DUIs: When Do You Need a Lawyer?

Will you need to hire an attorney to handle your DUI or DWI case? What about the public defender?

If you've been reading through the DUI section of Nolo.com, we've assumed that you do not have a lawyer. You have handled your own arraignment, obtained a copy of the police report, and read up on the field sobriety tests, the preliminary alcohol screening (PAS), and the required blood or breath test for blood alcohol concentration (BAC). You have done at least a preliminary assessment of your chances of winning a trial. Now you must consider whether you need to hire a lawyer.

Getting a Lawyer's Opinion About Your Case

Now that you've formed some opinions about the strength or weakness of your case, it would be a great idea to get an experienced lawyer's opinion about your conclusions. You may have missed something important or you may have got it right. In either case, it's probably worth it to get an expert's opinion. The question is, will you be able to find a lawyer in your community who will do this for you for a reasonable fee? Find out by calling lawyers who specialize in DUI defense asking if they provide this initial stand-alone service. See "How to Find a DUI Attorney," below.

You Don't Need a Lawyer to Plead Guilty

In a first offense, non-injury DUI case where the certainty of conviction is high, there is nothing a lawyer can do for you that you can't do for yourself. You don't need a lawyer to help you plead guilty at the next court hearing (or the case settlement conference or whatever it's called in your state). And whether or not a lawyer is representing you, a guilty plea is by far the most common result in DUI cases. If you do hire a lawyer and you're in court and you see people who are representing themselves plead guilty and receive the standard sentence, and then you get up with your lawyer and plead guilty and also receive the standard sentence, you may wonder why you paid the lawyer $2,000 (or more).

Here are the two situations in which you will probably plead guilty sooner or later:

  • High BAC. If the mandatory blood or breath test put you at well over .08 BAC, you will likely be convicted of that aspect of DUI if you take it to trial. Your chances of conviction may be over 90% if your BAC is .08 to .11 and near 100% if your BAC is .20 or greater. And, in a number of states, the punishment will be worse if your test shows a level above .15 or .20.
  • Irrefutable evidence that you were drunk. If a police officer or a witness testifies that you were driving like you were drunk, and the field sobriety tests and chemical tests back this up to some degree, you will almost certainly be convicted of driving under the influence even if your test shows a .08 or less.

Using a Lawyer to Plea Bargain

As the zone of uncertainty increases, plea bargaining becomes possible and the benefit from hiring an attorney increases. For instance, if the test shows a BAC to be .09 or .10, the field sobriety tests are inconclusive, and no untoward behavior jumps out, the prosecution may be willing to change the charge from DUI to a lesser offense, such as reckless driving—a much less serious offense that in many states may still a misdemeanor, but which will result in a far less-harsh sentence. Reckless driving is often a fallback position for prosecutors who don't feel they can win a DUI case or who don't think the facts justify a trial. This is what's known as a "legal fiction" in that there need not be any bad driving whatsoever. The recklessness is implied from having sufficient alcohol in your system to risk damage or injury.

In a handful of states, there are two varieties of reckless driving that are used in the plea bargaining context: a regular reckless driving charge and something known as a "wet reckless." A wet reckless is when a charge of DUI is reduced to reckless driving and the record shows that alcohol was involved in some way. A wet reckless typically will not require jail time although probation is a possibility. Nor will the court likely require a license suspension (although the state's DMV might suspend the license regardless of the reduction of charge). The fine may be less and a less intensive DUI school may be required. However, if you are charged with DUI in the future (within a period of time usually spanning seven to ten years), the wet reckless typically will count as a prior. Finally, insurance companies view this charge as equal to a DUI in terms of rate increases. The legislative purpose in passing this type of law is to encourage plea bargains in close cases—giving defendants a reason to plead guilty and yet giving to government a way to get convictions.

Let's be clear. Many DUI defendants successfully do their own plea bargaining in situations where bargains are freely given (for instance, marginal test scores like .09, or where there was no evidence of possible harm to the community). But if you are further out on the margins of when the prosecutor feels obliged to obtain a DUI conviction, bringing in a lawyer to do it for you can pay off big time.

If you are trying for a reduction in the charge to a wet reckless (or just reckless driving in states that don't have the wet reckless provision), the chances are great that an attorney with a preexisting relationship with the prosecutor will have much better luck than you will have on your own. After all, plea bargaining is an art form that involves a combination of legal knowledge, experience, and poker skills. The prosecutor may not mind going to trial against you alone, but would rather not waste his or her time having to deal with a contentious defense attorney. Representation alone may determine the outcome, especially in tough cases

Using the Public Defender

Some people economically qualify for the services of a public defender. If you have very little or no income and assets, you'll probably be able to get the P.D. to represent you. If, on the other hand, you earn average or better wages, you'll have to hire your own lawyer.

Most states provide public defenders for eligible people accused of DUI. Public defenders often have a better idea of the likelihood of a plea bargain in a given case than do private defense attorneys because DUI cases are a large part of a public defender's caseload. However, some public defenders have credibility with the prosecutor's office (meaning they are willing to take cases to trial and are good at their job) while others have little credibility. The greater the credibility, the greater the chance of a good plea bargain. Unless you have some idea of the public defender's credibility with the prosecutor, you may not benefit much from having him or her represent you as opposed to representing yourself—at least in terms of obtaining a reduction in the charge.

Also, in many areas of the country public defenders are overwhelmed with a large case load and they are not inclined to bring cases to trial unless they see a clear path to an acquittal or they are new attorneys who want trial experience. Public defenders with large caseloads often find themselves in weekly or monthly mass plea-bargaining sessions with their prosecutor counterparts in which a hundred or more cases at a time are resolved. In these sessions, your case may be low priority for a settlement (in light of the other cases the public defender is trying to settle). As a result, the public defender will signal to you that you should plead guilty to the DUI charge and get it over with. If this happens to you, you can always opt to have the public defender removed and represent yourself with an eye to doing your own plea bargaining (at the very least).

Sentence Bargaining

In addition to plea bargaining (where the charge is reduced to a lesser one, like from DUI to reckless driving), most parts of the country also have sentence bargaining. Sentence bargaining is extremely useful where a guilty plea might result in a long period of incarceration. For example, you may be willing to plead guilty to a second DUI but only if you know what your sentence will be. The same is true with an aggravated DUI cases where your BAC is over .15, or injury or death has resulted. In these types of cases you probably wouldn't want to plead guilty unless you knew what sentence you're going to get, and you would be well advised to have an attorney (as is generally true with all non-routine DUI cases).

Fortunately, in most first non-injury first offense DUIs, judges hand down a routine sentence that seldom varies from one case to another. This is because there are so many of these cases that the judge doesn't have time to do individual case analyses. The main variable that does exist is whether driving under the influence of drugs is the charge. In that case, the judge may require drug rehabilitation treatment and random testing as a condition of probation. If you are in a state or court where the judges hand down variable DUI sentences in your type of case, you would do well to use an attorney. But assuming there are no facts indicating the likelihood of a customized sentence, if you plan to plead guilty to DUI or a lesser charge, it may not be cost-effective—or even very helpful—to hire an attorney to represent you at you sentencing because your sentence will be the same whether or not you have an attorney.

If You Aren't Sure, Hire an Attorney

If you are leaning toward pleading guilty but you are in the uncertainty zone, either sign up for the public defender (if you are eligible) or hire an attorney to represent you from this point to the next hearing where you will plead guilty to something, either DUI or a reduced charge of wet or dry reckless driving. While this may still be pricey ($1,000 or more), you'll get a lot of bang for the buck unless the attorney doesn't come through with a reduction in charge. Still, if the attorney tells you that reductions in charge are common in cases such as yours (although you'll never ever hear a guarantee from an honest criminal defense lawyer), and there is nothing in your record or the police reports to stir the prosecutor's ire, the risk of wasting your money (by paying the attorney but not getting a charge reduction) may well be worth it. For instance, if you spend $1,000 on a lawyer to get a charge reduction and you avoid having to pay for DUI school, you'll probably break even on that issue alone. And if you escape a driver's license suspension, the charge reduction may be priceless.

You Need an Attorney to Go to Trial

Although you are entitled to represent yourself in a DUI trial, we don't recommend it. The learning curve for trial practice is steep and usually only comes with considerable experience. We highlight a few of the procedures and issues common to DUI trials in the DUI Trial, and it should be obvious that making these come out in your favor would be problematic without a lawyer's skills and experience.

How to Find a DUI Attorney

First, ask people you trust. If you can use word of mouth to find an experienced DUI attorney with a decent track record (nobody wins them all), he or she might be your best choice. Next, try searching for a DUI lawyer in your location using the Nolo Lawyer Directory, at http://www.nolo.com/lawyers/dui-and-dwi. Last but not least, check the listing of DUI attorneys offered by the National College of DUI Defense (NCDD) at www.ncdd.com. By virtue of their membership in this organization, one of these attorneys will likely be a good choice.

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