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CHOOSING THE RIGHT LAWYER |
Texas DWI laws are both political and complex. Moreover, since the laws change so often and the consequences of even a first conviction are so severe, finding a lawyer who is experienced at handling these types of cases should be your top priority.
If you’ve never been through this before you probably don’t know who you should be looking for. Further, not knowing what to look for in a DWI defense attorney makes the challenge of finding the right lawyer even more difficult. You’ll need to find an experienced, competent defense lawyer who can explore factual and legal defenses, review your case for defects, move to suppress evidence, compel discovery of such things as calibration and maintenance records of the breath machine, negotiate for a reduction in charges, obtain expert witnesses for trial, protect your driving privileges and safeguard your constitutional rights. So where do you look?
Contrary to popular belief, local bar association referral services are not necessarily a good source of information since they do not screen for qualifications. You are simply given the next name on the list. Likewise, any lawyer can take out an ad in the Yellow pages, regardless of experience or ability.
The best way to find a good DWI lawyer is by reputation. The best approach is often to ask other lawyers in the region: Who is the best in the area? Other lawyers usually have a good answer to that question and may even be able to provide you with several names. Police officers, judges, other defense lawyers and court staff are also familiar, usually from first-hand observation, with who the best DWI lawyers are. Ask them who would THEY want to retain if arrested for DWI? Another excellent resource for finding an experienced and competent DWI lawyer is the National College for DUI Defense, a non-profit legal organization committed to the education and training of DWI defense lawyers.
Above all else you should attempt to retain an attorney who devotes the vast majority of his or her practice to the defense of DWI cases. No attorney can give you a guarantee on the outcome of your case, however, retaining a firm that emphasizes DWI defense will maximize the chances of a successful conclusion. If you do not have a sense of comfort and confidence after meeting with an attorney about your case you should look further.
When you meet with an attorney to discuss your DWI arrest be sure to check the following before you hire a particular lawyer:
§ Does the lawyer or law firm have extensive experience in DWI pretrial investigation and litigation?
§ Does the lawyer or law firm have a reputation for going to trial or for pleading cases guilty?
§ Do you feel a strong sense of confidence in the lawyer’s or law firm’s ability to professionally handle your case, and do you feel comfortable with the manner in which the lawyer communicates with you? Does the attorney listen to you or do all the talking? Does the lawyer seem genuinely interested in you and your case?
§ Is the financial arrangement clearly defined?
How long have you been practicing DWI defense?
§ What part of your practice is dedicated to defending DWI cases?
§ How many DWI cases have you handled?
§ How many of your cases plead guilty as charged?
§ Are you affiliated with the National College for DUI Defense?
§ What other organizations do you belong to that advocate aggressive DWI defense?
§ Do you own a copy of Texas Drunk Driving Law?
§ Have you spoken or presented seminars on DWI defense to other lawyers or taught attorneys how to defend DWI cases?
§ Are you familiar with the CMI Intoxilizer 5000 breath machine used in Texas?
§ Are you skilled in the proper administration of Standardized Field Sobriety Tests?
§ Will you handle my license suspension case in addition to the DWI charge?
§ Do you regularly appear in the court in which I’m charged?
§ Will the lawyer I hire be the lawyer who actually handles my case?
§ What will it cost to get a good lawyer?
How long have you been practicing DWI
defense?
Many qualified observers believe DWI litigation is amongst the most complex in our system of criminal justice. Developing an expertise in the area requires not only litigation skill, but extensive knowledge in the fields of constitutional law and criminal procedures, communication, police science and procedures, physiology, chemistry and chemical testing of breath and blood, field sobriety testing, accident reconstruction, the Transportation Code, the Alcoholic Beverages Code, pharmacology, toxicology, and other scientific disciplines, together with a command of the complex and ever-changing political and statutory scheme that regulates DWI prosecutions. In sum, expertise is not developed overnight. While there is no magic way to determine just how much experience is “enough” experience, the general rule is the more the better.
What part of your practice is
devoted to defending DWI cases?
DWI laws and techniques are constantly evolving. What was once a successful legal argument yesterday may not work today. Accordingly, it is important that your lawyer be on the cutting edge of what is happening in the courts every day. It is simply not possible for most attorneys to remain up-to-date on too many different areas of law.
How many DWI cases have you handled?
Again, experience counts. While there is no set number that will
determine when an attorney has developed the necessary skill and experience, it
is unlikely that handling an occasional DWI or trying just a few jury trials
would be sufficient.
How many of your cases plead guilty as
charged?
Unfortunately, many lawyers plead their
clients guilty in an overwhelming majority of their cases, sometimes even
before they litigate any legal issues pre-trial. In most cases, pleading guilty as charged should be a last resort
rather than a first option and should never take place until all the evidence
has been reviewed.
Prosecutors do not respect
lawyers who plead their clients guilty with any frequency, although they
certainly appreciate them. It is
important that the prosecutor in your case knows that the lawyer you bring to
court has the iron-clad resolve to fight as far as necessary to obtain the best
possible result for you.
Are you affiliated with the National College for DUI Defense?
The National College for DUI Defense is a non-profit
professional organization dedicated to the dissemination of information on
drunk driving litigation and to the improvement of the DWI Defense Bar. Its mission is to provide the best advanced
legal training to the DWI defense practitioner. The College, presented each year at Harvard Law School, limits
its class size in order to provide the best instructor/student interaction, and
offers personalized instruction and hands-on experience.
To what other organizations do you
belong that advocate aggressive DWI defense?
Nationally, the National Association of Criminal Defense Lawyers (NACDL) is an organization dedicated to supporting all criminal defense lawyers in zealously advocating for their clients, including those who represent citizens accused of driving while intoxicated. Membership in that organization indicates a commitment to the principles that are necessary for a strong criminal defense bar and to the fundamental concepts of our criminal justice system. On a local level, membership in the Texas Criminal Defense Lawyers Association (TCDLA) demonstrates a similar commitment.
Do you own a copy of Texas Drunk
Driving Law?
“Texas Drunk Driving Law” is a textbook designed to assist the DWI defense practitioner in honing his or her courtroom skills and techniques, and to keep abreast of developments in the law and science affecting Texas DWI defense. Many DWI defense lawyers in Texas consider this text an essential resource in DWI defense, and agree that an attorney cannot do a competent job of defending people accused of DWI without it.
Have you spoken or presented
seminars on DWI defense to other lawyers or taught attorneys how to defend DWI
cases?
The best trial lawyers are invited to participate on the faculty of drunk driving legal seminars for other attorneys. Others in the field generally recognize those who are asked back to speak again and again as leaders in the profession, a status not unrecognized by judges, prosecutors and police officers.
Are you familiar with the CMI Intoxilizer
5000 breath machine used in Texas?
Virtually every DWI case involves the law and science of breath testing. Even where a breath test is alleged to have been refused, the lawyer’s understanding of breath testing technology and the physiology of breath testing can be critical in successfully defending against the license revocation proceeding that will be initiated by the Texas Department of Public Safety. Obviously, if a breath test is administered, and a result is obtained, your lawyer’s skill in dealing with the many issues that will surround the breath test result at trial will often make the difference between a successful or unsuccessful defense. At a minimum, your lawyer should be familiar with and own a copy of the Texas Breath Alcohol Testing Regulations, together with a library of scientific articles exploring the issues relative to breath testing and its shortcomings.
Are you skilled in the proper
administration of Standardized Field Sobriety Tests?
Most DWI prosecutions include the results of so-called field sobriety tests, some of which have been subjected to scientific study and are approved by the National Highway Traffic Safety Administration, a federal bureaucracy. NHTSA’s studies have insisted that in order to be reliable, the approved tests must be administered in strict compliance with NHTSA standards and written guidelines. Accordingly, it is essential that your attorney know two things: which tests have been approved by NHTSA, and how the tests are to be properly administered.
Will you handle my license suspension
case in addition to the DWI charge?
In Texas, most every citizen who is arrested for DWI will have two cases against him, one is the criminal DWI charge, and the second is a civil license suspension proceeding initiated by the Texas Department of Public Safety. Many lawyers who do not aggressively defend DWI cases will only represent a citizen in the criminal case, but not in the license suspension proceeding, which is vitally important to the success of the DWI case. If your lawyer refuses to handle both cases you should probably look elsewhere.
Do you regularly appear in the court in
which I’m charged?
Each court throughout the State of Texas
has different procedures for handling cases that come before it. In courts having multiple judges, the
prosecutors can vary depending on the particular judge’s policies and
rules. Additionally, each judge has his
or her own approach to DWI cases.
Arguments that may be successful before one judge may not be successful
with other judges. Some judges are
known to be very fair when it comes to legal arguments or being willing to
ignore the politics of DWI and follow the law regarding reasonable doubt, but
are very tough when it comes to sentencing.
Other judges are believed to be a tough sell when it comes to the merits
of a case, but are more compassionate or flexible at sentencing. The same considerations often apply to
prosecutors that may be assigned to a particular court. Furthermore, a good relationship with court
personnel can often smooth the way through the complexities of the judicial
process. Simply put, success or failure
can hinge on the lawyer’s familiarity with the procedures and personnel of each
court.
Will the lawyer I hire be the lawyer who actually handles my case?
You probably want to be represented by a well-known, widely respected and experienced lawyer. But simply hiring such an attorney does not guarantee he or she will personally handle all aspects of your case. Some lawyers take on too many cases and then have associates handle the cases for them. These associates may not get the necessary supervision from the senior lawyer and may not have the experience or reputation you bargained for. Other partners, however, are likely to have well earned reputations of their own. Well-respected, experienced attorneys don’t usually go into partnership with someone who isn’t an equal, or nearly so.
Regardless, you are entitled to be represented by the attorney you retain, and to receive a full explanation of who will be handling the various aspects of your case each step along the way.
What will it cost to get a good lawyer?
Not surprisingly there is no easy answer to this question. Every case is different. Attorney’s fees vary, of course, usually depending on the reputation and experience of the lawyer or the law firm and the geographic location in which the lawyer practices. As with most professions, the more well known and skilled the attorney, the higher the fee. Lawyers or law firms who limit their practice to defending DWI’s will normally charge higher fees than lawyers with a more general practice. Each lawyer has something to offer. For some it’s a low fee or an easy payment plan. For others it’s an exceptional reputation and skills to match. It is rare that you will find both in the same lawyer.
Experienced criminal defense lawyers typically charge an up-front flat fee retainer that will cover all fees up to a certain point, at which time additional fees may be required. Some lawyers require additional fees to handle the administrative license suspension hearing or to litigate pre-trial motions. Others require additional fees only in the event of a trial. Beware lawyers who charge a comparatively low flat fee. A guilty plea is often the result.
Costs for such things as an investigator, service of subpoenas, expert witness fees, preparation of photographs, transcripts, and other exhibits, etc., are usually extra.
DO NOT hire an attorney unless and until you have a clear understanding of all of your financial obligations, which should be reduced to writing.