3rd Offense (felony) DUI - Part 3 - The role of the Evidence

Everything about your DUI case depends upon the evidence, so every last bit of it should be inspected carefully. For everything that can be said on this subject, the bottom line is that, generally speaking, no evidence equals no case, questionable evidence equals a questionable case, and strong evidence equals a strong case.

As DUI lawyers, our first job is to get, and then carefully examine the evidence.

In my office it is standard practice to request the police car dash-cam video as soon as we’re retained on a case. I can’t count the number of cases we’ve won and charges we’ve had reduced based upon things we’ve spotted just by taking the time to closely watch the traffic stop, investigation and arrest. 

In order to fully understand the entirety of any DUI case, the lawyer must really question the traffic stop, the field sobriety tests (FST), the chemical (breath or blood) tests, the scientific analysis of what was obtained from those tests, along with countless other things that make up the evidence. 

This is easy for an attorney to say, and most of them talk a good game, but it really is important that it goes beyond talk, and that nothing about a case gets taken for granted. Specifically, this includes all the mundane stuff, meaning that a “careful” examination of the evidence means combing over everything like the client is your sibling, or spouse. 

My team and I never take anything for granted. Instead, we rigorously examine every relevant detail of a case. What’s more, we use a “team” approach, meaning that we discuss things as a group. For example, it is typical for each dash-cam video to be watched by at least 3 people. No matter how smart any one person may be, there is much truth in the idea that “2 heads are better than 1." 3 sets of eyes are even better than 2. When it comes to scrutinizing the evidence, more eyes are better than less.  

The harsh reality is that if you’re facing a 3rd offense DUI, you’ve had at least 2 prior cases that did not get tossed out by a Judge. Your defense plan in this case needs to be a lot better than just hoping you get lucky and the whole case somehow collapses. Good outcomes are almost always the result of good work, not good luck.  

Every lawyer will, of course, “look” at the evidence (or at least they should).  However - and this is only human nature - after doing anything for a long time, things can begin to blend together, and what often winds up happening is that people let their guard down, and evidence is reviewed to see if anything simply “jumps out.”  

That’s not good enough.  

This is why it’s better to have more than 1 person look over everything, and then brainstorm over a case in a group setting.    

The key to properly examining evidence is to begin with a mindset that there is something wrong with it, and that, like the key to solving a puzzle, the task is to find it. In other words, a lawyer should never start with the idea that there may or may not be something faulty about the case. Instead, he or she should assume that there is, even if it’s buried deep within the details, and then set out to find it.

Of course, merely thinking that way doesn’t make something show up that isn’t there, anymore than believing in Santa Claus makes him real.   

However, even the smallest of things can make a large difference.  Still, if that one small thing isn’t obvious, it won’t be found unless the lawyer is on a mission to dig and find it.  Thus, the lawyer has to be determined to find it from the outset.

There is a flip side to all of this, as well.  Most DUI cases are NOT built on faulty evidence, so a lawyer needs to be able to explain the realities of that to his or her client.  This means that in cases where the evidence is solid, running head-first into court to challenge it just for the sake of challenging it is not only a waste of money, but the waste of an opportunity to negotiate or otherwise work out a better result. 

Whatever else, the evidence is made up of facts, and as much as we may want them to line up one way or another, they are what they are.  Unfortunately, who you are as a person is not part of the evidence, although, in the big picture, it does matter a lot.  This was best put by John Adams, the 2nd U.S. President, when, as a lawyer, he successfully defended British soldiers accused of the Boston Massacre: 

“Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.”

In other words, it is what it is, no matter how much we may hope things are different.

Still, a person should never be sold out in a case based on faulty evidence, but neither should he or she get roped into paying for challenges to it that won’t fly, either.  The best thing you can do is make sure the law firm you hire will put everything under the microscope, examine it carefully, and then know what to do with it.
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