Why I defend DUI's

I often get asked the question – how can you defend drunk drivers? The question mark is often turned into an exclamation point when the person posing the question is in law enforcement. For an answer to this question, lets look at some common misconceptions about the DUI charge.

Most people wrongly believe that the punishment for a DUI is relatively minor. Heck, its barely  more than a speeding ticket right? Wrong.  Let take a person charged with say assault. That would most likely be a first time offender who, up until the assault, had led a jail-free lifestyle. The person charged with assault would most likely not receive any jail time and be placed on some type of unsupervised probation. He might also have to pay a small fine. But in the end that person could probably return to court after he completed his probationary time and ask that his arrest record be expunged.  A few hundred dollars, inconvenience, and attorneys fees and that’s about it.  In fact, statistics show that most defendants convicted of felony’s serve no jail time!

Now lets look at a first time DUI offender.  Even though this person had led a sterling lifestyle up till being arrested this person will face a mandatory 48 hour jail sentence. His conviction will automatically be a 100% sentence of 11months and 29 days to be served on supervised probation after he or she completes the required 48 hours in jail. His license would be suspended for an entire year. He would most likely have to attend a DUI school and be required to pay a mandatory fine.  His conviction can never be expunged from his record.

Oh but there’s more!  His auto insurance premiums will sky rocket as he is now in a “high-risk” category. Since he could and most likely is suffering from alcoholism he is prosecuted and punished for having a recognized medical condition.  Did you know that if you have a DUI conviction you are prohibited from entering Canada?? See the Immigration and Refugee Protection Act under Canadian law.

Another misconception about DUI is that the DUI defendant gets a “fair shake” from the justice system just like every other defendant. This is simply not the case.  Lets say someone accuses you of trying to extort them and they have a recording of an alleged phone call. At trial the prosecution uses a voice analysis machine and that machine says its your voice. The Judge then tells the jury that they must  convict you unless you prove your innocence!  That hardly sounds right in our American system of justice does it?? But when a Breathalizer machine in a DUI case shows results over the legal limit the judge tells the jury that the defendant is presumed to be under the influence!  In a DUI trial this type of instruction from the judge is not only legal, its required. 

What about intent? In all the great TV dramas everyone is asking if the defendant had the intent to commit the crime. Under DUI laws there doesn’t have to be any intent.  The defendant didn’t have to intend to become intoxicated nor did he have to have the intent to drive. 

What is also meant by “under the influence”? Its not illegal to drink and drive (yet) but only to drive while “under the influence”.  How is this mental state determined? Its medically impossible to go inside the brain and directly observe what is influencing it.  Evidence of being “under the influence” can only come from circumstantial evidence, indirect measurements, and opinions.  At this point in the conversation most will respond – that’s why we have the .08 presumption of intoxication! Yes, but how is a person to know what his blood alcohol level actually is? It is impossible to know with any degree of certainty what a blood alcohol level actually is at a given time. The difference between legal and illegal is a hairline. Imagine sitting on a 3 lane highway. The guy to your left is .07 – perfectly legal. The guy on the right is .08 – drunk.  You honestly believe you could tell the difference in the way each of those vehicle was being operated?