Misdemeanor defendants are most likely to appear without counsel – they often think that they may get a fine, then they can go home.

As an attorney, it is certainly easy for me to say “never appear in a criminal court without a lawyer.”  I fully understand that most people do not have ready access to the $1,000 to $2,000 that many defense attorneys charge to negotiate a deal.

On the other hand, if you decide to take your chances and appear without a lawyer, do your research and understand what you will be facing.  Remember, you are entering a different world and the prosecutor’s goal is not “justice” but it is to clear out his docket as quickly and efficiently as possible.  It is your problem if you accept his recommendation without negotiation.

Realize as well that the prosecutor, judge and court personnel are not under any obligation to explain the court processes to you or give you time to think about what you want to do.  Judges are very busy people and your case, while important to you, is only one of hundreds or thousands they have to handle.

When a potential client asks me whether it makes sense to hire a lawyer, I explain that my job is mainly to eliminate the uncertainty factor.  I have been in court before and I know how the process works.  I have perspective about what constitutes a “reasonable” plea bargain and when the prosecutor’s case is weak enough to take our chances in court.

Take a look at this blog post entitled Bargaining for Freedom, A Day in Criminal Court.  The author, a lawyer who does not handle criminal matters, describes the experiences of a friend who appeared in court without a lawyer.  While this article describes a day in a Los Angeles criminal court, the experience he describes is fairly universal and could have happened in any busy Atlanta area court as well.

Persons accused of driving under the influence garner little sympathy, especially those with multiple offenses.   How can any lawyer want to get a repeat offender off on a technicality?

Here is how I respond:

First, the goal of any reputable criminal defense lawyer is to investigate to determine whether the state (in the form of the police officers and the prosecutors) have done their job according to the law.  In the American system, criminal prosecutions are adversarial in nature, meaning that the state’s attorneys (the prosecutor) and the defense attorney are on opposite sides.

Our founding fathers recognized that representatives of the state have significant resources and built in authority when appearing before juries.  Such power can be abused if not held in check.   Unfettered police power can turn a free society into an authoritarian one.   History has shown that when agents of the state can enter people’s homes at will, detain them indefinitely, and incarcerate without critically analyzed evidence, personal freedom disappears.  We can both support the hard work and bravery of policemen and women while at the same time demanding that these officers take care to collect and store evidence properly, advise the accused of certain constitutional rights and engage in a certain baseline of appropriate conduct.

How does all this apply to a DUI case?  Take a look at this informative article about blood alcohol testing kits in Georgia from respected Newnan, Georgia DUI defense attorney Alan Trapp.   Alan discusses the blood collection kits used by state and county police forces in Georgia and the potential for false results because of stale preservative or a defective seal.  Now imagine that you consumed one beer at dinner and were randomly stopped at a DUI checkpoint.  Further assume that the DUI kit used by the local police officer was contaminated with a yeast called Candida albicans that began to ferment when blood was added.  Further assume that there was insufficient preservative in the test kit.  A properly calibrated kit might have shown your blood alcohol content at .03, well below the legal limit, but the contaminated kit yielded a result of .09.

In this scenario, a DUI conviction would wrongfully land you in jail for two or more days, a fine of up to $1,000, a possible loss of your full driving privileges for up to a year, 40 hours of community service, probable loss of insurance coverage, and dramatically increased insurance renewal rates.

In truth, because of the contamination neither you, the arresting officer or the prosecutor would really know exactly what your blood alcohol level was at the time of arrest.   That uncertainty is called “reasonable doubt.”

Now imagine that you retained a smart lawyer like Alan who was able to obtain physical evidence and testimony from the arresting officer that convinced a judge or jury that the blood alcohol test kit was contaminated, thereby resulting in an acquittal.

Now this does not mean that every DUI arrest can be successfully challenged, and conversely there may be some guilty drivers who get off because of bad evidence.  If the stakes are your personal liberty and a huge financial burden, don’t you want the state to have to prove its case beyond a reasonable doubt.  Don’t you want a procedure in place where you can argue against your guilt to an impartial finder of fact?

So, the next time a friend or relative opines that criminal defense attorneys are no better than the defendants they represent, think about how you would feel if you found yourself in the wrong place at the wrong time and your lifestyle was at risk.

The state of Georgia has enacted strict penalties for those individuals arrested of DUI. While criminal laws are designed to serve as a deterrent factor, there will be some individuals who are willing to gamble against the odds of being charged and later convicted. For those individuals who are first-time DUI offenders, the below serves as an outline of punishments and/or consequences to be expected. Noted below are the possible sentences and/or fines for first-time DUI offenders. These punishments do not take into consideration any aggravating factors such as a prior conviction, destruction of personal property other than their own, and loss of life.

Consequences for first-time DUI offenders with no aggravating circumstances

• Suspension of driver’s license for a period of one year.
• Minimum jail sentence of one day. Normal length of incarceration is ten days to one year. If sentence is less than 12 months, the defendant will be sentenced to serve probation for a period of 12 months.
• 40 hours of community service for those individuals 21 years of age and older. Defendants below the age of 21 will be required to complete 20 hours of community service.
• Monetary fines between $300.00 to $1,000.00
• Defendant will be required to pay all court ordered costs to include filing fees and court appointed attorney fees.
• Defendant will be required to complete a certified DUI course at the expense of the Defendant.
• Completion of a Risk Reduction Program
• A lifetime record of a DUI conviction.

A DUI charge of any magnitude is an important matter and should be taken seriously. Any individual charged with driving under the influence should immediately seek the advice of an attorney specializing in criminal law.

Davis’ current (and possibly final) appeal rests in the United States Supreme Court.  On June 29, 2009, however, the Supreme Court concluded its 2008-2009 session without making any decision on Mr. Davis’ petition for habeas corpus.   A petition for habeas corpus is a demand for extraordinary relief and is used in a criminal matter when a defendant contends that he has been denied due process by lower courts.

At this point, Mr. Davis is asking the Supreme Court to set into motion a process whereby he would end up with a new trial on the evidence.  He contends, among other issues, that since the original trial the eyewitnesses to testified against him in the original trial have recanted, and that other witnesses, previously unknown, were now available to testify.

In addition the Georgia Resource Center, which provided legal help for Mr. Davis (as well as for other indigent defendants) found its budget and staff cut, thereby reducing its effectiveness in presenting Mr. Davis’ case.

Davis’ plight has also garnered the attention of activists and celebrities throughout the world who are voicing support for a new trial.

It appears to me that at this point, Mr. Davis’ biggest  hurdle may be procedural.  One one hand, there seems to be a visceral reaction in the minds of even casual observers that when a man’s life is at stake, a court system should not put form over substance by denying a defendant his day in court on the basis of procedure.

On the other hand, prosecutors and many others argue that there must be rules regarding the finality of trials and appeals.  Civil and criminal courts are all subject to rules of evidence.  At some point both prosecutors and defense lawyers must present their best cases, recognizing that there is always new evidence or arguments not made.

My guess here is that the Supreme Court will decide that Mr. Davis should be given another opportunity to present evidence to disprove the State’s allegations of guilt.   This case has become something more than a murder trial – instead it has become a symbol of American criminal jurisprudence, and I think that the Supreme Court justices will incorporate this factor into their ruling this coming fall.

If a new trial does happen it will be interesting to see how a new jury evaluates the witnesses and their changing stories.   Given the political dimension of how this case has evolved, we will probably never know exactly what happened that early morning in Savannah, Georgia in 1989.

You can refuse any and all breath, blood or urine tests but by refusing a number of bad things happen.  First, your driver’s license will be suspended for one year.   Secondly the fact of your refusal may be used by the State prosecutor as evidence of your guilt.

The DUIattorney.com web site has published the text of the “implied consent warning” that an arresting law enforcement officer in Georgia must read to all DUI suspects.  There are different warnings for suspects under the age of 21, other adults and holders of commercial drivers’ licenses.

Here is the text of the warning issued to adult drivers over the age of 21:

Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?

You will note that the implied consent warning permits you to obtain and pay for your own test in addition to the test mandated by the State.   Not infrequently the results of the two tests can differ which may give us some leverage when it comes to preparing your case for trial or a plea.

Because there is a time element involved in obtaining your own test it is wise to contact a DUI lawyer in or near the county where you are arrested as soon as posssible.

Recently, Mr. Davis’ attorneys filed an appeal to both the Georgia Supreme Court as well as the United States Supreme Court arguing that the conviction should be overturned because several of the eyewitnesses have “recanted” their testimony.  The attorneys argue that to execute a defendant with a “strong claim of innocence” would be a violation of the Bill of Rights prohibition against “cruel and unusual” punishment.

My colleague, blogger Paul Kennedy of Houston, weighs in on this controversy with a blog post entitled “Its not Cruel and Unusual to Execute an Innocent Man.”  Paul argues:

that just because a citizen was given a fair trial doesn’t mean that the verdict is correct?  When it comes to deciding whether or not a fellow citizen’s life is to be taken away by the state, the very least we can do is make certain that the state is killing the right person.

On the other hand, Atlanta Journal-Constitution editorial writer Jim Wooten says this:

Before you buy-in to the Troy Anthony Davis PR campaign, go to the source. Read for yourself the Georgia Supreme Court decision handed down March 17 that dealt with quality of the alleged recantations in the murder of Savannah police officer Mark Allen MacPhail. Cut out the spin. Read Justice Harold Melton’s majority opinion.

There have been many studies which demonstrate that eyewitness testimony can sometimes be seriously flawed.  Often our memories of what we genuinely believed that we saw are simply incorrect.  On the other hand, eyewitness testimony has long been accepted by our courts as an acceptable basis for finding criminal liability.

Like many of my fellow bloggers, I am concerned with the prospect of putting an innocent man to death.  On the other hand, I think that the family of the slain Savannah police officer does deserve justice.

I encourage you to take a look at the Georgia Supreme Court opinion.  Here are some of the facts that are not in dispute:

In the early morning hours of August 19, 1989, Troy Davis was at a pool hall with his friends Sylvester Coles and Darrell Collins.  Nearby a homeless man named Larry Young was exiting a convenience store with a six pack of beer.  Coles approached Young to ask for a beer but Young refused the request.  Coles then followed Young, cursing and screaming at him.  Davis and Coles circled around a nearby building and together with Coles, surrounded Young.  Davis then pistol whipped Young, severely injuring him.  An off duty police officer, Mark MacPhail observed the altercation and approached Davis and Coles.  Officer MacPhail was subseqently shot and died on the scene.  Davis says that Cole was the triggerm, and Coles points the finger at Davis.

Earlier that night a man named Michael Cooper was shot at a party.  Several eyewitnesses named Troy Davis as the shooter.  Bullets removed from Cooper’s body during treatment matched bullets removed from Officer MacPhail’s body.

During the investigation, several witnesses were interviewed by the police and stated that Davis had confessed the murder of Officer MacPhail.   Larry Young identified Davis as the person who struck him on the head with a pistol.  Darrell Collins, who had run from the immediate area of the Young-Davis/Coles altercation, testified that the person who struck MacPhail also shot him.

Subsequent to the trial that resulted in Davis’ conviction, several of the witnesses noted above changed their stories.

Davis was convicted of murder, not for being a really bad person.  A jury heard the evidence presented, including the witness testimony and concluded that Davis was the murderer.

I encourage you to read the heartfelt opinions of fellow bloggers who sincerely oppose the death penalty and who stand for the principle that the state needs a great deal of certainty before taking a convicted criminal’s life.   You will note that few, if any, of these bloggers report the undisputed factual background of this case.  Does it matter?  Should the Georgia courts ordered a new trial?  Does the recitation of facts shapre your opinion?  What do you think?

Nevertheless, the law does not treat every DUI defendant the same way because some DUI offenders are more culpable than others.  Further, the law requires that the prosecutor prove his case.  It is not enough that the police officer “thought” that an individual was under the influence – there needs to be proof, which can include blood test, breath tests and other types of evidence.

Recently, the Supreme Court agreed to hear the case of Begay v. United States, a decision which was released in April, 2008.  In the Begay case, the defendant (Begay) was arrested in New Mexico for unlawfully possessing a firearm, a violation of federal law.  Mr. Begay was a convicted felon and thus was not permitted to possess a gun.

Following a trial, the federal judge hearing the case sentenced Mr. Begay to 15 years under the Armed Career Criminal Act, which mandates a 15 year sentence to a felon who is convicted of possessing a firearm and who has three or more convictions for “violent felonies.”  The violent felonies relied up on by the judge were Mr. Begay’s 12 DUI convictions.

Clearly, Mr. Begay is not a sympathetic defendant.  However, the law requires three or more convictions for violent felonies.  The Supreme Court held that DUIs are not violent felonies because a DUI is usually not an intentioal act to hurt another person, and because the examples of violent felonies set out in the Armed Career Criminal Act were of a substantially different nature than a DUI.

Does this mean that Mr. Begay is not a dangerous person or that he should not be incarcerated?  No.  It does mean that he should not be convicted of a crime when his conduct does not equal the conduct procsribed in the statute.

The purpose of these recording devices is to record the statements and conversations of people who have been arrested.  Apparently, admissions and statements from these conversations have been used against defendants at trial.

So, the lesson to remember here: if you are arrested, ask to speak to a lawyer and say nothing more.  Assume that anything you say or do in the back seat of the patrol car is being recorded and taped.   If you end up sharing a ride to the police station with another defendant, say nothing to him.  If you end up in a holding cell, do not discuss any of the charges against you.

Our systems of justice provides that the state has to prove its case against you.   Often a particular act can result in a wide range of charges – from a minor charge all the way up to a serious felony charge.  Similarly, prosecutors may ask for a range of punishments in plea deals, and you can be sure that they are not your advocate in this regard.   Your defense attorney’s job is to aggressively defend you and work for an acquittal if you are innocent of the charges, or to argue for the most lenient penalties under the law if you do have culpability.

The minute you get arrested, recognize that you are now in a system that is not so much about justice as it is about bargaining.  Your lawyer is the professional – let him speak for you.  The less you say is always the better.

For example, the Discovering Alcoholic argues that to both require a DUI offender to attend classes and therapy while at the same time taking away his driver’s license may very well result in an embittered, unemployed and depressed person who might be likely to find himself arrested again. Instead, why not use current technology like ignition interlocks and transdermal perspiration monitoring bracelets with GPS monitoring to allow limited driving privileges with appropriate safeguards against drunk driving.

Do you think that the Discovering Alcoholic has a point? Will judges be persuaded by his logic?

On the other hand, your case may be one where the State’s evidence is admissable and we may decide that a judge or jury trial may be risky. In such instances, we may be able to negotiate a favorable plea bargain to keep you out of jail or to other minimize the negative consequences of a DUI conviction.

What factors come into play when we negotiate a DUI plea bargain?  There are no published statistics to answer this but DUI defense lawyers around the country generally find similarities in their experiences. Ohio DUI lawyer Brad Koffel posted a list of the top ten risk factors that hurt his chances at negotiating a plea bargain. Brad’s list is not exhaustive but I agree with him that the more of these factors that apply in your case, the more difficult it will be to negotiate the most favorable terms of a plea bargain.

Here are the factors that attorney Koffel identifies:

1. Car Accidents
2. Blood Tests
3. Breath Tests
4. Urine Tests
5. Video showing an impaired client
6. State patrol hotline calls about our client
7. Client or passenger statements tantamount to confessions of being DUI
8. Rudeness & belligerence towards police officers
9. The county the DUI arrest occurred
10. Prior Convictions for DUI

Rest assured that even if your case seems hopeless, your DUI defense lawyer’s job is to identify each and every weakness of the State’s case and to guide you regarding steps you can take to help your chances. I have found that clients accused of the most serious DUI offenses need representation even more than first time offenders with limited alcohol impairment. I have yet to see a case where even a repeat offender with several of these risk factors does not have some redeeming character attribute that can help his case. I therefore urge you not to just give up if the case against you looks bleak.