Frequently asked questions

Yes. I am happy to offer prospective new clients who are out of custody a free initial consultation.

I am generally willing to meet with the family or friends of the in-custody prospective client to evaluate the client’s particular situation. In some cases, I am also willing to do a jail visit, if necessary, to further evaluate the case.

Although every case is unique to the individual client, it is very rare after more than 35 years in the practice of law for me not to have encountered similar fact patterns and cases on many prior occasions.

Most of my clients are either working or going to school, and the outcome of the case frequently affects their current and future employment. To the extent possible, I will incorporate the client’s unique employment or educational situation into a case plan that addresses these concerns.

In every criminal case charged as a felony or misdemeanor, there is the theoretical possibility of a jail or prison sentence. That said, most non-violent first offenses can be resolved without actual incarceration, through various forms of alternative sentencing, including but not limited to:

• Home detention
• Electronic monitoring
• Sheriff’s Work Project or work furlough
• Community service

The legal fees in your case will be discussed with you at the end of your initial consultation. You will not be charged for that consultation. Fees are normally quoted on a flat-fee basis and vary depending on the seriousness and complexity of the case.

The consequences of a DUI vary a great deal, depending on many factors, including but not limited to:

• Whether you have prior DUI convictions within the past ten years
• Your BAC (blood alcohol concentration) at the time of the alleged driving
• Whether there was an accident
• Whether anyone was injured
• The seriousness of any injury

Blood alcohol content (BAC) is a measurement of the amount of alcohol found in the blood, expressed as a percentage. It is calculated in grams per 210 liters of breath, and a BAC of 0.08 means there is 0.08% alcohol by volume. Measuring BAC is a way for law enforcement to calculate the amount of alcohol someone has had and their ability to drive a motor vehicle.

If you are pulled over on suspicion of drunk driving, or pulled over for a traffic stop and the officer then suspects intoxicated driving, remember that you have certain rights:

• The driver and any passengers have the right to remain silent (except that you must show the police your driver’s license, registration and proof of insurance on request).
• If you are a passenger, you are free to leave.

If you are arrested or detained, you have additional rights, including Miranda warnings:

• You can say you wish to remain silent and ask for a lawyer immediately.
• You have the right to make a local phone call.

If you believe your rights were violated in any way, write down everything you remember, including the officer’s agency (state police, county police and so on), badge number and patrol car number.

You can refuse a breathalyzer test. These are portable instruments police carry to test your breath for alcohol. The results of these tests are typically not admissible if you are in fact arrested and charged with an intoxicated driving offense.

Refusal, however, carries significant consequences. They depend on your jurisdiction, but you can expect any of the following:

• Your license may be suspended.
• You may be sentenced to jail time.
• You may still face a DUI charge based on other criteria, such as field sobriety test results, witness testimony and the officer’s observations.
• You may be fined.

If you refuse, the officer may also request a warrant to take a blood sample. Blood tests are more reliable than breath tests and can be more challenging to defend against if a case is filed against you.

Standardized field sobriety tests are tests approved by the National Highway Traffic Safety Administration (NHTSA). They are allegedly designed to help police determine whether a driver is intoxicated. There are three standardized FSTs:

• The Horizontal Gaze Nystagmus (HGN) test
• The One-Leg Stand (OLS) test
• The Walk-and-Turn test

The results of these tests may be used as evidence against you. Non-standardized tests are not validated by NHTSA and are typically not admissible as evidence. They include the finger-to-nose test, finger count test, hand pat test, alphabet test, reverse counting test and coin pickup test.

Refusing a field sobriety test is allowed in most jurisdictions, although there may be consequences, such as being asked to complete a breathalyzer test or provide a blood sample. Refusing a field sobriety test typically does not carry the same serious repercussions as refusing a breathalyzer test.

There are two different types of suspension. The first is an administrative suspension: many jurisdictions will suspend your license if you refuse a breathalyzer or have a BAC over a certain level. This means you can lose your driving privileges even when you have not been found guilty.

The other type of suspension occurs when you are convicted of an intoxicated driving offense. Whether your license is suspended or revoked depends on your jurisdiction, your BAC level and whether this is your first offense.

Remember: you, or an attorney acting for you, must contact the DMV within 10 days of the arrest to request a hearing.

What happens next depends on the facts and circumstances. A DUI arrest starts two processes: (1) the administrative hearing, which can result in civil penalties such as a license suspension; and (2) the criminal process, which can result in a conviction in the absence of a strong DUI defense. A conviction can lead to fines, license suspension or revocation, imprisonment, installation of an ignition interlock device (IID) and other penalties.

Your ability to obtain or keep auto insurance after a drunk driving conviction depends on whether it was your first conviction. You will likely find insurance after a first conviction, although your rates will increase significantly.

Even with only one drunk driving conviction, you may still be required to obtain SR-22 insurance. An SR-22 is a certificate of financial responsibility required by your jurisdiction or by court order. It is not insurance, but proof that your auto policy meets the minimum liability coverage required by state law. A fee, ranging from $300 to $800 on average, is usually charged to file it.

It is possible to beat a drunk driving charge, although it is not typically easy. It requires a thorough understanding of the law and of the technical nature of field sobriety tests, breath tests, blood tests and urine tests. Understanding these tests is critical to identifying technical or human errors that show the results are unreliable.

Aside from errors or unreliable test results, a person accused of DUI may have had their constitutional rights violated. This happens more often than you might imagine. A violation can make some or all of the evidence inadmissible. Without sufficient evidence, the case will be dismissed, or a jury may return an acquittal.

These cases can be as highly technical as they are legally complex, and you will need a drunk driving defense attorney to help you beat the charge.

An arraignment is a hearing where the defendant can plead guilty, no contest or not guilty. You can plead guilty, but the real question is whether you should. It would be a mistake to plead guilty at this stage, especially without the advice of a drunk driving lawyer, for several reasons:

• If you plead guilty immediately, you lose any opportunity to fight the DUI charge.
• You also lose any opportunity for a plea deal, if that would be best in your circumstances. A plea deal still means pleading guilty, but the process can produce a better outcome than an immediate guilty plea. In some jurisdictions, you may be able to plead down to a lesser offense.
• Sentencing is often harsher after a guilty plea at arraignment than under a negotiated plea deal or a sentence after conviction, because you have had no time to mitigate and negotiate.

If it is your first drunk driving charge, it can be tempting to plead guilty right away to get the case over with. But if you don’t fight the charge, it will go on your record as a first offense, and any later DUI conviction will bring harsher penalties.

If you plan to fight your drunk driving charges, it is in your best interest to have an attorney represent you. The law can be complex. The evidence can be highly technical and scientific. Police and state expert testimony can be damaging. All of these can lead to a conviction unless you have the skills and knowledge to counter them, which most people accused of DUI do not.

Many factors affect the cost of a defense lawyer, including:

• The experience of the lawyer
• Whether you take a plea deal
• Whether you go to trial
• The cost of experts if you go to trial

It also depends on whether the attorney charges by the hour or a flat rate. You can expect to pay anywhere from $1,000 to $5,000 or more if the case is appealed. More experienced lawyers cost more, but they can save you more in the long run in auto insurance and lost wages.

Eric normally quotes fees on a flat-fee basis, discussed at the end of your free initial consultation.