Many ask me when do I know when a client should plead and to what? The question is a good one but one that can not be answered easily. A number of factors come into play when advising a client.

The evidence. The first and most obvious factor is the evidence. In a prior post I discussed an attorney’s due diligence responsibility to their client. After performing this task, your attorney should be in a position to tell you the evidence against you, any anomalies in the police departments records, problems with FST’s and failures by the police department in any stage of the arrest and/or tests.

The court’s history. As I’ve said before, some courts have agendas, some have precedents relating to sentencing, and others, and in most cases, thankfully, take each matter on a case by case basis. Your attorney should have such knowledge and be able to advise you accordingly.

Politics. The topic of DUI/OVI is constantly in the news. Every day we are bombarded with news of those being charges with DUI, aggravated vehicular assault or manslaughter as a result of a alcohol or drug related incidents. This morning I even heard a radio ad from a national agency decrying “drunk motorcyclists.” Mothers Against Drunk Driving (MADD) are monitoring courts and petitioning the legislature seeking tougher laws. Judges and juries can not be blind to this. Judges, especially, are looking over their shoulder and being influenced in what has become a political hot potato.

As a result, taking a case to trial requires enormous skill and deference to the factors outlined above. There are many alternatives. The most obvious is to plead guilty (or no contest) to one of the DUI/OVI charges. If a strong issue is found, perhaps a reduced plea or sentence can be negotiated. If the court has a history of denying suppression motions or returning guilty verdicts notwithstanding the evidence, perhaps a no contest plea with a request to stay sentencing pending an appeal is appropriate. These are but a few of the alternatives that may be available.

Whichever, any plea should be forthcoming only after consultation with your attorney after they research the facts thoroughly and take into account those factors outlined above.

When you hire any professional, you have a right to know what they are doing for the fees you are paying. More importantly, you have a right to know that any attorney you hire is doing their “due diligence”- completing sufficient research and investigation to properly advise you. But, as Abraham Lincoln said, “An attorney’s time is his stock and trade.” Therefore, you have a dichotomy between what an attorney intends to charge and the time needed to properly represent your interests.

So, what should you expect from your attorney when representing you on a DUI/OVI case? Because the defense of such a case is highly technical, any Ohio attorney representing you should, at the least, do the following:

1. Review all evidence to determine whether the officer had probable cause to stop you. Normally, this means you were stopped for some existing traffic violation, i.e. speeding, weaving, making an improper turn, etc., or you were stopped for some other peculiar driving issue, i.e. driving to slow, hesitating at a traffic light too long. If you were improperly stopped all subsequent evidence gathered against you must be suppressed.

2. Determine if there is sufficient evidence to appeal the administrative license suspension (ALS). Ohio law permits the arresting officer to immediately confiscate your driver’s license under most circumstances. Your attorney should determine if there is the possibility that your license was confiscated improperly and, if so, appeal the suspension.

3. Was there sufficient evidence to require you to submit to field sobriety tests (FSTs)? The arresting office must point to articuable facts that would require your taking these tests. If not, appropriate action should be taken by your attorney.

4. Was there probable cause to arrest? The attorney must determine if the the FSTs were properly administered. If not a suppression motion is appropriate. If the FSTs were improperly given, were the other extrinsic facts that would permit the arrest, i.e. slurred speech, glassy eyes, instability, etc.? If the FSTs are suppressed (or none given) and there was insufficient other evidence of insobriety, then there was no probable cause to arrest. Your attorney should review all documentation and, if available, any field video of the stop.

5. Are the results of the chemical test admissible? This requires your attorney to view any video of your police booking, inspect the police department’s records to be sure proper records were maintained and that, whichever chemical test was given (breath, urine or blood), all procedures used were in compliance with Ohio Department of Health requirements and in conformity with the Ohio Administrative Code.

6. Were you given all your constitutional and other legal rights? The attorney must determine if you were properly Merandized (given your rights) and told the consequences of your failure to take a chemical test. Again, if these procedural requirements were not met, then any statements made or tests conducted might not be admissible.

All of the above require the time to file proper discovery requests, demands to preserve evidence, travel to the police department to review their records, view any videos taken in the field or at the police department, attend pre-trials, and do research to determine if there are any anomalies that could result in the suppression of inculpatory evidence.

As you can tell “due diligence” is time consuming and requires a skill set that is gained by extensive experience and education in the area of DUI/OVI defense. You have a right to know that your attorney has the background to represent you properly.

And remember, you get what you pay for. It is obvious that the amount of time necessary to complete this “due diligence” is formative. Any attorney that is willing to charge you a minimum amount and appear in court “to see what they can do for you” is not properly representing your interests.

I receive many calls from those facing OVI or DUI charges seeking legal advise. Nearly every conversation gets around to the cost and eventually to the question, “Do I need an attorney?” Lets explore that issue. There are a number of reasons why you should have the benefit of counsel.

The defense of an alcohol related driving offense is very complex. A number of areas need to be investigated before you can determine your best approach. Was there probable cause to stop? Was there probable cause to ask for a chemical test? Were the field sobriety tests administered properly? Were the records of the breathalyzer, blood draw, or urine test kept in accordance with Department of Health and Ohio Administrative Code guidelines? Were you properly notified of the consequences of your failure to take a test? If you refused to take a test or the reading was greater the .17 (breath) there can be additional consequences that must be explored. These questions must all be answered before any plea should be given. See my web site for further dicussions of these topic.

The cost to you of pleading guilty (or no contest) can be staggering. First a DUI/OVI conviction can never be purged from your driving record. It will remain on your driving record your entire life. DUI/OVI is a 6-point offense. An accumulation of 12 points can result in your driving privileges being suspended for an additional one year over and above any suspension resulting from your DUI/OVI conviction. Your insurance rates will surely rise dramatically and your insurance may be cancelled altogether. You may suffer travel restrictions. Many countries, including Canada, have restrictions on admitting anyone convicted of DUI/OVI. Your employment may be impaired if driving on company business is part of your job description. If you have a CDL license you face a mandatory 1-year suspension of your commercial drivers license, with no privileges.

DUI/OVI is one of today’s political “hot potatoes.” Some judges and police departments have “agendas” to ensure there is a conviction. Many organizations, including MADD actual monitor courts to determine if judges are being too lenient. As a result, a politically charged issue such as DUI or OVI is nearly impossible to win, or get reduced to a non-alcohol offense without some leverage being applied to motivate the prosecutor into thinking the case might be lost..

So, do I need an attorney? I think the answer is self-evident.