Despite a concerted effort over the last few decades by both public agencies and private advocacy group to warn motorists about the dangers of drinking and driving, arrests for driving under the influence (DUI) are still relatively common. Unlike many other crimes, however, the defendant in a DUI prosecution is rarely a career criminal. On the contrary, the average DUI defendant has no previous criminal history. The lack of a criminal history, however, does not negate the fact that the individual may be guilty of driving under the influence in the instant case. Whether you are a DUI defendant, or a loved one, that may lead you to wonder how DUI attorneys defend a guilty client.
DUI Prosecutions before Chemical Testing
Ever since the ability to quickly, easily, and legally test a motorists BAC level has been available to law enforcement agencies across the country, cases involving driving under the influence have gotten much easier for the prosecuting attorney to prosecute. Prior to the widespread use of chemical testing, prosecutions for DUI were based on laws that made it illegal to “operate a motor vehicle while intoxicated” or to “operate a motor vehicle while under the influence of alcohol.” While that sounds clear enough, it was far from clear. The prosecuting attorney was charged with convincing a judge or jury that the defendant was “intoxicated” or “under the influence.” Remember, this was also before dash cameras that showed the traffic stop. Unless the officer testified that the defendant was falling down drunk, there always remained an argument for the defense that the defendant was tired, on medication, etc. Then there was the problem of defining the line between “I had a drink” and “intoxicated.”
Chemical testing, however, changed all of that. It allowed states to change their DUI laws by simply making it a crime to operate a motor vehicle with a BAC level above 0.08 percent (now), thereby taking all the guesswork out of defining “intoxication” or “under the influence.” It then allowed the prosecuting attorney a key piece of evidence – the test results – with which to secure a conviction.
The Reality Is – Most DUI Defendants Are Guilty
In the new era of chemical testing, the reality is that most DUI defendants are guilty. If the chemical test results show less than a 0.08 BAC level, the prosecutor will rarely file charges against the suspect; although, it is still possible to be convicted of DUI with a BAC level below 0.08, but that’s a discussion for another day. Therefore, most DUI attorneys are dealing with a case where the client is, technically speaking, guilty.
Determining Guilt Isn’t a DUI Attorney’s Job
Whether a client is guilty or not, however, doesn’t concern a criminal defense attorney. It is not a DUI attorney’s job to determine guilt unless that knowledge impacts how the attorney plans to handle his/her representation of the client. For example, if the client wishes to consider a plea agreement, the attorney must discuss the issue of guilt with the client because the attorney cannot negotiate a guilty plea agreement for a client who maintains his/her innocence. More importantly, the judge won’t accept the agreement without the client admitting his/her guilt.
DUI Attorneys Protect a Client’s Rights
The job of a DUI attorney is to protect the rights of a client and to ensure that the client is not convicted – whether guilty or not – unless the prosecution has met its burden of proving the defendant guilty beyond a reasonable doubt. A DUI attorney’s defense of a guilty client, therefore, will focus on those two objectives and may include steps such as:
- Analyzing the traffic stop to determine if it was legal
- Watching the dash cam video to see if the officer conducted the investigation properly and to see if the client was detained illegally.
- Watching field sobriety tests to see if the client should have passed the tests
- Investigating whether or not the breath test machine was operating properly and was recently calibrated.
- Finding out if the machine operator was properly trained
- Investigating other potential causes of a BAC level higher than 0.08, such as medications or objects in the client’s mouth at the time of the test
- Asking questions about what the client consumed, both food and alcohol, leading up to the arrest
- Calculating what the client’s BAC level likely was at the time he/she was actually driving to determine if the “Rising Alcohol Level” defense applies.
Contact DUI Attorneys at Petersen Law Office
If you were recently arrested and charged with driving under the influence (DUI) in Nebraska, contact a DUI lawyer at Petersen Law Office 24 hours a day at 402-513-2180 to discuss your case with an experienced DUI defense lawyer.
Attorney Petersen was invited to join the National Advocacy for DUI Defense (NAFDD) organization in 2013. NAFDD vets thousands of lawyers and only chooses those who have achieved stellar results in DUI defense cases. Attorney Petersen was named one of the Top 50 defense attorneys in Nebraska out of more than 5,000.
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