Then comes the arrest portion of the festivities. If you’ve gotten this far, yes, the government-issued stainless-steel bracelets are coming. Hopefully you’ve fully digested what I’ve been feeding you up to this point and have kept your mouth shut. Because if the police have fully established what they consider probable cause—and refusal of any test tends to provide that—then you are about to go for a nice little swim in the drunk tank.
Now? You are definitely going to need an attorney. The Internet will be your friend here, though many attorneys who specialize in DUI cases are canny enough to put their smiling faces on signs and billboards about town where potential clients might catch sight of them from their backseat tour of the metropolitan district.
A lawyer whose bread and butter is DUI or one who at least is drunk-driving friendly will be able to negotiate the nasty maze of paperwork and procedures. He or she will hopefully be a familiar face at the courthouse, which believe me, can really help sometimes—don’t discount your attorney’s ability to charm other officers of the court. An attorney who is savvy with DUIs will also know their way around a plea bargain. If you go to court with a DUI charge, especially if it’s not your first, you really need that know-how.
If you end up in an attorney’s office, a chat will commence. I’ll try to give you a feeling for what that will be like without scaring the whiskey piss out of you.
• First thing’s first: a little homework. A good number of lawyers endorse this practice: write it down. Become an impassioned, detail-oriented memoirist of your DUI. A Heartbreaking Work of a Staggering Inebriant, In Cold Booze, you get the idea. This will be painful; it just will. But it’s necessary. And be honest. Chapter one: where were you and what were you doing before you got behind the wheel? Chapter two: how long were you driving, what were you listening to, what Foghat song were you jamming to when you first noticed the disco blue? Were you listening to “Slow Ride” while slowly weaving across the centerline? Map it out in words and know it cold. Name anyone in the car with you. Give your version of the pleasant conversation I’m sure you had with the officer.
A defendant in this situation needs to be as clear as possible about their perspective because the prosecution has a hooked trident poised to stick in your booze-bloated side now that they’ve caught you in their net. The prongs are:
• Whatever the cops observed about how you were driving when they put on the lights.
• Your demeanor and all that stuff about leaky eyes and floppy fish hands with the wallet.
• The results of the tests you took, if you did end up taking them.
• Second, a caution: don’t conclude you are done, even if you set that breathalyzer on fire with your flaming rum toddy breath. Just because someone blows a certain blood alcohol percentage doesn’t necessarily mean they’re roasted. Attorneys can question every minute detail. They can bring up the reliability of the breathalyzer machine, for example. Some of those things can have a near 50 percent margin of error! DUIs are not automatic slam dunks for the state every time, no matter how much they believe they are.
• Every state handles DUI penalties a little differently. You might be fined. License suspended. Or if the system is in compassionate mode and deems you salvageable from the dominance of old demon rum—and you have a decent attorney, good luck, or both—a treatment program. The consequences will depend on the circumstances. Was it your first time? Just how shit-faced were you? Did you lower your window and promptly ralph half a bowl of cheesy-bacon waffle fries on the officer’s shoes, you know, casually? Were you a loud, defensive asshole prior to arrest? All that will factor in.
• Get in touch with your friendly local DMV or RMV. They’re the same, different states just have different names, and procedures. Here in New Mexico, it’s the “MDV,” which sounds about 50 percent less funny in punch lines. If it is vital that you be able to drive while awaiting trial, you can go to the MDV, hat in hand, and very meekly ask for an administrative hearing. A lawyer can help you here, let you know what options to seek. Sometimes people waiting for the DUI hammer to drop can get specially restricted licenses that let them drive to work and back. Do not pass go, do pass every single bar and liquor store you see.
• Whatever you do, don’t talk about your arrest with anyone. I know! After a while, it feels like all we lawyers do is tell you to shut up. It’s like we want all the words to ourselves. In these situations, we do, because we know the right words to say. Shutting the hell up about a DUI is just practical, too. It can affect the way coworkers and bosses discuss you at the water cooler. DUI family theater is even less fun. And anyone you blab to about that night can be called to testify against you in a court of law. Just getting slapped with a DUI charge has you boned enough—don’t double down on it by blabbing about it to everyone.
• This should be obvious at this point, but: don’t say a word to anyone in law enforcement without the comforting presence of legal counsel by your side. Not even a restricted license option available? Do not under any circumstances drive anything. Keep your car in the garage. Hands off the old Segway. Don’t even sit on your kid’s Big Wheel. No driving, no how. And, you know, for the love of Pete, don’t drink and drive again.
I think I’ve already touched on many elements that will go into enduring a DUI trial. The prosecution’s focus—loopy driving, red eyes; roadside, blood, or breathalyzer tests—and some of the strategies a DUI attorney could employ in their valiant efforts to keep you out of lockup. Your attorney can pick these things apart, maybe try to find reasonable doubt in something as simple as the time elapsed between the moment you were first stopped and when the officer administered the breath test, or whether your blood was refrigerated properly or not before the scientists threw it in the rusty old gas chromatograph. Even in an unsavory crime like a DUI, you remain innocent until the state proves you were drunk as a skunk.
Can you win? Damn, Sunny Jim, it’s possible. Here’s how:
First, don’t even consider pleading guilty. Nope, not even a little, no. The system owes you your damned day in court for this charge—otherwise, what are we even doing on this big blue ball? Just waiting around for another asteroid to strike?
Next, prepare. Client and attorney both need to become legal Rain Men as far as the case is concerned, with detailed, total knowledge of every minor detail. Line up challenges to every possible element: to the tests, to the lab work involving the blood (if blood was drawn to measure alcohol content), to the officer’s personal record—you get the picture. Those hardworking folks up in the state house—in pretty much every state—have, under pressure from groups lobbying hard to end drunk driving, stacked the deck of legislation against defendants and defense counsel. So you and your counselor have to be better. Faster. Stronger. Members of my tribe who do go ahead and advertise as specialists in DUI law are up-to-date on hopefully every element of the legislation. We know many cases are more winnable than they seem. It’s just good old-fashioned professionalism. You should expect that from the guy who fixes your car, from your favorite erotic dancer, and most definitely from your attorney.
Often a good idea: have your history and head discussed with and checked by a substance-abuse counselor. This can reduce the danger of looking like a potential three-peater—or five-peater—to the prosecutor. It’s a way to say, “Hey, I know, I might have a wee little problem here.” In addition to that assessment, round up medical records. If you’ve ever had any one of a number of medical challenges, they can have a profound effect on how you responded at the time you were stopped. What if you have a mild learning disability and the officer’s instructions during the sobriety tests were hard to follow? How fair is that, to get a DUI for the same reason you once failed PE class? Sure, mean old Coach Thunderthighs from junior high might say “Very fair,” but Coach would be wrong.