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DUI Frequently Asked Questions #3
Question:
Can I represent myself? What can a lawyer do for me?
Answer:
You can represent yourself - although it is not a good idea. "Drunk driving" is a very complex field with increasingly harsh consequences. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing and administrative license issues.
And be careful, because a lawyer can mess everything up for you. DUI law is a highly complex field and requires an experienced DUI attorney to accurately review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a plea, obtain expert witnesses for trial, contest the administrative license suspension, etc.
Question:
How can I find a qualified drunk driving lawyer?
Answer:
Research them. Interview them. Have they ever won a DUI trial? Have they ever successfully got evidence suppressed? Are they a trial lawyer or just a plea lawyer?
Contrary to popular belief, it is not a wise idea to obtain a referral from the local Bar association or referral service. When you call, you are simply given the next name on that list.
Caution: Beware of lawyers who simply refer you to other "top DUI lawyers" and who then receive a referral fee from those lawyers.
Question:
What will it cost to get a lawyer?
Answer:
This varies, of course, by the reputation and experience of the lawyer. Generally, the more skilled the attorney, the higher the fee. A related factor is the amount of time a lawyer devotes to his cases: the better lawyers take fewer clients, spending more hours on each.
The range of fees is huge. A general practitioner may charge only $500-1000 for a first time DUI; an experienced DUI attorney may charge up to $25,000 or more, depending on the facts. In addition, the fee may vary by such other factors as:
Is the offense a misdemeanor or felony?
If prior convictions are alleged, the procedures for attacking them may add to the cost.
The fee may or may not include trial or appeals.
Administrative license suspension procedures may also be extra.
The lawyer may charge a comprehensive fixed fee, or he may ask for a retainer in advance - to be applied against hourly charges.
Costs such as expert witness fees, independent blood analysis, service of subpoenas, etc., may be extra.
Whatever the fee quoted, you should ask for a written agreement. And make sure you understand all the terms.
Question:
What is the punishment for drunk driving?
Answer:
Again, this varies according to whether a good plea deal is worked out, which number DUI this is, whether you blew, and the level of intoxication. Generally speaking, a conviction for a first offense, without other cahrges, may involve a fine, a license suspension, attendance at a DUI education course, probation for one year, and possibly a weekend in jail. A second time offense usually requires a very short jail sentence or special alcohol intervention program followed up by house arrest. Additional punishment may involve community service, ignition interlock devices, AA meetings and/or impounding of the vehicle. A third time DUI is a felony and requires a Kansas legislated minimum of 90 days incarceration. A majority of this time can be served under house arrest if a good deal is worked out for you.
Question:
What is a "rising BAC defense"?
Answer:
It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of DRIVING - not at the time of being TESTED. Since it takes between 30 minutes and 3 hours for alcohol to be absorbed into the system, an individual's BAC may continue to rise for some time after he is stopped and arrested.
Commonly, it is an hour or more after the stop when the blood, breath or urine test is given to the suspect. Assume that the result is .10%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .07%. In other words, the test result shows a blood-alcohol concentration above the legal limit - but his actual BAC AT THE TIME OF DRIVING was below.
Question:
What is "mouth alcohol"?
Answer:
"Mouth alcohol" refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact.
Mouth alcohol can be caused in many ways. Belching, burping, hiccupping or vomiting within 20 minutes before taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine's reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times. A chronic "reflux" condition from gastric distress or a hiatal hernia can cause elevated BAC readings.
Question:
What defenses are there in a DUI case?
Answer:
Potential defenses in a given drunk driving case are almost limitless due to the complexities of the offense. Roughly speaking, however, the majority can be broken down into the following areas:
Driving. Intoxication is not enough: the prosecution must also prove that the defendant was driving. This may be difficult if, as in the case of some accidents, there are no witnesses to his being the driver of the vehicle.
Probable cause. Evidence will be suppressed if the officer did not have legal cause to (a) stop, (b) detain and (c) arrest. Sobriety roadblocks present particularly complex issues.
Miranda. Incriminating statements may be suppressed if warnings were not given at the appropriate time.
Implied consent warnings. If the officer did not advise you of the consequences of refusing to take a chemical test, or failed to give it to you, this may invalidate the DMV license suspension based upon a refusal to provide a breath/blood sample.
"Under the influence". The officer's observations and opinions as to intoxication can be questioned - the circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers as "failing". Witnesses can testify on your behalf that you appeared to be sober.
Blood-alcohol concentration. There exists a wide range of potential problems with blood, breath or urine testing. "Non-specific" analysis, for example: most breath machines will register many chemical compounds found on the human breath as alcohol. And breath machines assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and within a person from one moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-examination of the state's expert witness and/or the defense can hire its own forensic chemist.
Testing during the absorptive phase. The blood, breath or urine test will be unreliable if done while you are still actively absorbing alcohol (it takes 30 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, drinking "one for the road" can cause inaccurate test results.
Retrograde extrapolation. This refers to the requirement that the BAC be "related back" in time from the test to the driving. Again, a number of complex physiological problems are involved here.
Regulation of blood-alcohol testing. The prosecution must prove that the blood, breath or urine test complied with requirements as to calibration, maintenance, etc.
License suspension hearings. A number of issues can be raised in the context of an administrative hearing before the state's department of motor vehicles.
Question:
Where will court be?
Answer:
If you were ticketed by city police, most likely your case will be heard in the municipal court for that city. For example, if you were pulled over by the Overland Park police department, your case will most likely be heard in the Overland Park Municipal Court. However, municipal courts do not have jurisdiction to hear felony charges. Therefore, your case may be scheduled in the Johnson County District Court, even if you were pulled over by Overland Park police. If you were ticketed by the County Sheriff, your case will most likely be heard in the County Courthouse. Your ticket or order to appear should tell you where your court is. To be certain, call the phone number on the ticket to inquire.
