Advice for Attorneys:

The Attorney-Client Relationship

Representing the DWI Client

 DWI representation has changed so drastically over the past twenty five years that it has become its own subsection of criminal law.  If you pay attention to the cases coming out of the Appellate Courts (and yes you should) you can’t help but notice the large amount of cases dealing with DWI appeals.  You also have noticed that rules that apply in other areas of criminal law don’t apply in DWI representation. 

In order to stay on top of this ever changing scenario you have to be willing to commit to purchasing the essential DWI reading materials from the following list:

• Lawrence Taylor’s Drunk Driving Defense;
• Intoxication Test Evidence, second edition, Fitzgerald, West Group;
• Drinking/Driving Litigation Criminal and Civil, second edition, Nichols and Whited, West Group;
• Drinking/Driving Law Letter, Whited, Thomson West;

 Additionally, Westlaw offers the DUI Practitioner program on-line which offers the latest in the area of DWI defense as part of their West Law computer research tools.

In 2003, I joined the National College for DUI Defense (NCDD) after attending the latest in cutting edge seminars.  The College sponsors the four major DWI seminars in the country.  Perhaps more important is the College list server that keeps its members in constant contact with each other for strategy and research help.  The assistance of over six hundred of the top DWI attorneys in the nation is right at your finger tips.  The top experts in our field also contribute to the College and attend the seminars as speakers and presenters.  (see www.ncdd.com/sessions).

I also recommend “DUIblog.com” by Lawrence “Larry” Taylor.  Larry, the author of the Drunk Driving Defense book mentioned above, maintains this blog.  Larry’s blog will help advance your DWI practice just by keeping abreast of his writings.  A Google (or other internet search engine) search on various DWI topics opens a wealth of information to assist you in creating new ideas, attacks and strategies.

Of course, having a great library without reading the materials won’t help you.  You have to dig in and read the articles, bounce ideas off colleagues and invest in this area of the law in order to advance your chances of winning.  Talk is cheap in DWI defense, you have to be able to back it up in the courtroom.

 It is also important to maintain close ties to the DWI warriors in the jurisdictions where you practice.  Sharing tips and information (not just leeching from others but actually contributing) with your friends in this field can provide invaluable assistance to your trial preparation.  There is no better way to stay on top of information about testifying police officers than to network with your brethren in the courtrooms.

Never pass up the opportunity to watch experienced colleagues picking juries or during actual trial.  There is nothing like watching a great DWI lawyer actually putting techniques into practice.  You get to watch the effect it has on the jury while it happens.  The advantage of listening to the objections made by the State and the manner that police officers respond on the witness stand is invaluable.  It will also allow you to see which techniques don’t work and fall flat in front of the jury.

As you learn more about the DWI practice you will also begin to realize when a witness is blowing smoke while answering both the State and defense counsel.  I am amazed at what some of the better trained officers will testify to under oath and I have ordered a few transcripts in anticipation of crossing them on these points at a later date.

One thing about sworn testimony, it will always come back to haunt the witness if he makes a habit of making it up as he goes.  It also makes it apparent that many of the officers are actually being trained incorrectly and they can always be impeached by the training manuals.

The Attorney Client Privilege

  To most clients, the most important aspect of the attorney client relationship is the privilege that attaches to the conversations between the lawyer and the client. (see appendix #1)

The client has to know that what they tell us about the incident causing the arrest will not expose them to greater sanctions or contribute to a conviction.  In many Texas jurisdictions, sharing the facts with the State in an attempt to mitigate the case to a reduction will only prepare them for your trial strategy.  Never give up your case strategy unless there are facts in your favor that the State absolutely cannot put a spin on.

Many attorneys in the past and many current practitioners believe that if a person is arrested for DWI they need to be accountable and take a plea offer that includes a conviction for DWI.  Others believe that breath test and blood draw cases are unbeatable.  Nothing could be further from the truth and more blatantly violates the trust relationship between the attorney and client.

I have been hired on a number of occasions by a client to substitute in on the case because the present counsel has advised them that there is no way to fight the charge and they need to plea guilty to the DWI.  Some persons, even if they have technically violated the DWI stature, cannot withstand a DWI conviction.  To many of our clients, a conviction for DWI is a death penalty to their career or professional license.  Whether or not they did the crime (“and now must do the time!”) is not the only factor for the dedicated attorney to consider.  The real question to ask is; can the State prove their case beyond all reasonable doubt after all is said and done in a jury trial?

Only if the client instructs the attorney that they wish to enter a plea of guilty to DWI should that be done.  Only if the client has a full understanding of each and every aspect of the consequences of a DWI conviction can they make the educated decision to plea guilty.  They must also understand each and every reason why the case might be lost and the various grounds for attack in the case.  In today’s ever changing (for the worse) legal environment in the “War on DWI” a conviction must be avoided at all costs.

There are many fear tactics used my defense attorneys to twist the clients arm into signing off on guilty pleas to DWI.  Many attorneys tell the client it is the only way to avoid a jail term.  Others simply use their own techniques to avoid going to trial on a DWI.  The bottom line is simply that if you do not have a competent grasp of the issues involved in a DWI practice you should refer the case to an attorney that devotes time and resources to being on top in this area of the law.  This issue was not so important twenty years ago but today’s DWI conviction never goes away and the punitive consequences increase every time the legislature meets.

 Often times the judges will use psychological games in the courtroom to steer the clients towards a guilty plea.  I have objected when judges have the client reject the plea on the record and allow the prosecutors to remind the court that if the case is tried and a conviction had they will be requesting jail time currently not on the table.  I find this offensive and have seen it frighten clients into withdrawing not guilty pleas and entering into a plea of guilty.   

Yes, the courts have a duty to make sure that any plea offer has been conveyed to the client and rejected but they should never supercede the defense attorney’s job.  The attorney is an officer of the court and is under obligation to forward plea offers.  In these cases the defense attorney can assure the court on the record that the plea offer has been explained and rejected without further intimidation of the citizenry.

Lastly, once an attorney gains the reputation of being a plea lawyer the state will always know that the case is never going to trial and they will make a plea offer that is stricter than it would normally be.  We owe it to our clients to do the best job possible or decline the representation and refer the case to an attorney better equipped for DWI cases. 

Practice Nugget:  I often ask the client this question: what will a DWI conviction do to you right now or in your immediate future?  If the answer is something they cannot live with then the case must go to trial unless the State makes an offer we can’t refuse.  Sometimes the offer by the State to plea guilty is harsher than what a judge or jury will decide on after all the facts come out at trial.

Of course, to some clients the most important aspect of your representation is the avoidance of additional time in jail.  Some clients will plea guilty to a winnable DWI in exchange for eliminating the risk of spending more time in jail.

The choice is always to be made by the client after careful consideration of the information that you provide.

My office includes a “plea agreement letter” (see appendix #2) in each client file.  This allows for the client to have the plea offer in writing from one of our attorneys.  There is an opportunity for the client to review the letter and ask any questions that come to mind.  There is a signature block and the plea offer is either accepted or rejected once the client has all the information available to make the best decision in the matter.

 Client Types:

 I have found that there are basically four types of clients in the DWI arena.

First, there is the repeat DWI offender who brings in a ton of baggage to be addressed throughout the representation period.  There is the issue of whether you have a duty as an attorney to help identify any substance abuse problems and help the person with getting much needed treatment or merely do your job as the advocate on the criminal case.

The second type of client is the career criminal who happens to pick up a DWI during the everyday occurrences of his daily meanderings.  These individuals are generally treated differently than you other DWI clients because in plea bargaining their past is always considered in the recommendation given and it usually includes a DWI conviction.

The third type is the underage drinker who with out the proper guidance and legal maneuvering can become one f the first two types over the years to come.  The stigma attached to a youthful client with a DWI conviction can impact the rest of his life.

The last and most frequent type of DWI client is the first time offender with no criminal history who has incurred his first encounter with law enforcement outside of the occasional traffic ticket.  These clients have no understanding of the journey they are about to encounter and often think it is a simple matter for the attorney to explain to the court that they are good law abiding citizens and the case will be dismissed.  These include members of the business community, professionals, blue collar workers, students, lawyers, cops, judges and the list goes on. 

Each of these types has its own specific concerns and problems attendant to it as well as the common problems that each share.  The best way I have found to handle the clients is to break your representation into categories and then apply the category that fits the needs of the individual client.  This mirrors the manner that DWI representation can be broken down into categories of elements such as traffic stop, initial officer/client interaction, field sobriety tests, breath/blood evidence, admissions/statements, etc. 

After getting the client on board the first thing you have to do is begin your own investigation into the determining what the ingredients of the case are.  Important questions to ask yourself concern: who is the client (which type does he fit into); who is the arresting officer; what are the facts listed on the offense report; what was left out of the offense report; what did the officer fail to do; are there witnesses to events that occurred prior to, during and subsequent to the arrest; what does the video tape of the arrest reveal; are there mitigating factors concerning the various facts of the arrest; and are there specific issues about the client that contradict evidence.

Client Interview Packet: 

The process of filling out the “Client Interview Packet” should be combined with your initial interview but is too time consuming to complete during the initial consultation.  The client interview packet (appendix #1) is one example of what a thorough investigation will require to begin to answer the questions about the case that must be answered in order to properly defend the case.  I have broken down portions to show why the information is necessary.  The complete document is available as Appendix One.  Each lawyer should adjust the interview questions to address issues that are of importance to the jurisdictions where they practice.

The Interview Packet discussed above is not the long form that we send home with our clients to study, fill out and return.  The long form was created by Bubba Head and is attached as Appendix #3. Also, see Appendix #4 for another form that is necessary in order to cover many of the medical bases you will encounter in this field.

SEMINARS AND CLE: 

The following list covers the most talked about seminars in the DWI field and it is imperative to attend at least two of these a year to stay on top of your game.  The DWI practice changes so fast that if you go every other year your clients will suffer and you will regret being so far behind the eight ball.

NCDD Seminars: 

• Winter Session
• MSE (co-hosted by TCDLA)
• Cambridge (at Harvard law School) Summer Session
• Fall Session (Las Vegas Seminar co-hosted by NCDLA) 

TCDLA Seminars: 

• Top Gun DWI – Houston, Texas
• Stuart Kinard Memorial Advanced DWI – San Antonio

Certifications (are available in the areas of): 

• SFST Practitioner Class (three day class)
• SFST Instructor Class (a full week long class for only the most enthusiastic lawyer )
• Intoxilyzer 5000 - Technician and Maintenance (for those with a great volume of breath test cases since it takes a week and is usually out of state)
• DRE Classification – (very advanced and a full week long class)

The testifying officers will all have SFST certification within the next few years if they have not already attained it.  TCLEOSE is requiring the certification for all newly trained officers in order for them to receive a Peace Officers License.  I have obtained the same training and certifications as the testifying officers.  I recommend the SFST Practitioners certification for any lawyer that will be taking a DWI to trial.  If the testifying officer does not have the certificate you will have your way with him on cross.  If the testifying officer is certified you will know all he knows about the tests and can catch him if he tries to cheat.

You will be amazed at the amount of information the officer has forgotten or gotten mixed up from when he took the class.  I have never heard of an officer “failing” the class.  They are either incredibly intelligent or some of them get promoted through the class to move them out.  Regardless, the certification will open your eyes to the hidden secrets of the SFST program.

  © 2008 DWI DUDE - All Rights Reserved.

If you are looking for an exceptionally trained and educated, DWI / DUI attorney to aggressively represent you on your DWI case or any criminal matter, call 512.278.0935 (Austin) or 210-DWI-DUDE (210.394.3833) (San Antonio) or contact me by e-mail at jamie@dwidude.com

If I am in trial, my personal assistant Ashley Nichols can assist you.
Click here for an immediate response: ashley@dwidude.com