By Daniel W. Wainscott
A DUI case can be almost a walk-through case, or it can be one of the most complicated cases a criminal defense lawyer will handle. This article is intended to provide practical tips no matter what kind of case you have.
When I was first asked to give advice on DUI cases to general practitioners and beginning attorneys, my first thought was to tell them to be nice to all of the magistrates and court staff–they can be a great help to you or they can make your life difficult. Many of you practice in larger counties that have numerous municipal courts and all are different. Take the time to learn the names of the magistrates and the procedures of each court–it will serve you well. They can actually help you with your case.
All courts are different, but the DUI code is uniform throughout the state, so learn it from beginning to end.
Three amendments are important (1) Interlock devices: Ala Code § 32-5A-191 (y) (1) (1975) requires that each person approved for pretrial diversion program must have an interlock device installed on their vehicle; (2) Section 32-5A-191 (m) (5) requires a defendant to pay a $100 mandatory fee when successfully completing a pretrial diversion program; and (3) Section 32-5A-191(p) (1) extends the period of time a sentencing court can consider a prior DUI from five to 10 years.
When you first meet with your client, have a detailed interview with them and cover all of the facts. Go over all of their paperwork, including the uniform traffic citation form (UTC), which is sometimes called the complaint. It is the charging document in a DUI case.
When I get a UTC, I immediately look for two things: which code section my client is charged under, and what their blood alcohol content (BAC) was. In some courts, a BAC of .15 or more excludes your client from entering a pretrial diversion program and may enhance the punishment. Be aware that § 32-5A-191 (i) provides that when a person convicted of this section has a BAC of a least .15 or more, he shall be sentenced to at least double the minimum punishment. It is also important to look at the UTC to determine if it properly executed and witnessed by the magistrate.
Make sure the prosecution can meet the predicates for admission of the BAC test. There are several.
The prosecutor must prove the predicate in that the police never let the defendant out of their sight from time of the traffic stop until the time the test is given.
The prosecutor must also prove that the defendant did not have anything to eat or drink for 20 minutes immediately before the test. If the arresting officer did not transfer the defendant from the scene of the arrest, then the transporting officer will likely have to testify.
The prosecutor will have the burden of proving the officer who administered the test is qualified to do so. If the UTC charges the defendant under § 32-5A-191 (a) (3) (driving under the influence of a controlled substance to the degree which renders the driver incapable of safely driving) and blood was taken, the prosecutor has to prove the chain of evidence from the place of arrest to the place where the blood was drawn and then from the place the blood was drawn to the lab that tested the blood. The lab must testify to the results.
Attorneys who represent clients in complex DUI cases often hire experts to counter the testimony of the prosecution expert witnesses. I recommend that you contact an expert to help in your cases.
Be sure to determine the class of driver license your client has. If he has a commercial driver’s license (CDL), he is considered under the influence at a much lower level. In addition, a CDL license is not eligible for any pretrial diversion programs. § 32-6-49.23
Look at the facts as to the probable cause for the traffic stop. If there is an improper traffic stop you may have grounds to move to dismiss the DUI.
When you file your notice of appearance with the court, also file your motion for discovery. Be sure to request all video taken of the arrest and the results of all chemical tests. You will be surprised at how often your client’s admission about drinking is recorded on body cams and dash cams. This is something you need to know.
If your client is charged under § 32-5A-191 (a) (3) (driving under the influence of a controlled substance), you must look at the discovery carefully to determine if blood was drawn and, if so, whether it was analyzed by the Alabama Law Enforcement Agency (ALEA) lab. If blood was not drawn and analyzed, it will be difficult for the prosecutor to convict your client. Also ask your client about his medical problems. Diabetes can cause your client to appear intoxicated.
When attempting to settle your case with the prosecutor, remember your client has an absolute right to a trial. Do not be afraid to use that right to your advantage. Sometimes pressing for a trial can reveal problems with the prosecutor’s case. For example, a crucial witness may be unavailable or a police officer may no longer be with the police force and that may not come to light until you have a trial setting.
The trial in the lower court can be used like a preliminary hearing as in a felony case. This is a great discovery tool. And remember this: you will initially be in district court or municipal court, and there is nothing done in those courts that cannot be undone by posting an appeal bond and giving notice of appeal to the circuit court of the county your case is in. Always demand a trial by struck jury with your appeal.
This article just barely touches the surfaces of this area of the law. New lawyers can represent their client successfully in most DUIs. But if there are injuries involved or if one feels uncomfortable, I would recommend associating a more experienced attorney or referring the case to another attorney.
I hope some of what I have written will help you to have great success in representing your clients.