyers need to be careful of is the impact of the media on the case. My own personal view is that I do not speak with the media while the case is pending. I think the media can only hurt your case, because initially there is the report of the collision and the death. Many of the facts are inaccurate, and you have the potential of people from your jury pool reading those newspaper articles. That plays a part in people forming opinions prior to a full presentation of the evidence.
Certainly during jury selection you can try to mitigate those effects. When you interview potential jurors, you want to ask them if they have read anything or heard anything about the case, and if they have formed any opinions about the case based upon media reports. And if it is a very high profile case, where there has been a lot of coverage on it, you may want to file a motion to move and change the venue of the case to another county or another part of the state.
All the cases dealing with DUI vehicular homicide are difficult, because often someone who was not doing anything wrong has been killed. Whenever you have a death it is difficult, but certainly if the individual is young, such as a child or an unborn child, that makes for more difficult cases. Something I would not recommend is making statements on the courthouse steps about details of the case and try to show compassion as much as you can for all the parties involved.
As the law stands now in Massachusetts, my basic advice for DUI defense is to get in the case as early as you can, assemble a good, solid group of experts, and manage client expectations. Establish a good rapport and relationship with the prosecutor if you can. You have to know the field sobriety issues, and for the state's experts you have to be able to cross-examine the blood experts as well. You need to have a good handle on the scientific issues raised in the blood or Breathalyzer case, and strong litigation skills to be able to cross-examine a police officer.
The Future of DUI Defense
The Supreme Court has just decided in Diaz vs. Commonwealth of Massachusetts, a drug case, which we think will change a lot of scientific cases. The issue in that case was that in drug prosecutions in the Commonwealth, when drugs are seized and sent to the lab for forensic testing, the lab then sends a certificate indicating what the substance was and how much it weighed. That was prima facie evidence that the substance was a drug and the quantity. Now the courts have said they cannot do that anymore; they have to bring in the chemists who tested the drug and subject them to cross examination. I think this will apply to DUI manslaughter cases on the blood certificate as well. This will be good for defendants because it will make it a little more difficult to prove the case. I think it is more fair as well, because it gives the client the opportunity to cross-examine the person who conducted the forensic tests.
Some DUI laws are on the verge of change, which could impact homicide cases in the future. For example, in some states it is admissible to mention that your client refused the Breathalyzer. If your client is charged with DUI, taken to the police station, had an opportunity to take the Breathalyzer, and refused, in many states the prosecutor can tell the jury your client refused a Breathalyzer test. Massachusetts is one of the states where that is not allowed, but there is a movement to change the law.
Massachusetts' courts have ruled that allowing a prosecutor to do that infringes upon your right to remain silent. You are saying you do not want to take the test and you do not want to furnish evidence against yourself. When you do that, you are not supposed to be allowed to tell anybody that. I think the practical effect is that if you are on a DUI manslaughter jury and you hear that somebody had a chance to take the Breathalyzer and refused, the general consensus is that the defendant must have been over the legal limit and that is why he refused. I think that is how most people see it. The movement to change the law is rooted in the belief that by telling the jury someone refused the breath test they will be ore likely to convict, this movement will not succeed anytime soon. If there is a change in this aspect of the law the defense will have to learn to suggest to the jury why someone may refuse to take the breath test other than because they fear they may be over the legal limit.
ABOUT THE AUTHOR: James P. Geraghty
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