Blog Topic

How a Lawyer Handles a DUI Charge
Posted by: Zach Peagler
November 13, 2009

 In recent months, a well-known Mobile defense attorney who specializes in DUI cases, was arrested on suspicion of DUI after a deputy allegedly observed him swerving along Dauphin Island Parkway. Though there is no video of the scene, reports show that the accused refused to take the breathalyzer test. He then spent the night in jail. The DUI charges have since been dropped because the District Attorney wrote in a motion to the court that there was "insufficient evidence to establish guilt" and mitigating evidence that created reasonable doubt. The mitigating evidence referred to is a tape of the accused being booked into jail after his arrest, which led the D.A. to believe the suspect was not under the influence of alcohol.

Though no DUI conviction will appear on his record for the incident, the accused still did lose his license for 90 days, as required by Alabama law. Remember, refusal to submit to a breath test after operating a motor vehicle on the public roadways results in an automatic suspension of your license for a period of at least 90 days, regardless of guilt. In any event, the defendant/attorney in this case is free from a DUI at least in part because he followed that favorite piece of defense attorney's advice in criminal proceedings, "Keep your mouth shut."

Drive Safely,

Zach

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I'm Being Pulled Over... Now What?
Posted by: Zach Peagler
December 31, 2008

We get asked the age-old question all the time: "Do I blow or not?" The answer is, much like the answer to all other legal questions, convoluted. It's more complicated than just whether you choose to take the breathalyzer test, and the punishments received for a DUI charge and potential conviction can vary based upon your actions, or lack thereof, following a traffic stop for Driving Under the Influence. The following is the short version of the long and convoluted explanation of your rights following a traffic stop...

You should be courteous to the officer that pulls you over, including tendering your license, registration and insurance card upon his approaching your vehicle. However, you should feel free to inform the officer that you have committed no traffic offense and therefore request that all of the documents you are tendering to him be returned to your possession promptly, and that you be allowed to leave without undue delay. Let him/her know that unless your items are returned that you must assume you are under arrest and that you must obey his/her orders but that you are doing so under protest and coercion.

DO NOT answer any questions at this time. Inform the officer that you are exercising your right to remain silent and / or to have your attorney present during any questioning. Further, request that you be allowed to contact your attorney at the earliest feasible time, as afforded to you under Alabama law and the U.S. Constitution.

Alabama law DOES NOT require that you submit to ANY field sobriety testing. Even if you believe whole-heartedly that you can pass the tests (if you believe this, there is a high probability that you are drunk), DO NOT subject yourself to any tests. These tests are set up for you to fail, even if you are sober. Subjecting yourself to these tests, is offering free evidence of your guilt to be used against you in court. If you feel threatened by the arresting officer, or fear for your safety, inform him that you will submit to the tests, but only to avoid confrontation with an armed law enforcement officer. If the incident is being videotaped, which you should demand if it is not already being done, you should state this to the officer in front of the camera and request that all video evidence be preserved for later use at trial.

Alabama law DOES require that you submit to tests of your breath, blood, urine or other bodily substances under what is commonly referred to as the Implied Consent Statute. However, you should inform the officer that you maintain that he/she did not have probable cause to stop your vehicle, nor sufficient evidence to request a chemical test. Further, you should demand that the testing be done in strict accordance with the law, including that the tester show you a copy of his permit to perform such testing, that you be given a copy of the implied consent rights that the officer should read to you, that any device used for testing be in good working order under the manufacturer's guidelines, and that all mandated observation periods be followed precisely (see article: "The Snake Slips Through the Hands of Justice?").

Following any testing performed (only if the officer does all things mentioned above), you should request that a copy of the results be provided to you, whether via printout or that you view the digital results of any breathalyzer. If any blood or urine are taken, you should demand an independent analysis of the samples and that a sufficient amount of the samples are kept in proper condition for said independent analysis. Further, you should request that following any test administered by the officer, that you be transported to the nearest hospital so that an independent blood alcohol test may be performed, and that you would like to have your own private physician administer said test. If allowed, do not provide any samples to the officer, and notify him/her that you object to that as you are collecting samples for your attorney and said samples are therefore confidential.

Finally, you should object to any search of your person or vehicle, but obviously allow it under protest if the officer demands it. You may request that your vehicle be left at the present location with a note explaining that it will be removed within the period prescribed by law.

I would guess that 99% of DUI defendants never really thought about what they would do in this unfortunate situation until the "moment of truth." However, if you follow these pointers and reminders, it could greatly improve your chances of defending a questionable DUI charge. If you are extremely intoxicated, you should not be behind the wheel in the first place, but obviously, these pointers would likely go out the window. Chances are, you would not be thinking clearly enough to remember what has been written here.

As a side note, these pointers have been largely gathered through the teachings of lawyers that have been doing DUI defense work, or have been and are Municipal Court Judges in Birmingham for many decades, including Mark Polson, Tommy Spina and Brad Bishop.

Be safe on New Years, and remember to cab it if there's any doubt...

Drive Safe,

Zach

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Danger Posed by Drunk Drivers Allows Teeth in the Law
Posted by: Zach Peagler
October 02, 2008

You may think the punishment handed out in the case mentioned in this article, http://www.suntimes.com/news/24-7/1153230,dui_a090908.article, was not enough, or you may think it was too harsh in light of the fact that the victim was allegedly drunk as well.  The interesting part of this from a legal standpoint is that he plead guilty to "Aggravated DUI," presumably under Illinois state law.  From experience, I would say that his attorney believed he had gotten him the bestdeal possible and almost certainly did not expect his client to be sentenced to a jail term just six months less than the maximum sentence possible. 

For a second, forget the emotion of the "facts" of this case (after all, it's a news article so we really don't know the facts).  Forget that the defendant was an illegal alien.  Forget that one person died and one was critically injured.  Forget that the defendant apparently left the scene of the accident.  From a solely legal standpoint, there are many facts left to be desired from the article, but an obvious question to me is how the prosecution determined this defendant to be drunk.  If he fled the scene, all the way to Michigan for that matter, how in the world did they know he was drunk when he hit the victims?  And who had evidence of what, if any, role the victims played in the accident?  If you assume the defendant was at fault because you assume he was intoxicated and driving under the influence, do you not also assume that the allegedly intoxicated victim did something to contribute to the accident?  For this defendant's sake, I hope these evidentiary avenues were fully explored.

I don't mean to suggest that the defendant in this case did not get what he deserved, as I have no more knowledge of the facts than you do; I am simply seeking to again point out the importance of legal counsel if someone you know or love makes a mistake and finds themselves in a terrible position such as this.  You certainly would not want them to plead guilty to a crime that they did not commit under heavy pressure from prosecutors searching for a conviction to vendicate the victims of a crime.  It is absolutely critical that no stone be left unturned when you are dealing with someone's liberty.  It is a cornerstone of our judicial system. 

 Drive Safe,

Zach

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Why Hire a Lawyer?
Posted by: Zach Peagler
July 18, 2008

Why Hire a Lawyer?

I have wondered in certain circumstances whether the client that has hired us understands the "bang for the buck" that he/she gets, and so I wanted to put down a list of services that a competent lawyer should provide to a person charged with DUI (this list is not exhaustive):

•1. First, as one client recently told Brett, the mere procedural process of going through a DUI is confusing. This particular client stated that he could not have made it through the rigorous paperwork involved in applying for deferred prosecution, nor understood the jargon of the prosecutor as far as what would happen to him if he entered a plea, without the help of an attorney. Believe me, when your liberty and pocketbook are on the line, you don't want to be a position of not understanding what the prosecution is offering you. Along those lines, a competent attorney can stand beside you if problems arise with your Court Referral Officer (the official that will place you in court mandated alcohol education classes, if required) and can help decipher often confusing paperwork you will receive from the Department of Public Safety regarding your license suspension or revocation.

•2. Second, a competent lawyer will do the necessary "digging" to make sure the municipality or county's case against you is a valid one. Often, people aren't aware of the numerous procedural issues involved with properly charging someone with DUI. Believe me, you will suffer enough from merely being charged with DUI (in terms of your reputation, potential ridicule, job instability and financial burden), regardless of the outcome of the case, so don't let the situation compound itself by facing stiff penalties and hefty fines for a case that has no merit. If the weaknesses in a prosecution's case are properly exposed, your fines and sentencing can be reduced, even on a guilty plea.

•3. Competent legal representation should ensure that the civil penalties you are facing are minimized if possible. The obvious "civil penalty" is suspension of your driver's license (check http://www.lakemanpeagler.com/ for details on license suspension). Current DUI laws allow for unprecedented restrictions of your rights guaranteed under the U.S. Constitution, and without a lawyer the chances of you fighting these restrictions with success is greatly reduced. Fighting these restrictions requires additional time and cost, so be prepared for that as well, but we are having great success in reducing license suspension times for first time offenders. Remember, your license suspension is NOT decided by the judge!

•4. A good lawyer will take a bogus case to trial! A high percentage of DUI arrestees maintain their innocence throughout, and yet often plead guilty simply because of confusion, fear, or a nudge from a lawyer that doesn't want to go to trial. When hiring a lawyer to represent you in a DUI case, or any case for that matter, and you maintain that you are innocent, you should ask them if they're willing to take your case to trial.

•5. Further, a good lawyer should appeal an unfavorable result at the municipal court level to the circuit court and try your case to a jury. Although the fee structure that a lawyer uses may not include an appeal, or even a trial in the upfront cost, you should discuss the potential for this with your attorney and get an estimate of the costs associated with these possibilities at your initial meeting.

Drive Safe,

Zach

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