Drunk Driving Defense and Malpractice

Representing a person accused of driving under the influence (DUI) in the State of Arizona requires a high degree of skill, knowledge and experience in criminal law in general and DUI defense in particular. DUI charges are fast becoming the number one criminal charge filed against people arrested in the State of Arizona. Even for a first DUI offense, the penalties are so substantial, one could argue that an attorney who does not have the skill, knowledge or experience in this field would be committing malpractice by choosing to represent someone charged with driving under the influence.

Volumes of legal treatises and scores of seminars have been devoted exclusively to representing persons charged with driving under the influence. A cursory review of the voluminous materials in this field as well as the experience of this author leads one to the compelling conclusion that most driving under the influence cases can be "successfully defended". Successfully defended is defined as a dismissal, acquittal and/or a reduction of DUI charges.

With every DUI arrest there are two individual cases. The first is the criminal case, and the second is the Department of Motor Vehicle Administrative Per Se suspension/revocation. The criminal charges are governed by criminal law. The DMV administration per se suspension/revocation are governed by administrative and civil law.

With respect to the criminal charges, there are serious constitutional implications that are present in every DUI case. A DUI defense attorney must have in his or her command the most current law in the areas of fourth, fifth and sixth amendments to the U.S. Constitution as well as the rules of evidence and criminal trial procedure. Furthermore, new cases are being decided every day from the U.S. Supreme Court all the way down to State Appellate Courts throughout the country. The Arizona Supreme Court and the Appellate Courts in this State are routinely deciding issues that are placed before it in the field of driving under the influence.

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Mastering the vast body of law that permeates this field is still not enough to be competent to defend a person accused of driving under the influence.Being experienced in trying criminal jury trials in general and DUI jury trials in particular is a must for any attorney to be minimally qualified and competent to represent a client accused of DUI. A good DUI defense attorney knows how to neutralize the arresting officer's testimony as well as attack the testimony of the state's experts in connection with blood, breath or urine testing.

Since Arizona allows the cop a choice of a blood, breath or urine test for a suspect arrested for driving under the influence, every DUI defense attorney must have sufficient scientific knowledge in order to effectively cross-examine the state's expert, as well as present defense expert testimony. Chemistry, absorption, peak and elimination of alcohol, mouth alcohol, interfering substances and other scientific issues are extremely critical in representing a person accused of driving under the influence.

Knowledge of the various blood, breath and urine testing methods and their scientific principles is also required for the competent DUI defense attorney. Each chemical testing device has its own unique strengths and weaknesses. It is those weaknesses that must be explored in front of a jury in order to provide a DUI client with effective assistance of counsel. Oftentimes, the state's chemical testing machines are neither calibrated nor operated properly. In addition, unique individual characteristics of a DUI defendant could make any chemical test result scientifically unreliable in a prosecution for driving under the influence.

Title 17 of the Code of Regulations of the Health and Safety Code of the State of Arizona governs blood, breath and urine testing in the State of Arizona. A competent DUI defense attorney must have Title 17 mastered. Any deviation from Title 17 in connection with blood, breath or urine testing could result in scientifically unreliable chemical test results. Title 17 is complicated and requires scientific understanding as to chemical testing. Title 17 is applicable in every case where there is a blood, breath or urine test.

I have heard it expressed over and over again by knowledgeable attorneys, prosecutors and judges that driving under the influence cases are more complicated than homicide cases. There are police officers, experts and civilian witnesses in almost every DUI case. Knowing how to effectively examine these types of witnesses requires a great degree of skill, knowledge and experience.

With respect to the Administrative Per Se suspension/revocation, the DUI defense attorney must have a clear understanding as to Rules of Evidence and Procedure with respect to Administrative and Civil Law. The DMV Hearing Officers act as both the Prosecutor and Judge during the Administrative Per Se proceeding. Knowing the Rules of Evidence in raising the proper and timely objections is also necessary to be a competent DUI defense attorney.

Should the Administrative Per Se Hearing not be successful, the DUI defense attorney must take the appropriate steps to perfect and request administrative review. Many times it is during this administrative review process that the DUI defense attorney is successfully able to have the DMV suspension/revocation set aside.

In addition to the administrative review remedy, a DUI defense attorney must know how to proceed by way of writ against the DMV in the local Superior Court. DMV writs are extremely complicated and expensive. Knowing how to properly perfect and file the writ as well as brief and argue the same is essential for a competent DUI attorney.

Arizona State Bar Rule 3-110 sets forth the minimum standards for attorney competency which is applicable to every attorney who represents a DUI client.

Rule 3-110, Failing to Act Competently

(A) A member shall not intentionally, or with reckless disregard, or repeatedly fail to perform legal services competently.

(B) To perform legal services competently means diligently to apply the learning and skill necessary to perform the member's duties arising from employment or representation. If the member does not have sufficient learning and skills when the employment or representation is undertaken, or during the course of the employment or representation, the member may nonetheless perform such duties competently by associating or, where appropriate, professionally consulting another member reasonably believed to be competent, or by acquiring sufficient learning and skill before performance is required, if the member has sufficient time, resources, and ability to do so.

(C) As used in this rule, the term "ability" means a quality or state of having sufficient learning and skill and being mentally, emotionally, and physically able to perform legal services.

In this author's opinion, a competent and ethical DUI defense attorney must possess a high degree of skill in order to competently represent a client charged with driving under the influence. Unfortunately, many attorneys who represent a person accused of driving under the influence do not possess the skill, knowledge or experience to competently and effectively represent a person accused of DUI. It is incumbent upon any attorney who is considering representing a person accused of driving under the influence to assess his or her own ability to competently and ethically represent the DUI client. If the attorney feels that he or she does not have the required skill, knowledge or experience to take on a DUI client, that attorney must either associate or consult with a competent DUI defense attorney or refer the client to an attorney who has developed the requisite skill, knowledge and experience. Anything less should be considered malpractice and unethical.