DUI 2nd and 3rd Offense and the Real Focus - Alcohol

December 3, 2012

In a recent article, I pointed out that the ultimate focus in any DUI case that doesn't get dismissed for some defect in or lack of evidence is about the Driver's relationship to alcohol. To anyone facing a 2nd or 3rd Offense DUI, this is obvious on several levels. This article will continue that discussion as it relates to anyone who has already had a DUI, and should prove equally informative to anyone who has never been through anything like this.

There is a good chance that if you have been Arrested for a 2nd or 3rd DUI, you are required to submit to some kind of alcohol (and often) drug testing as a condition of your Bond, or release. So much for the presumption of innocence, then...

Alcohol Rope 1.2.pngIn the real world, especially as it relates to DUI cases, the Court system struggles to even pay lip service to the presumption of innocence. Remember, the purpose of Bond, in the first place, is to make sure you show up in Court and don't just run away. Bond, in that sense, is like a kind of "deposit." How does any kind of alcohol testing help insure (or not) that a person will show up for Court? The fact is, this kind of testing has NOTHING to do with insuring a person shows up to Court, and has EVERYTHING to do with the undisputed, if unspoken, belief that a person charged with a DUI is guilty.

There is a reason for this belief, however. It's not that Judges just pick this stuff out of the sky. In the course of their various careers, most Judges will handle thousands, if not tens of thousands, of DUI cases. By contrast, those same Judges will ever only wind up dismissing a mere handful of DUI cases, if they ever dismiss any, in all those years on the Bench. When a case is "knocked out," it's almost always because of some technical defect or shortcoming in the evidence. Very often, the problem lies with how the evidence was collected or tested, meaning there is some question as to the scientific, and therefore legal reliability of the evidence. Very seldom does anyone go to Trial in a DUI case and prove they were Sober.

The bottom line, at least to a Judge who sees thousands upon thousands of DUI cases, is that practically no one comes into Court charged with a DUI who hadn't been drinking, and had a few too many. Once in a while I'll get a DUI case where the Police failed to obtain breath or blood evidence, but that's a lot different than arguing that someone with a .12 (one and a half times the legal limit) or even higher breath test wasn't really over the limit.

If we're going to be really blunt about it, then, that means that when Dan the Driver goes to Court after having been Arrested for DUI, and having blown a .12 (or higher), the Judge isn't really thinking "Well, Dan is presumed innocent, so his breath test of .12 means nothing at this point. I wonder if the prosecutor will be able to prove Dan really was driving while intoxicated?" Instead, the Judge might figure that maybe, if Dan gets a really good Lawyer, and catches a lucky break, there might be some technical hiccup with the evidence and with a slick legal maneuver, Dan might be able to wiggle out of the charge.

In other words, Judges don't really question that people charged with DUI have been drinking. Or driving. If you're reading this, and you are required to test, there isn't much more to say. If you have been through a DUI before, then you know what comes next...

The net result of any DUI case that doesn't get "beaten," meaning dismissed or thrown out for some reason, is a load of real-world consequences (meaning classes, counseling awareness and prevention programs and the like), all focusing on alcohol. Of course, everyone's first concern is staying out of Jail. With very few exceptions, at least for me, accomplishing that is not a problem. Yet I don't consider it much of a success to just keep a Client out of Jail, only to have them pounded with endless classes, counseling and testing.

Consider this simple reality: Almost no one ever goes to Jail for a 1st Offense DUI, yet practically everyone winds up doing at least some kind of classes, counseling or testing. So what does that indicate about where the focus of the Lawyer's efforts should be? If you hire a Lawyer whose sales pitch is just "stay out of Jail," and you're not going to Jail in the first place, what have you really paid for?

I come at this in a very different way. Because alcohol, and by that I mean; alcohol breath and/or urine testing, written

Therein lies the crux of the problem: "At risk" in the clinical sense is one thing, but it winds up taking a lot less to be found "at risk" by the Court system. Yet the Court is supposed to apply the Clinical standard when it tells a person what to do. The whole screening process requires a person to take a written alcohol assessment test. These are (supposedly) clinical tests, although, in truth, almost every test used by a Court is a kind of "over-the-counter" job very much unlike those used by actual substance Counselors. From a Judge's point of view, if you're in front of him or her for a DUI, much less a 2nd or 3rd Offense DUI, then a certain degree of "risk" is already present.

I have to make sure we redirect the Judge's focus back to the clinical standards the Court is supposed to use. Being Arrested for a DUI mandates that you will be assessed for risk of an alcohol problem. The test you will take includes measuring the impact of your legal situation as part of its assessment. The natural, but mistaken inclination of the Judicial system to look at the test results and then place them in the context of a legal situation (a DUI) all over again means you're getting double-penalized for the same thing. This is fine if little Susie gets detention in school for talking in class, and then comes home and gets in more trouble for getting in trouble in school. But it doesn't make sense for little Susie to get detention in school for talking in class, and then get detention for getting detention.

In a DUI, this should be limited to Don the Driver "taking his medicine" in Court. If when he comes home later, his wife wants to blow a gasket and put him in the "dog house," well, that's fine. In Court, however, the Judge needs to be reminded that things like "the seriousness of the Offense" and the risk to others and all that was part of the alcohol assessment process. And that whole "process" takes place under the direction and supervision of the Courts Probation Department.

The "process," sometimes called a "screening" or a "PSI" (standing for Pre-Sentence Investigation) is legally required for anyone who pleads to or is otherwise found Guilty of any alcohol-related Traffic Offense, like a DUI. The result of this process is a written Recommendation sent to the Judge, advising him or her about how well or poorly the person did on the written alcohol assessment test, and what other factors the Probation Officer determined should be taken into consideration as part of the recommended Sentence. This is why I thoroughly prepare each and every one of my DUI Clients for their assessment and interview with the Probation Department, and why I spend about 2 hours, at the very first meeting, going over it.

Make no mistake about it; Judges are inclined to follow these Recommendations rather closely. If the reader has a previous DUI, then you already know your Judge undoubtedly followed that Recommendation to the letter, or darn close to it.

It really boils down to this: The strictly "legal" aspect of a DUI pretty much ends with a case being thrown out or not. The skills of the world's greatest Trial Lawyer who has never lost a murder case in his or her career is of precisely ZERO benefit in a DUI case that doesn't get dismissed or result in a "Not Guilty" verdict. If a person does not, somehow, "beat" the charge, then all the legal tactics in the world lose their relevance, and the only thing left, and the only thing that matters, is the Court's focus on alcohol. Everything that will happen (or not) will center upon alcohol, and your relationship to it. Having a Lawyer who knows the Clinical criteria used in assessing "risk" and who has specific training in the criteria that matters for the whole rest of the case gives you a huge advantage. Given that all of the consequences you will actually get in a DUI case center around alcohol, having a Lawyer who can actually protect you from them only makes sense.