Outgunned But Never Outwitted: DUI/DOL Defense

WACDL Battle Plans for Managing Misdemeanors CLE

March 2012

By Patricia Fulton

“I'm alone and outgunned, scared and inexperienced, but I'm right.” John Grisham, The Rainmaker

I suspect that, like me, anyone who has represented a defendant accused of DUI has experienced feeling overwhelmed and outgunned.  Complicated science, trained and practiced witnesses on behalf of the government, confusing and constantly changing laws, all make DUI defense a difficult niche to practice in.

My goal is to share some techniques that I use to create a successful and efficient DUI defense practice so that you can get great results for your clients and live a balanced life.   While nothing can make practicing DUI defense easy – it will always comes down to hard work and knowing your case and the law better than anyone else in the courtroom – using the following tips help you outwit the prosecution.  I have also included examples of my forms and checklists in these materials and the additional electronic materials available through WACDL.

TOOL BOX

Just like a good carpenter has the correct tools in her toolbox to get the job done professionally, a good DUI defense lawyer needs to have some specific tools in her toolbox as well.   These tools help you access information that can help you get a great resolution to your client's case.

Public Records Request: I routinely use the public records act (RCW 42.56) to access information about my client's case.  This is particularly important for DOL hearings where I might not receive helpful information until a criminal charge is filed much later.   Public records are easy to access – many law enforcement agencies have an on line form to fill out and submit.  I request the following via public records requests in almost every case:

  • Audio and video recordings:   I submit request for any audio and video recordings of my client as soon as I am retained.  Do not rely on your client to inform you if they were recorded or rely on the police report to mention it.
  • Cad logs/journal logs: Want to know how long your client was detained on the side of the road before being arrested?  Want to know what information the officer had before he pulled your client over?  A public record request gets your answer.

CAVEAT: Remember – be careful what you ask for, you just might get it!  If you suspect that evidence relevant to your client's case will not be retained and therefore not available when charges are filed – you may not want to request it early.  I have included in the supplemental electronic materials a motion to dismiss for pre-accusatorial delay that I have had some success with when videos of my client are not retained.

Subpoena Duces Tecum: For items I cannot access via a public records request – I use a subpoena duces tecum.   A subpoena duces tecum will require a judge's signature and is governed by CrRLJ 4.8(b).  Information to access with a subpoena duces tecum:

  • Officer disciplinary proceedings.
  • Other police reports relevant to the officer's DUI investigation practices.
  • Blood draw and analysis information.

Breath Testing Records: For every case with a breath test or an earnest attempt to take a breath test, you must review the records related to your client's test and the machine used.  These records are available at the WSP Breath Test Section web site: http://www.wsp.wa.gov/breathtest/wdms_home.htm.

I have included in my examples the Discovery Report for a client's case and a portion of the officer's narrative describing the administration of the breath test.  The officer fails to fully describe the two invalid samples and is failure to follow breath test administration protocols after the second invalid sample.  See WAC 448-

Specifically, you should always review the following records for your client's breath test:

  • Discovery report data +/- 60 days from the date of client's breath test.
  • Simulator solution records.
  • Thermometer Certification Record.
  • QAP Records.
  • Instrument Repair Records.
  • Status Sheet, Case File, CAD Report.

Manuals and Training Materials:  In addition to materials specific to your client's breath test and the machine it was performed on – the WSP Breath Test Section web site gives you access to general manuals and training materials that you can use to defend your client.   These materials include:

  • Breath Test Program Policy Manual.
  • DataMaster Operator Manual.
  • QAP Protocol.
  • Simulator Solution Protocol.
  • Training Outlines.
  • NHTSA Training Manuals.
  • DRE Manuals.

The materials listed in the Trial Notebook Checklist in the attached materials may be accessed at the WSP Breath Test Section web site.

Public Defender/On Call Attorney Notes: Did your client speak to a public defender the night of his or her arrest?  Will this witness be helpful for your case?  I have my client sign a release (to me only) and request any notes the on call attorney may have made.

HELP CLIENTS HELP THEMSELVES

Many clients have the ability and the desire to help you resolve their case.  The key is providing clients with the information they need in clear, easy to follow instructions.

Clear and Accessible Information: Every person I meet with receives a packet of information that we review together.  This packet includes the following:

  • Summary of DUI law and procedures for criminal case and DOL hearing.
  • A “to do” list.
  • A DOL hearing request form.
  • IIL information (instructions, application form, & employer exception form).
  • Schedules for agencies offering the ADIS and VP.
  • Information on travel to Canada.
  • Copy of the retainer agreement for their case.

Referral for Alcohol/Drug Evaluation: Everyone leaves my office with a referral for an alcohol/drug evaluation and encouragement to get this done ASAP!  I also encourage clients to enroll in any recommended treatment as soon as possible.

DOL hearing request: I provide my client with a DOL hearing request and instruct them NOT to use the form provided by the arresting officer.  I pre-fill in my contact information and cross out the sections requesting case/citation number, arresting agency, and date/time of arrest/county of arrest.   These forms are available at:  http://www.dol.wa.gov/driverslicense/dui.html.

HAVE A TEAM

Surround yourself with people that you can rely on to help you serve your clients and look great doing it. This includes the people in your office and the people who you refer your client to.   The more professional your team and the better they treat your clients – the better you look. People you need on your team:

  • Alcohol and Drug Treatment Agencies: Find a well respected and reliable agency (or several) that you can develop a relationship with.
  • Bail Bonds Company:  While not an issue in many cases, when it is you want it to go smoothly.
  • Insurance Broker: SR-22 insurance can be expensive and time critical for clients.  I refer my clients to a broker who will walk them carefully through the process and answer all their questions (so I don't have to)!
  • Expert Witnesses & Investigators:  When you need extra help with a complicated case or a witness who can testify to a scientific or medical issue, hiring the appropriate expert can save you a tremendous amount of work and stress.

WORK SMARTER, NOT HARDER

I use a number of techniques to make sure that my time is spent as efficiently as possible.

Checklists.  I use checklists on every case, every time.  Checklists allow me to perform routine tasks accurately and quickly and free my brain up for more creative thinking.   I have attached examples of some checklists I use regularly and find invaluable.

For more great information on creating and using checklists, I recommend The Checklist Manifesto: How to Get Things Right, by Atul Gawande.

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