Guilfoil Law Group
Questions You Should Ask when Hiring an Attorney or Lawyer in a Missouri DUI/DWI or Other Drunk Driving Case
Do I Have to Hire an Attorney to Handle My Missouri DUI / DWI Case?
The first question that potential DUI / DWI clients in our office almost always asks is: “Do I have to hire an attorney to handle my Missouri DUI / DWI Case?”
If you needed brain surgery, you would not do it yourself. You would not hire a general medical practitioner just out of med school to perform the operation for you, either.
Not only do you need an attorney, you need someone who specializes in handling this type of case. Long gone are the days where a Missouri DUI / DWI charge is little more than a glorified traffic ticket.
DUI / DWI is an incredibly political offense in today's world. The cards are stacked against a person charged with DWI, even with a good DUI / DWI attorney.
Even incredibly reasonable judges are afraid of being perceived as being “soft” or sympathetic to DWI issues when groups like M.A.D.D. are constantly threatening to organize against the judge's reelection bid if the judge does not drop the hammer on people accused of this type of offense.
The legislature has so gutted the rules that apply to a Missouri DUI / DWI proceeding, that there truly is a “DUI Exception to the Constitution.”
A person can win the criminal portion of his or her DUI / DWI case (the portion where the State of Missouri is trying to put the driver in jail, and/or fine them for the crime of DUI / DWI), and STILL have his or her driver's license suspended in a separate civil administrative hearing under different rules.
These civil, administrative driver license suspension hearings are a Constitution-free zone to put it mildly. You can win the criminal portion of your case, and even show that the officer stopped your vehicle for an illegal purpose (it doesn't matter in the civil case), and STILL have your license suspended!
Tremendous resources have been applied be the State and the federal government to justify the end result of obtaining more and more DUI / DWI convictions.
NHTSA (the National Highway Traffic Safety Administration) has spent hundreds of thousands of taxpayer dollars to try and justify “allegedly” standardized field sobriety tests used against drivers as proof of their intoxication in these cases.
Never mind that many sober people cannot perform these tests. Never mind that statistically (by NHTSA's own original validation research):
23% of sober people are improperly deemed to have failed the HGN Horizontal Gaze Nystagmus Eye Test;
32% of sober people are deemed to be above 0.10% blood alcohol content and improperly deemed to have failed the Walk-and-Turn test;
35% of sober people are deemed to be above 0.10% blood-alcohol content and improperly deemed to have failed the One-Leg Stand test.
Worst of all, even when all three of the standardized field sobriety tests are administered, interpreted, and scored exactly right by the arresting officer (which they virtually never are), 17% of sober people are deemed to be above 0.10% BAC by NHTSA's own original numbers!
If you were miserably ill, and a doctor handed you a bottle of 100 pills, and told you 83 of the pills would cure you, and that 17 of them were poison, would you reach in and take one? Of course not.... But this nonsense is good enough for government work...
Unreliable breath tests are also usually used instead of blood tests in most Missouri DWI cases. We have an entire section of this website devoted to the fallacies of breath testing, particularly in the nonsensical way in which the State of Missouri gives breath tests, unlike other states with real breath testing programs.
In general, every time the Missouri legislature meets, the penalties are ratcheted up for DUI / DWI or other drunk driving offenses, and the fines and conditions of probation are always being raised. It makes good sound bytes in an election to be "tough on DUI."
Despite all the political talk of wanting to solve the "DWI problem," reality is that DUI / DWI arrests in Missouri are a money machine that is relied on by the State of Missouri for finances.
None of the cities in Missouri are actually looking to reduce the number of DWI drivers, and none of them really want the “DWI problem” to “go away,” because the system is absolutely addicted to the money that DUI / DWI arrests generate.
Cities around the State of Missouri have come to depend on the fines levied against people accused of DUI / DWI as part of their budget and operating income.
If the Missouri DWI cash cow actually ever was killed for the state, many Missouri cities would go largely bankrupt without the funds. The list goes on and on. These are just a few obstacles that a person faces when charged with DUI / DWI in Missouri.
DUI / DWI and other drunk driving cases are some of the most difficult to defend because of the scientific issues that have to be effectively dealt with for the driver to ultimately prevail.
Many criminal cases can be dealt with by any lawyer with a working knowledge of the “criminal system.” In other words, they can get by on their experience, and often win, based on that experience, a “generic” criminal case.
This is not so with a Missouri DUI / DWI case. An experienced attorney who knows nothing of the intricacies and rules of "standardized" field sobriety testing, breath testing instruments, electronics, problems in breath and blood testing procedures, human physiology and how different substances affect people, is NOT well-equipped to handle Missouri DUI / DWI or other drunk driving cases, regardless of his or her experience.
Trying to handle a Missouri DWI case by yourself without a lawyer is even worse, and a total exercise in futility. This does not mean that you are not intelligent, just not versed on all of the details.
You usually have just one chance to effectively raise your defenses in a Missouri DWI case, even when you have good ones. Doing it yourself without experience will preclude you from later hiring someone to try and go back and fix your mistakes. Most issues are lost on appeal if not effectively raised at trial no matter who you hire to try and fix your mistake.
So as a starting point, you must hire an attorney to handle you Missouri DUI / DWI case effectively. The next issue is which attorney should you hire.
How Much Experience Does the Lawyer You Are Considering Have in Missouri DUI / DWI Cases?
Does the Lawyer Dedicate a Significant Portion of His or Her Practice to Challenging Missouri DUI / DWI Cases?
How Much Experience Does the Lawyer You Are Considering Have in Missouri DUI / DWI Cases?
Does the Lawyer Dedicate a Significant Portion of His or Her Practice to Challenging Missouri DUI / DWI CASES, Or Is He or She an Attorney Who Primarily Handles Other Areas of The Law but “Snags” an Occassional Guilty Plea in Missouri DUI / DWI Cases for Easy Money?
Right out of the gate, when you begin your search for a Missouri DWI attorney on the internet or in the yellow pages, you will encounter dozens of lawyers that are willing to take an unreasonably small amount of your money to show up one time in court on the criminal portion of your DWI case and plead you guilty to "snag" the easy money.
Usually, this type of lawyers' law practice is almost entirely devoted to an area of the law other than DWI.
This type of attorney often knows nothing about the intricacies of Missouri DUI / DWI law.
He or she usually cannot properly advise the client of the full consequences of pleading guilty, and is basing his or her (unreasonably low) fee entirely on appearing one time in criminal court, taking whatever first offer the prosecutor gives—essentially throwing the client on a sword—without considering any other option.
With this attorney, there is no other option than pleading guilty on whatever terms the Prosecutor jams down your throat, because that is all he has been paid to do as he or she has charged so little.
Unfortunately, all too often pleading guilty is all that he or she has the knowledge or experience to do, regardless of the fee charged.
How does the lawyer you are interviewing believe your Missouri DUI / DWI case should be handled?
Is this attorney assuming you are in fact guilty and trying to force you into pleading guilty to a Missouri DUI / DWI without first hearing all of the facts of your case?
A generalist lawyer may be fine for your uncontested divorce, but will not likely handle your Missouri DUI / DWI jury trial involving a .177% BAC with an expert witness with any expertise.
The generalist attorney should be avoided at all costs in a Missouri DUI / DWI case, and is usually the easiest to “screen” out. If the attorney you are interviewing devotes less than half of his or her practice to handling Missouri DUI / DWI cases, and does not have a working knowledge of the intricacies of these types of case, I would encourage you to run, not walk, out of his or her office.
I would point out that this is true even with some general criminal defense lawyers. While a general criminal lawyer is better than a general civil lawyer for a Missouri DWI case who is snagging easy money on a case he or she knows nothing about, you should still be careful.
Even a lawyer who focuses on criminal law should be avoided if they do not have a working knowledge of DUI / DWI, or who do not focus a significant portion of his or her practice to DUI / DWI.
A burglary or arson trial is nothing like a DUI / DWI trial.
Once You Find an Attorney Who Primarily Handles Missouri DUI / DWI Cases, Is His or Her Practice a Volume Practice or A Select Practice that Challenges These Cases Where Appropriate?
Does He or She Take Few Cases and Thoroughly Work Them or Is This a Volume Practice Where Dozens of Cases Are Handled for A Low Rate that Is Based on The Client Having to Plead Guilty?
Once you find a lawyer that focuses on Missouri DUI / DWI cases, you must still investigate further.
In addition to avoiding lawyers who practice in some other area of the law and want to instantly plead you guilty, you must also screen the alleged "Missouri DUI / DWI “specialists” to see if they are skilled in actually fighting DUI / DWI cases.
Many of these alleged "Missouri DUI / DWI specialists” are suspect at best if your case requires a trial.
If what you need is a “fighter,” you must determine whether the lawyer's office you are interviewing is:
a VOLUME DUI / DWI practice,
a SELECT DUI / DWI practice that challenges these cases when appropriate facts are present.
I would point out to you that the only difference between the divorce lawyer who "snags" the occasional DWI case for the easy-money guilty plea, and an alleged "Missouri DUI / DWI “specialist” who pleads everyone guilty, is that:
the alleged "Missouri DWI specialist” does the same disservice to a lot of people at the same time.
In your interview, these “Missouri DWI specialists” will often:
- Rely heavily on the fact that he or she used to be a prosecutor or a judge; or,
- Rely on his or her “connections” with the courts and prosecutors he or she used to work with, etc.
If you follow many of these alleged "Missouri DWI specialists" to court, and actually sit through the court docket and hear all of the cases called, you will see the "specialist" plead five or more people guilty at the same time. In some notorious cases, you will see them plead ten to twenty people guilty on the same court date! You can see the "specialty treatment" you might receive if you do not choose carefully.
Some of the best “known” DUI / DWI attorneys in Missouri are in this category. They often get their clients from the bonding company that bonded you out after you were arrested.
What this type of “specialist” specializes in is pleading you guilty without a fight, while doing the same thing to several other people at the same time, making a lot of money for doing nothing, rather than specializing in helping you with your case or figuring out whether or not your case can be won.
I can guarantee you that while many of their cases might have been plead out anyway, due to bad facts, that at least some of them could have been taken to trial, and many of them could have been won if someone had taken the time to raise the proper challenges.
Many of these lawyers won't even show up in court to do the pleas themselves when they are pleading a lot of people guilty at the same time despite having taking in all that money...
They retain as many DWI cases as they can get in the door, charge a low amount, and then send an associate to plead them all guilty at the same time. If they showed up to do the pleas themselves, they could not be at the office taking in more and more DWI clients for future pleas.
Unfortunately, there are also several attorneys in Missouri who do possess the knowledge to fight your Missouri DUI / DWI case effectively, but choose to take the easy route. You see, it is a lot easier to set up a volume DUI / DWI practice, because this type of practice often makes a lot more money for doing a lot less work, rather than letting a judge or jury decide your case.
These attorneys are difficult to detect (even for other lawyers to sort them out).
I would here point out that I am not saying all Missouri DWI cases should be fought or taken to trial. Some cases can be pled out with less damage to your life than others. Every lawyer who handles these cases pleads some guilty.
But I am saying there are cases that should not be plead guilty, and the decision to plead guilty should never be made in ANY CASE prior to a qualified lawyer evaluating the case's strengths and weaknesses.
If your job is riding on whether or not you lose your driver's license, such as where you drive for a living with a commercial driver's license (CDL), or your freedom is at risk where your case caries mandatory jail time, you need to proceed very carefully in making your choice of counsel.
In short, sometimes it is not in your best interests to plead guilty in a Missouri DUI / DWI case, and sometimes it is the best course of action, because Missouri is one of the most lenient states in the country regarding probation.
A true Missouri DWI specialist will advise you fully of all aspects of your case, from an educated point of view, without pushing you into pleading guilty before investigating your case.
What Kind of Questions Is the Attorney Asking Me About the Facts of My Missouri DUI / DWI Case?
Does the Attorney Inquire Into Whether or Not You Consented to A Chemical Test or If You Refused the Test (Whether or Not You Blew) in Your Interview?
As discussed elsewhere in this website, there are two portions to a Missouri DUI / DWI case:
—the criminal portion (where the State of Missouri is trying to fine you and/or put you in jail for the offense of DUI / DWI):
—the civil portion (where the Missouri Director of Revenue is trying to take you driver's license away for DUI / DWI).
A sure sign that you are interviewing a lawyer who pleads everyone guilty is if this attorney only talks about the criminal portion of your case.
If he or she is blasé about making sure you get your right to challenge your driver's license being suspended when you are questioned about your case, you can be sure he or she does not intend to vigorously defend your driver's license.
Your right to getting a hearing on the civil side of your DUI / DWI case to challenge you driver's license being suspended is not automatic.
Your driver's license will automatically be suspended if you do not make a timely request, and how long you have to make that request depends on:
if you gave a chemical test and failed,
if you refused a chemical test.
There are specific, different deadlines for each. (It also depends on what State you are in: Kansas and Missouri have different timelines).
- if you consented to a chemical test and which resulted in a test over the applicable legal limit, you have 15 days to request an administrative hearing from the Missouri Director of Revenue.
- If you refused a chemical test, you must file a civil lawsuit in the circuit court of the county where you were arrested within 30 days.
- you only have 10 days to file your appeal regardless of whether you consented or refused.
Even a novice Missouri DUI / DWI attorney will know these deadlines, and should properly advise you of them in your interview so that you do not have your driver's license automatically suspended without a fight.
Whether or not the attorney knows how to fight the civil driver license suspension is dealt with below.
Even if you do not intend to ultimately fight your driver's license being suspended, you can put off when the suspension happens by requesting the hearing.
Does the attorney you are interviewing focus on what happened on the night you were arrested, prior to being arrested, or does he or she spend the entire interview focused on the result of the breath or blood test after you were arrested as the final say in whether you have a potential defense?
A dead giveaway that the attorney you are interviewing does not know how to fight a Missouri DUI / DWI case is if he or she in your interview focuses solely on how "high you blew" after you were arrested when evaluating your case, rather than focusing on all the important issues prior to arrest-- in other words, the real issues that win these cases.
Prosecutors or judges often improperly focus on "how high you blew," and nothing else, but a qualified DWI lawyer certainly will not, and will focus on all the issues prior to arrest without fixating on the chemical test result as if the case cannot be won if you blew above a certain number.
You see, Missouri DWI cases must be evaluated on a timeline, and a thorough investigation of your Missouri DUI / DWI case begins when the officer first laid eyes on you on the night you were arrested, and does not end until the point where you gave a chemical test above the legal limit or refused the test.
"How high you blew," or your refusal to blow, is only one item of many on that timeline to evaluate-- and it is the last item.
Many things must first happen on this timeline prior to the officer's request for you to blow, to even get to the point on the timeline of considering the results of the chemical test.
Officers making Missouri DUI / DWI arrests are vigorously trained in DUI / DWI procedures. When the police stray from their training, or cut corners in the procedures they employ in making these arrests, the results can be effectively challenged.
There are numerous things an officer must do in a particular order in making a Missouri DUI / DWI arrest.
While the issues are different in the civil and criminal portion of your case, at least in the criminal portion of your case (where the State of Missouri is trying to fine you money or put you in jail for the offense of DUI / DWI), the officer must have reasonable suspicion to stop you, or everything thereafter is thrown out, including the failure of a chemical test, if any.
This is called the exclusionary rule, or the fruits of a poisonous tree doctrine—once something is done bad, everything thereafter is bad.
Even if the officer does have reasonable suspicion to initially stop you for some violation like speeding, he or she must write your ticket and let you go on your way unless he or she can articulate probable cause to arrest you for DUI / DWI, in both the civil and criminal cases. Probable cause to arrest for DUI / DWI is completely different than reasonable grounds for the initial stop.
The officer does not get to detain you for an unreasonable period of time in determining probable cause, either.
For a typical traffic stop in Missouri for a normal infraction, such as speeding, the officer:
- has the right to ask you to get out of the car for officer safety;
- has the right to make a brief pat down of your person checking for weapons pursuant to Terry v. Ohio, also for officer safety;
- has the right to make you produce your driver's license and proof of insurance;
- has the right to make you sit in his car while he runs a check on you.
(HINT: you have the right to remain silent and you WILL NOT lose your driver's license if you give him your driver's license and insurance and THEN politely refuse to answer any questions or to perform field sobriety tests prior to being arrested).
- He or she must then let you go if grounds are not present to believe an alcohol-related traffic offense is occurring.
Even assuming that you allegedly “failed” the field sobriety tests, that were properly arrested, and then taken to the station to give a chemical test, there are numerous other things that must happen before a failed or refused chemical test can be properly used against you in a Missouri DUI / DWI case.
A COUPLE examples:
- You must be read a proper Implied Consent warning advising you that you are under arrest for DUI / DWI and that your right to drive in Missouri will be suspended unless you give a breath or blood test;
- You must be given 20 minutes to consult an attorney if you requested to speak with one when the Implied Consent warning was given;
- You must be observed for 15 minutes to make sure you don't have anything in your mouth before blowing—etc.
These are just some of the numerous items that must occur in the proper order on the timeline we've been discussing before the failure or refusal of a chemical test at the end of that timeline can be used against you.
The result of the chemical test is the very last thing on the timeline. Items A, B and C, etc. must all occur before “Z,” the chemical test. A must also come before B—B must come before C, etc. If any items are left out, or shown to be done in the wrong order, everything from then on on the timeline is thrown out under the “exclusionary rule.”
Even in the civil portion of your Missouri DUI / DWI case (where the Missouri Director of Revenue is attempting to take away your driver's license for DUI / DWI) where the exclusionary rule does not apply, similar challenges can be made.
You see, in the civil portion of you case, you can show that the officer made an illegal stop and still get your driver's license suspended!
However, you can still challenge probable cause prior to arrest, and if it is shown that a reasonably prudent, cautious, and trained officer in this officer's position did not have probable cause to arrest you, you win in the civil case, even if the test result is above 0.08%.
In short, it is a sign of inexperience in dealing with these cases when the lawyer you are interviewing puts too much emphasis on whether or not you can win based on whether you were above 0.08%, or other applicable legal limit.
An experienced Missouri DUI / DWI lawyer knows what to look for, and knows that many cases with a chemical test result above the legal limit can be effectively fought and won if the facts on the timeline prior to arrest show that the officer did not have reasonable grounds to stop you or probable cause to arrest you.
An experienced Missouri DUI / DWI attorney also knows not only the state of the “current law,” but spends a significant portion of time educating himself on new cutting edge defenses that may not yet have been raised in your jurisdiction, but have been raised effectively in other places, and might be raised for the first time in Missouri in your case.
An experienced Missouri DUI / DWI lawyer also has an arsenal of tactics to get the prosecutor in your case to potentially drop the DUI / DWI charge to a NON-DUI / DWI charge such as careless and imprudent driving, defective equipment, etc.
In some situations, the prosecutor can be convinced that your case should be dropped down to a lesser charge, especially where the prosecutor believes that your lawyer will make it more trouble than it is worth to him to proceed on the merits, even if the prosecutor feels they could ultimately win the case.
Only a true DWI specialist can effectively evaluate these types of cases, and they don't do it by relying on whether or not you have given a high chemical test result.
Some cases with seemingly awful facts can be winners where a knowledgeable attorney is given the opportunity to review the case.
However, the flipside of that coin is also true—sometimes a case will appear to a novice to have merit where it is a loser. Some cases with a chemical test result only slightly above the legal limit are losers where the officer is thorough and has done everything according to his training.
For instance, recently, I was able to get reduced a criminal DUI / DWI charge with seemingly awful facts to a non-DUI / DWI disposition—in other words, the client essentially plead to a traffic ticket and was ecstatic.
It was his second violation in less than five years, and he was under the age of 21. The offense was initially enhanced to an A Misdemeanor “prior offender” DUI / DWI, meaning that he was facing a year in jail and up to a $1000.00 fine.
He was doing donuts in a school parking lot with a friend, and wrecked his car bad enough that it could not be driven off of the premises in the middle of the night—seemingly awful facts on their face. However, the first officer arrived on the scene and found both passengers of the car standing outside the vehicle. He approached the two passengers of the vehicle, asked them “if they had been drinking,” and then handcuffed them both before establishing who was driving. The second officer then arrived on the scene, uncuffed them, gave field sobriety tests which were allegedly failed pretty badly, and then took them to the station.
As discussed previously, probable cause must be established prior to the driver being arrested and cannot be “bootstrapped” by things the officer learned after the arrest is made. Because the officer did not establish who was driving prior to arresting them, I was able to talk the prosecutor into letting my client plead guilty to a traffic violation. The allegedly failed field sobriety tests and the determination of who was driving which came after arrest were inadmissible.
Does the attorney utilize a detailed questionnaire for your Missouri DUI / DWI Case?
Look for the following:
- Does it ask for detailed information about the facts of what happened on the night you were arrested?
- Does it ask detailed questions about your medical history?
- Balance issues, injuries, head trauma, inner-ear disorders, eye problems, leg, ankle, knee injuries, breathing problems, diminished lung capacity, GERD, diabetes, Atkins diet for an extended period, etc. to raise potential defenses;
- Does it ask about number of drinks you had and when?
- Does it inquire into fact witnesses who could testify on your behalf?
- Does it address the administration of standardized field sobriety tests?
- Does it ask about whether you were read your Miranda rights or given an Implied Consent Warning?
- Does it ask about how you were arrested and when you were handcuffed?
- Does it ask you about whether or not you were left alone at any time or unobserved during the 15 minutes prior to taking a breath test?
- Whether you blew or refused?
- Whether you asked to speak with an attorney?
- Whether if you did ask to speak with an attorney, you were given 20 minutes to contact him or her?
Is the lawyer only talking about the criminal portion of your Missouri DUI / DWI case or is he or she going to try to save your driver's license in the civil portion of your case?
One of the biggest items you should look at in hiring a Missouri DUI / DWI lawyer is whether they are only willing to handle the criminal portion of your Missouri DUI / DWI case, or whether they are also addressing the driver's license, civil ramifications of your Missouri DUI / DWI charge.
The first thing I would wonder if I were a client speaking with an attorney that was only willing to handle the criminal portion of a DUI / DWI case, is why is that?
Many Missouri lawyers who claim to handle DUI / DWI don't even know what the consequences are for your driver's license in a DUI / DWI case.
One thing that I have heard repeatedly from people interviewing our office after they have interviewed other lawyers that makes me particularly irritated is:
"I just interviewed this morning with "Lawyer X," and he told me that it was pointless to try to challenge having my driver's license suspended, and that administrative hearings cannot be won. He told me that any lawyer that tells me to fight for my license is just wasting my money."
Many lawyers you might interview will tell you that the hearings "cannot be won," and that you will lose your driver's license.”
I have had at least ten interviews with people in the last year who have come to our office after receiving such advice from one Kansas City-area attorney known for “specializing” in DUI / DWI.
I see this lawyer on court dockets routinely pleading at least 5 and sometimes as many as 10-20 people guilty at the same time!
A lot of money is being made getting people to have their licenses suspended without a fight, and for appearing for them one time in court for about 30 minutes holding their hand while they throw themselves on a sword in the criminal case.
Cost beneficial? You tell me.
What is your driver's license worth to you?
Do you want to just give it away without a fight just because these hearings are hard to win?
If the attorney you are considering hiring is employing these tactics as an excuse for why they are not challenging your driver's license suspension in your Missouri DUI / DWI case, my advice is to be very wary in hiring this person.
While it is true that these hearings are difficult to win, an attorney who waives your right to a hearing challenging your driver's license being suspended by not timely requesting a hearing before properly determining whether you have any defenses you could raise at such a hearing is doing you a grave disservice. An argument could be made this is committing malpractice.
Our office does offer split rates for Missouri DWI cases based on what the client ultimately decides they want to do if we a retained to represent them.
Some clients choose to waive their right to representation in the civil portion of their case, and to have their license suspended without a fight. However, we will never waive a client's right to an administrative hearing without fully advising them of their rights first. And we will certainly never discourage them by telling them these cases cannot be won.
I personally believe it is a mistake to ever waive your right to an administrative hearing. Let me explain.
Often times, it is true that these civil hearings cannot be won, because not much has to be shown for the Director to win and suspend your driver's license.
However, if you immediately waive your right to fight, and it is then later determined that you do have a good defense that could prevent your driver's license being suspended if the case had been properly evaluated and if the driver's license suspension challenge had been timely requested, you cannot go back and change your mind. You get one shot. It is you that will suffer the consequences of your attorney not taking your case seriously or not knowing the proper challenges to make.
I would also offer the following:
Even if your civil driver's license suspension case is one that is unlikely to be won on the merits because you have bad facts:
I would offer that the worse the facts are in your Missouri DWI case, the more important it is to have an administrative hearing, even if you know you will lose it and ultimately have your driver's license suspended.
Sounds like a bunch of lawyer double talk, doesn't it? Let me explain why it is not.
The criminal portion of most non-felony DWI cases in Missouri takes place in Municipal Courts and not in State or Circuit Courts.
In many Municipal Courts in Missouri, your right to discovery and to depositions are greatly limited as compared to state court.
Discovery and depositions are useful because they give you the opportunity pretrial to fully investigate the case, and see what evidence the State has against you.
Pretrial depositions also give you the opportunity to bring a court reporter to type down everything that the officer says regarding what happened on the night you were arrested early on before a prosecutor can lead the officer through his testimony.
Pretrial depositions also allow you to early on nail down the officer as soon as possible to one version of his story before he later miraculously “remembers” on the day of trial numerous bad things that allegedly happened which he “forgot” to mention in the police report. You must "marry the officer to his report" prior to trial.
Depositions allow you to lock the officer into a version of the story early, so if he later changes his version of the story at trial, his testimony is given less weight with the judge or jury because of the conflicting versions of his story he might have given at different times.
This is called impeaching a witness. You can “impeach” him with his previous version of the story if he later changes things around, and believe me, officers often have two or three different versions of their story when pressed by someone who knows what to look for.
If you were called for jury duty, and you were responsible for determining whether or not to believe a driver accused of DUI / DWI or an arresting officer, would it affect your decision that the officer has told three different, conflicting versions of what happened on the night of arrest?
When the criminal portion of your Missouri DWI case is in Municipal Court, the only chance you have to interview the officer prior to trial usually is in the separate administrative hearing challenging your driver's license being suspended, or in a separate deposition, which many Municipal Courts will not allow.
It is also particularly important to get the officer's testimony as soon as possible in felony cases in Missouri Circuit Court. Missouri DWI law regarding DWI felonies have enhanced penalties that have become particularly nasty.
There is now a lifetime look back on prior offenses.
A third violation of Missouri DWI or BAC within a lifetime (not within 10 years) is a Class D Felony and is punishable by up to 4 years in prison, a $5,000 fine, or both. The old Missouri DWI law which required that the first violation occurred within 10 years of the 3rd offense to be enhanced to a felony is gone.
A fourth violation of law for either DWI or BAC (within your lifetime) is a Class C Felony and is punishable by up to 7 years in prison, a $5,000 fine, or both. This person is now classified as an "aggravated offender" under the new law.
A fifth or subsequent violation of law for either DWI or BAC (within your lifetime) is a class B felony and is punishable by a term of years of not less than five years, and up to 15 years in prison. This person is now classified as a "Chronic Offender" under the new law, and facing draconian penalties.
Click here for a discussion of the 2005 New Missouri DWI criminal penalties.
A “good” Missouri DUI / DWI lawyer seizes the opportunity in these types of cases to interview the officer as soon as possible, and has a court reporter there to take down the officers testimony at the hearing (regardless of whether you win it or lose it, and regardless of whether the administrative hearing is in-person or on the phone) to make a record.
The worse the facts are in your case, the more important it is to do this.
There are often gems in the officer's testimony at the administrative hearing that can absolutely sink the prosecutors boat in the criminal portion of your case, even if it ends up that the civil hearing is lost and your driver's license is suspended (Remember: different rules apply to the civil and the criminal part of your case).
Unless your lawyer has bothered to bring a court reporter to type down everything the officer has said, it is like it never happened and the officer can later change his story around without consequence!
A good Missouri DUI / DWI attorney can use the officer's testimony to sometimes convince the prosecutor to reduce the charge to a NON-DUI / DWI disposition, but believe me, the prosecutor isn't going to do it for you if your attorney does not perform a lot of work, and all of this takes a lot of work, and knowledge of what to do with the information once you have it.
The prosecutor is definitely never going to reduce your DUI / DWI to a NON-DUI / DWI disposition for an attorney that has plead everyone guilty in that court since the day he opened his office. Believe me, prosecutors know which attorneys will try a Missouri DWI case, and which lawyers plead everyone guilty.
It is the polite but firm showing that a lawyer is willing to take a matter with bad facts to trial where the case might be won outright with the State not getting any money for fines at all which sometimes gets a prosecutor to reduce a charge to a non-DUI / DWI disposition.
All plea bargains for all lawyers who appear in Missouri on DWI cases are not created the same.
Non-specialist Missouri DWI attorneys take whatever terms the prosecutor gives them, because they never take these cases to trial. They won't even try cases that can be won. Good Missouri DUI / DWI lawyers attempt every avenue of attack available so even if it is pled out, the best terms possible are obtained.
If the attorney will handle the civil portion of your case, is the lawyer talking about timely requesting an administrative hearing in your Missouri DUI / DWI case and challenging your driver's license suspension as part of his or her fee?
After determining that your Missouri DUI / DWI attorney is competent to handle your DUI / DWI case, it is equally important to discuss and negotiate in writing whether the fee you are paying includes having your driver's license suspension proceedings handled.
One of the biggest problems our office sees with clients coming in our office is a verbal agreement of, "Don't worry. I will take care of it," and then charging $750.00.
What will they take care of? Particularly for an unreasonably low fee...
Get it in writing how much you are paying, and what is included in that fee; when the fee will be enhanced to a greater fee based on what happens in your case; and if the scope of your contract covers the criminal case only, or also covers the civil driver's license suspension.
Is the attorney knowledgeable in the law regarding Missouri DUI / DWI cases, and does he or she know the types of challenges to make?
This is one of the biggest areas to concentrate on when evaluating whether a Missouri DUI / DWI lawyer is the right choice for your case.
If the lawyer you are considering hiring does not know the answer to simple questions about the law in your interview, both for the criminal consequences and the driver's license suspension consequences in your Missouri DUI / DWI case, or indicates, “I will look that up and get back to you,” how many times do you think he or she has successfully dealt with your issue if they don't know the answer?
Knowledge is power. I am amazed at the depth of knowledge many first-time offenders have gained from researching for themselves in a very short period of time prior to their first interview. I applaud them for this. The internet is an incredible source of information where a lot of information can be obtained in a very short period of time.
I encourage you to use it. If you know more about Missouri DUI / DWI law after minimal research on the internet than the lawyer you are interviewing— RUN.
Doing even cursory research can determine who the players are in Missouri DWI cases. There are a dozen or so in Missouri who specialize, and they can be readily found.
Having said that, I in no way mean to apply that you can effectively handle your case by yourself from doing research on the internet, but can use it to effectively choose your attorney.
Is the attorney trained in Standardized Field Sobriety Testing so he or she can properly challenge the arresting officers' conclusions in your Missouri DUI / DWI case?
In Missouri DUI / DWI or other drunk driving cases, one of the best areas to challenge (if not the best) a defense attorney can raise is to challenge the manner in which the officer administered standardized field sobriety tests to you as a means of establishing probable cause to arrest you for DUI / DWI.
Accordingly, it is imperative that the Missouri DUI / DWI lawyer you are considering hiring is an expert in this area of Missouri DUI / DWI law. Your lawyer must be trained in the rules the officer must follow in establishing probable cause to arrest you, or you will lose. Believe me, the procedures for standardized field sobriety testing the police utilize in Missouri DUI / DWI cases are not taught in law school. There are only a very few lawyers in Missouri who know how to properly challenge and get excluded from evidence the standardized field sobriety tests the officer will attempt to use against you.
If the person you are considering hiring for your Missouri DUI / DWI case does not know the rules the officer must follow in your case as well or better than the officer does, how are you possibly going to win your case?
If mistakes are made by the officer in administering standardized field sobriety tests (and believe me, in Missouri DUI / DWI cases that have a videotape of the standardized field sobriety tests being given there usually are at least some mistakes), does the lawyer you are about to hire have any knowledge whatsoever about how to point these mistakes out to the judge or jury in your case?
There are National Highway Traffic Safety Administration certification courses on Standardized Field Sobriety Testing and Drug Recognition Examination procedures available to all defense attorneys around the country, but only a handful of defense attorneys in the State of Missouri have taken the time or expense to attend them.
Mr. Guilfoil has completed the International Association of Chiefs of Police (IACP)/National Highway Traffic Safety Administration (NHTSA) approved 20-hour course in the administration of standardized field sobriety tests, and is one of a very few defense attorneys in the State of Missouri certified as a IACP/NHTSA Standardized Field Sobriety Testing Instructor.
He has also completed the 24-hour Drug Evaluation and Classification Overview Course, which forms the basis of the IACP/NHTSA Drug Recognition Expert Program.
He is a published author for the Missouri Bar Association, having authored the Standardized Field Sobriety Testing and Cross Examination of the Arresting Officer chapter of their desk reference manual on DUI / DWI used by attorneys around the State.
He has also taught classes to other attorneys in Missouri and Kansas on the subjects of standardized field sobriety testing and drug recognition examinations.
He has also taught the proper procedures to administer, interpret, and score standardized field sobriety tests to the Missouri State Water Patrol in Clay County Circuit Court, Division 6.
So whether your case in Missouri is DUI / DWI / BAC alcohol, or is a DUI / DWI drug case, our office has the credentials to handle your case.
If the lawyer you are interviewing cannot pull the applicable NHTSA manual off of the shelf (there are several of them) that he will use to cross examine the arresting officer in your Missouri DWI case, you need to think very carefully about how effective he or she will be in trying to get these tests kept out of evidence against you.
If you are ultimately going to try your Missouri DWI case to a judge or jury, you will often have to hire an expert witness to explain how the standardized field sobriety tests were improperly administered, interpreted or scored to keep them out. Who does the person you are interviewing use a standardized field sobriety testing expert witness when they take these case to trial? Ask them. If they get a puzzled look on their face or cannot readily answer, you should think about it.
Is this attorney trained in chemical breath testing or trained on the Intoxilyzer 5000 or the Datamaster breath testing machines used in Missouri DUI / DWI cases? Blood testing?
Equally as important as training in standardized field sobriety testing is whether the attorney you are going to hire in your Missouri DUI / DWI case is trained in the administration of chemical tests.
This is truly where the rubber hits the proverbial highway, and what makes Missouri DWI cases a specialty.
Is the lawyer you are about to hire aware of how to keep the breath test out of evidence?
Is he familiar with the Missouri Department of Health breath testing regulations?
Does he or she have any advanced training on the problems of breath testing and with the BAC Datamaster and the Intoxilyzer 5000 breath testing machines used by the State of Missouri is Missouri DWI cases?
Mr. Guilfoil is a certified operator of the Intoxilyzer 5000 breath testing machine used by the State of Missouri in Missouri DWI cases. He has attended numerous, national seminars on breath testing, and on both of the primary breath testing devices used in the State of Missouri: the Intoxilyzer 5000 and the BAC Datamaster. He has also attended seminars on blood testing for that especially difficult Missouri DUI / DWI case. He has attended the National College of DUI Defense 2003 and 2006 summer sessions conducted at Harvard University, and is the 2006 Missouri State Delegate to the National College of DUI Defense.
Is this attorney charging a rate for his or her services that would indicate they will really properly handle my case or are they charging a fee that is little more than what I would pay to handle a speeding ticket?
At a recent national DUI / DWI seminar I attended, I heard a humorous icebreaker in the beginning of someone's lecture that was funny, but very true: “Good lawyers aren't cheap, and cheap lawyers aren't good.”
It really is true that you often get what you pay for. If someone tells you that the can spend less than 20-30 hours of work on typical Missouri DUI / DWI cases, and consistently win them, they are lying to you.
Many times, these cases, if handled properly, will result in 75+ hours of work, and the more complicated or cutting edge the defenses are you are trying to raise, with expert witnesses, research, etc. the more time consuming and costly it gets.
If you are considering hiring someone who is going to charge you a nominal amount, you need to first look very carefully at the contract to see what that fee includes. It likely is for nothing more than appearing one time on your behalf (often, once on the criminal side of your Missouri DUI / DWI case alone, and not at all for the civil portion of your case) and pleading you guilty on whatever terms you can get on that one appearance.
It often will also not include any challenge to your driver's license being suspended in the civil portion of your case.
If someone is proposing to charge you a nominal amount who claims to be doing a big investigation with a potential trial being included in this fee, you should be very, very careful.
Ask them if you can contact any previous clients who had their criminal case tried at all (much less won) for this amount, or a client who had the civil portion of their case handled for this fee (and hopefully at least one person who had their civil case also won).
Any “good” DUI / DWI attorney will charge a fair fee representative of the time and resources it takes to effectively attempt to challenge this type of case.
The three of four best Kansas City DUI / DWI lawyers I know can point to numerous past clients who would be happy to talk about both criminal and civil wins in Missouri DUI / DWI cases that were obtained for the original, up front fee, without hidden or tack-on costs being accrued later.
Another trick that I am seeing with lawyers who charge too little to handle these cases is that they will charge a rate reasonable only for a criminal plea, but will send in the paperwork for the civil administrative hearing challenging the driver's license suspension, so the client thinks that they are going to get a hearing trying to keep their license for an unreasonably low rate.
Then, a few days before the administrative hearing, the lawyer faxes in a piece of paper to Missouri Director of Revenue, "submitting the case on the record." This means they are essentially "rolling over," and that your license will be suspended without a fight, and without any witnesses being subpoenaed or actually having a meaningful hearing.
Ask the lawyer you are interviewing if they intend to subpoena the officer and bring a court reporter and conduct an actual hearing, or if they are just filing the request for hearing with the intent of just pulling the plug at the last minute by "submitting on the record" without a real fight.
You will find that those lawyers charging unreasonably low fees will not conduct an actual civil hearing with witnesses subpoenaed for their stated rate, but are just delaying when your driver's license suspension will occur, rather than actually trying to fight it.
Is the DUI / DWI lawyer going to handle my case from beginning to end or hand me off to someone else?
Many “dumptruck” attorneys (those that plead everyone guilty) often imply a guaranteed result based on who they are or who they know or knew when they used to be a prosecutor, or used to be a police officer, or from playing golf together, etc.. Buyer beware!
Anyone who guarantees a result, actual or implied, is walking on thin ice. I will guarantee that our office will put as much time into your case as anyone you hire, but that's it. Each case is different. Promising more is malpractice, and unethical.
As mentioned, some cases with awful facts get thrown out for unusual reasons, and others, seemingly innocuous on their face, with relatively innocent facts, result in a loss if the cop is thorough, doesn't skip steps, administers the standardized field sobriety tests correctly, driver admits to drinking 8 beers, etc.
A common ploy that you should also look for carefully (and this happens even in some offices of attorneys with excellent DUI / DWI reputations of handling these cases) is the “handoff" or the "bait-and-switch."
Many firms have what is called a “rainmaker.” In other words, this person is the salesman for the lawfirm, the “closer,” who makes the clients (and their money) “rain” for the firm.
This person almost always has all the requisite experience, specialized training, certifications, etc. to effectively handle a Missouri DUI / DWI case. They have a track record, and clients usually freely sign up in bulk based on that track record.
The problem often is this type of attorney cannot bring himself to turn away clients when there is money on the table when he is already too overloaded with work and cases.
Rather than only sign up as many clients as can be effectively represented, or raising his fee to a select few clients so that the quality of his work does not diminish, this attorney instead takes on as many clients as will come based on his past good work and reputation, and the better his past work, the more of them will come, despite there not being enough hours in the day to effectively represent them as he had in the past when he got good results when there were far fewer clients.
To handle the new load, this attorney will either employ one or several beginning associates, who may or may not have any experience in handling these cases, or outside attorneys to handle the extra caseload because he is so overloaded by taking too many clients that he gets them to do it.
In one particular recent case, I was shocked. A client came in our office with two DWIs pending at the same time in a small county in the country that I had not been to before. He had hired a firm there with a past reputation for at least handling criminal cases.
Once he signed up, he was immediately handed off to a junior associate who was totally unqualified to handle either of his pending cases. Neither case was a first offense walk through, and both carried severe penalties.
He had one prior offense, and DWI numbers two and three were pending. When he hired the firm for the first DWI, they charged him $500.00 without a written contract, said, "don't worry, we will take care of it."
They at least requested an administrative hearing for him putting off at least temporarily having his driver's license suspended, but didn't conduct an actual hearing and just "submitted on the record."
Turns out the filing of the administrative hearing was just a mere formality, as the lawyer did not subpoena anyone to come to the hearing and did not even bother to show up herself. She just faxed a letter to the Missouri Department of Revenue saying she "submitted his case on the record," thereby immediately suspending his license without the client even knowing it until after the fact.
The he gets the other DWI, sends it to her before knowing that his license was already suspended from the previous case she rolled over on, and she tells him that she will handle that case for him also.
She doesn't draw up a new contract for the new case, doesn't charge him any more money, or even send him a letter saying what she is doing or not doing on either case.
Problem is he refused to blow in his second case, and there are different rules for requesting a hearing when you blow and when you refuse.
She did not timely file a lawsuit in the county of arrest challenging his driver's license in the second case, causing his license to be further suspended until the end of time, without a fight, prior to talking to us.
Worst of all, she did not even tell him what had happened. When he first called us, he was seeking our help in challenging his driver's license being suspended, and he was driving around revoked (facing jail for it) not even knowing what had happened.
On top of all of this, he has a commercial driver's license (CDL) and drives for a living, and the associate this firm dumped the case on hadn't even bothered to ask or didn't even know to ask.
While he might find some comfort in suing her for malpractice, it isn't going to undo her mistake and let him have a hearing trying to challenge his license being suspended until the end of time.
In short, you must be very careful in determining who is actually going to handle your case.
This is not to say that many offices which handle Missouri DWI cases do not effectively utilize associates, or several attorneys in one firm.
Many firms effectively market several different attorneys at one time to a client in an interview, with the various fees for the attorney being determined by their experience.
Particularly with pretrial matters, associates are frequently utilized.
When this process is in the open, it is professional, ethical, and good for the client where it gives them choices. You might not be able to afford the best lawyer in the firm, but you might be able to afford one who can handle your case without committing malpractice.
However, where an attorney “sells” a client on his own past good work, (and charges the client more than most attorneys based on that reputation), the client has a reasonable expectation that lawyer will handle the client's case.
Unfortunately, it is very common for this type of rainmaker lawyer to hand the case on to someone else, not work the case, and move on to the next client “rainmaking” session.
It is vital to clarify what you are agreeing to and what you are paying for. Determine if the price is reasonable based on what you are actually getting. If you are paying less to have an associate represent you, that is fine if it is disclosed upfront, but you may not get what you think you are if the agreement is not in writing.
Get the lawyer to spell out in the interview the terms where there is an associate in the office to avoid the undisclosed bait-and-switch:
- Under the terms of the contract, can the associate be utilized in place of the attorney who “sold” the client?
- If so, will the associate be utilized for pre-trial matters only, or is the associate allowed to try the case under the price and terms of the contract?
- Are you being interview by the attorney who is representing you, or by a non-attorney or point person?
Non-disclosed Referral Agreement
A similar trick is to not disclose referral agreements. Many firms take on numerous cases, and then refer the case out to someone else to handle. Many take a kickback for the referral, even though the ethics rules in the States of Kansas and Missouri prohibit attorney fee referral kickbacks unless a portion of the case is actually worked by the attorney referring out the case. However, referral agreements are OK as long as disclosed and you get what you paid for. Read your contract!
Referring cases out to other lawyers is a good idea in some instances, and is not always unethical. Our office takes cases from all over the State of Missouri from the internet. If someone seeks our help who is out of our primary practice area, we are happy to send them along to someone qualified to help them where their case is pending. We can tell you who the best DWI lawyers are throughout Missouri if we do not go there.
The Internet and National Clearinghouses of Generic Lawyer Lists
Another twist on this theme came on with the advent of the internet. Almost everyday, I receive in my email inbox at least 10 messages from non-attorney internet marketing people, asking me to pay a fee (usually $250.00 - $1000.00 a month) to list my name on their generic list of attorneys-- online yellow pages.
More and more of these pop up every day. The same rules apply here when sorting out the good websites from the generic:
- Does it appear the website will let any attorney with a heartbeat and a credit card put a listing up regardless of their qualifications under any subject matter heading they choose? Or is the webring exclusive, based on shown expertise or training, listing only the best of the best from each state?
- How many lawyers are listed under the DUI / DWI heading for each state? Are there one or a couple of specialists handpicked for the entire state? Or are there dozens of people that have just signed up, sight unseen with a credit card?
- Is the webring exclusive to the subject of DWI? Many of the biggest networks have separate subject headings for all areas of the law, and if you click on all the various topics, you will see the same lawyer listed under numerous areas of the law besides DWI, because they have been paid to be listed everywhere.
- A good way to measure whether the attorney has been asked to be a member based on expertise in DWI or whether anyone can just pay to be there is to find the link of the internet directory regarding how to contact the site, or how attorneys can “sign up.” If someone can just sign up, sight unseen by paying, without any need for showing their qualifications first, the list is not a list of anything other than people who chose to pay to be there.
- Does the site prominently feature attorneys with little experience or specialized training?
Many of the directories on the internet are the best sources for finding an attorney and for DUI / DWI information. Many of them have the most prominent lawyers in DUI in the world: such as Bubba Head in Atlanta, Lawrence Taylor in California, Reese Joye in South Carolina-- the true heavyweights.
Look for internet directories that focus on DUI / DWI alone, and that have only one or two DWI specialists for each state, and who have members who have been hand-selected or asked to exclusively join based on their training and experience.
This webring and Drunk Driving Defense.com and DUI-DWI.COM are the some of the most prominent directories on the internet. The directories that let anyone in who is willing to pay are not exclusive and not near the quality of a resource.
Another serious mistake to avoid is submitting your name to a generic webpage which doesn't even list the names of the attorney of lawfirm that the page is for.
Hundreds of DWI lawyer clearinghouses are set up for every city and county in every state, which just indicate that some lawyer will call you back if you fill out the form.
This is probably a marketing group that will attempt to sell the lead to any dumptruck attorney that will buy it. Online questionnaires are great if you are on a lawyer's site with an actual name and an actual face. If you are just looking at some generic discussion of Missouri DWI law and it is asking you to contact them without even saying who the attorney is, you are probably submitting your name to a marketing company in India. See if there is a phone number listed where you can call the actual lawyer. If not, you are submitting to an advertising agency, or God knows who else.
A good Missouri DUI / DWI attorney will not attempt to force you into a plea like it is a foregone conclusion, and will see your case through from the beginning until the end without handing you off to someone else.
Should I Hire an Ex-Prosecutor or An Ex-Police Officer to Handle My Missouri DWI?
This is one of the most common questions asked in our office. There are certainly some excellent attorneys now in private practice who originally cut their teeth as prosecutors. There are also numerous lawyers who are ex-prosecutors or current prosecutors who have never tried a single case as a defense attorney and plead everyone guilty of DWI who comes in their door.
Being a prosecutor can be a good thing in terms of getting experience trying cases, but if being an ex or current prosecutor is overemphasized in the interview as the be-all-end-all, you should look more closely using the criteria described throughout this page.
Many ex-prosecutors will over emphasize the convictions they obtained while a prosecutor as a selling point: “I was 50-0—all convictions” like it's a boxing scorecard.
You can take this for what it is worth.
Ask them how many cases they have taken to trial and won as defense attorneys, and see if they carry the same bravado.
Better yet, ask them how many civil driver's license administrative hearings they have won, in the last year, or ever for that matter, and watch many of them wilt.
Some ex-prosecutors, somewhere in this country, may have an equally impressive winning streak as defense attorneys as they did as prosecutors, but if you meet one, you tell me, and I will buy you lunch.
You see, with all due respect, it is not especially hard at all to get a conviction as a prosecutor but it is incredibly difficult to win a Missouri DUI / DWI case as a defense attorney.
DUI / DWI is a politically charged crime. Missouri DWI laws are always being revamped in favor of conviction, raising the penalties, raising the fines, taking out things that defense attorneys use to beat DWI cases.
Also, every couple of years, NHTSA (the National Highway Traffic Safety Administration) gets together and determines what language in the Standardized Field Sobriety Testing Manual defense attorneys are using to win by challenging police officers on improperly administered field sobriety tests in DWI cases, and then they just take that language out. God forbid we stick to the rules and have the police just figure out how to properly administer, interpret and score the SFSTs....
Often times, prosecutors in Missouri DWI cases read the elements for the crime of DWI directly off of a cheat sheet at trial, the same rote list each time, and still get the conviction because the cards for the game are so stacked in their favor.
Literally, my nine-year old daughter could get a conviction in some cases, because nothing has to be done to get it other than to read.
However, Mr. or Mrs. “I was 50-0 as a prosecutor” might be hard-pressed to point to even one DUI / DWI win once they switched over to the defense of these cases.
I also firmly believe that familiarity may or may not be in your best interests. You decide.
For the ex-prosecutors, do you want someone to represent you in your Missouri DWI case who would be attempting to put you in jail if you had just been arrested a few years earlier?
Or even worse in my humble opinion, do you want to hire someone who is currently a part-time defense attorney, and also a part-time prosecutor, where he might be representing you wearing one hat while simultaneously trying to put someone you know in jail a different day of the week for DWI wearing the other other hat?
I wouldn't. But that is for you to decide.
This same reasoning applies to ex-police officers (although I do know some ex-police officers or ex-DEA who are excellent with fantastic credentials such as Travis Noble in St. Louis, or Mike Selby in Columbia).
An ex-cop may or may not be a good choice.
Many of the police officers I come across in my cases administer the same three standardized field sobriety tests to drivers the wrong way over and over again for years.
You can put them on the stand, case after case, hearing after hearing, showing them making the same mistakes on videotape time and time again, and they will continue to do it the wrong way until they retire or until they are fired or "reassigned." You would think they might figure it out after numerous trials, but many of them do not-ever.
Other officers I encounter (a few) in Missouri DWI cases are meticulous and should be admired for taking their job seriously. These rare officers seem to appreciate the gravity of the situation, do not cut corners, and realize that it is unfair to characterize everyone who has a couple of drinks and then drives home as impaired.
When a person who is under the legal limit but being investigated for DWI has their freedom and their driver's license at stake, the difference between the cop out to arrest everyone in sight who has been drinking and the officer who conducts a fair and reasonable investigation doing his job is immeasurable. There are a few of these good officers I encounter, and I applaud them.
The question is, which type of ex-officer is the lawyer you are interviewing? Your ex-police officer might have been one of those guys that did it wrong for years or he might be fine.
Ask him if he knows how the standardized field sobriety tests are to be given. Any DUI / DWI attorney worth anything (especially an ex-cop who would have needed the materials also for their previous job) should be able to pull the NHTSA SFST manuals on standardized field sobriety testing off the shelf for reference. If he does not, you should be scared.
If he does have it, does he know it?
Whether you hire a lawyer who is an ex-police officer depends on a lot more than just the fact he used to be law enforcement. As with prosecutors, if they over rely on this fact to close you, look closer.
If they have specialized experience and training as defense counsel in addition to their law enforcement background, they might be fine.
I would again point out that here too, familiarity may or may not be in your best interests. You decide. Do you want someone to represent you at another time might have been the person arresting you they were still a cop?
Questions to Consider Asking the Lawyer You Are Interviewing for Your Missouri DUI / DWI or Other Drunk Driving Case
Are you a member of The National College for DUI Defense? If so, how many sessions have you attended?
Are you a member of American Association of DUI Trial Lawyers?
Are you a member of the Missouri Society of Criminal Justice?
Are you certified as a student examiner in the Administration of Standardized Field Sobriety Tests?
Are you certified as an Instructor in the Administration of Standardized Field Sobriety Tests?
Are you certified in the protocols for a Drug Recognition Expert (DRE) to fight arrests for driving while intoxicated by illegal or prescription drugs?
Are you certified on the Intoxilyzer 5000 breath testing machine?
Are you certified on the BAC Datamaster breath testing machine?
Have you attended specialized courses on breath testing? If so, which ones?
Have you taken certification courses on blood testing?
Are you a member of National DUI lawyer listserves giving you access to the opinions of the most qualified DUI attorneys in the Country?
Do you have successful trial experience in Missouri DWI?
Have you won civil license suspension hearings? If so how many in your lifetime? How many have you won in the last year?
Do you limit your law practice to DWI only?
If not, what percent of your practice is devoted to DWI?
Have you ever been quoted by the press regarding Missouri DWI issues?
Have you ever taught CLE continuing legal education courses on Missouri DWI to other lawyers?
Have you ever taught Missouri DWI courses to law enforcement?
Do you have published articles on the topic of DWI?
Do you limit the number of cases you take each year so you can effectively represent your clients to trial?
How many case files do you currently have open in your office?
Do you utilize expert witnesses in your Missouri DWI cases?
Do you have an expert witness you use for standardized field sobriety testing in Missouri DWI cases? Who?
Do you have an expert witness you use for breath testing issues in Missouri DWI cases? Who?
When and where did you win your last Missouri DWI case?
When is your next Missouri DWI trial?
How many Missouri CLE (Continuing Legal Education) credit hours have you had in Missouri in the last year? In the last three years?
Have you ever taken courses of any kind on DWI outside of Missouri? How many hours of training in the last three years? In the last year?
Do you utilize a written contract?
Does the contract specify what fee I will pay and what that fee includes?
Am I being represented only in the criminal portion of the case for that fee, or will I also be represented in the civil driver’s license suspension portion of my case for that fee? Is this spelled out in the contract?
If I am being represented in the civil portion of my case, will you actually have a real civil license suspension hearing where you subpoena witnesses and bring a court reporter to type down what the witnesses say, or can you just submit on the record and not actually have the hearing for the fee quoted in the contract?
If it is determined that it would be better in my case to submit on the record in my civil case and not bring in witnesses because of some defect in the records, will I be told of this in advance of not bringing the witnesses?
What other types of law do you practice besides DWI?
Are all possible attorney fees spelled out in the contract?
If I plead guilty is it one rate with a separate criminal trial retainer, and a separate fee for the civil license suspension hearing? Or is it all one rate that is due upfront regardless of what happens in my case?
In addition to the quoted attorney fees in the representation contract, will I be charged extra for out of pocket expenses separate from the quoted attorney fee?
If costs are separate from the attorney fee, have those possible costs been spelled out for me prior to hiring you and are they listed in writing in the contract?
If my Missouri DWI case requires an expert witness on standardized field sobriety testing to testify on my behalf, who will it be and how much will they cost?
If my Missouri DWI case requires an expert witness on breath testing to testify on my behalf, who will it be and how much will they cost?
If my Missouri DWI case requires an expert witness on blood testing to testify on my behalf, who will it be and how much will they cost?
Does your office utilize expert witness affidavits when submitting my case in administrative hearings vs. the Missouri Director of Revenue? If so, who will you use?
Will you request a videotape and file a motion to preserve evidence in my Missouri DWI case?
Will you request all the maintenance reports from the Missouri Department of Health for the breath testing machine I was tested on for the last year prior to arrest to determine if the machine was functioning properly when I blew into it?
If you will request the maintenance reports, who will you have evaluate the data?
General DWI Questions to Ask:
What are the criminal penalties for a first offense DWI?
What are the civil penalties for a first offense DWI where I blew over the legal limit?
What are the civil penalties for a first offense DWI where I refused to take the breath test?
What are the criminal penalties for a second offense DWI?
What are the civil penalties for a second offense DWI where I blew over the legal limit?
What are the civil penalties for a first second DWI where I refused to take the breath test?
What are the criminal penalties for a third offense DWI?
What are the civil penalties for a third offense DWI where I blew over the legal limit?
What are the civil penalties for a third offense DWI where I refused to take the breath test?
What are the criminal penalties for a fourth offense DWI?
What are the civil penalties for a fourth offense DWI where I blew over the legal limit?
What are the civil penalties for a fourth offense DWI where I refused to take the breath test?
What are the criminal penalties for a fifth or subsequent offense DWI?
What are the civil penalties for a fifth or subsequent offense DWI where I blew over the legal limit?
What are the civil penalties for a fifth or subsequent offense DWI where I refused to take the breath test?
When can I get a limited driving privilege?
When am I subject to a five year denial of my driving privilege?
When am I subject to a ten-year denial of my driving privilege?
I have an out of state license. Can I keep driving outside of Missouri?
When might my out of state license be suspended if I am suspended in Missouri for DWI?
When can I expunge a DWI conviction in Missouri?
Can I drive to work or school while suspended?
How do I get a limited driving privilege?
What is the difference between a limited driving privilege and a restricted driving privilege?
What is the penalty in my civil case if I have refused two or more times lifetime?
What is the penalty in my civil case if I have ever been convicted of a felony involving a car?
I have a commercial driver's license (CDL). Have you ever won or reduced to a non-DWI disposition the criminal portion of a DWI case involving a CDL where the client did not get his CDL suspended for the criminal charge?
Would You Be Willing to Let Me Call the Prior CDL Client to Confirm?
I have a commercial driver's license (CDL). Have you ever won a civil license suspension hearing in a DWI case involving a CDL where the client did not get his CDL suspended for allegedly blowing above the legal limit?
Standardized Field Sobriety Testing
What are the three standardized field sobriety tests?
How long should the HGN Horizontal Gaze Nystagmus eye test take if the officer is doing it right?
How many passes in front of my eyes is the officer supposed to move his finger to give a valid HGN Horizontal Gaze Nystagmus eye test?
How many clues total is the officer looking for when conducting the HGN Horizontal Gaze Nystagmus eye test?
How many clues in my eyes do I have to show on the HGN Horizontal Gaze Nystagmus eye test for me to not pass?
What are the names of the clues?
How is the officer supposed to pretest me for the HGN Horizontal Gaze Nystagmus eye test?
What two things is the officer looking for when he pretests me for the HGN Horizontal Gaze Nystagmus eye test?
For the first clue on the HGN Horizontal Gaze Nystagmus eye test, how fast is the officer supposed to move his finger in front of my eyes?
For the first clue on the HGN Horizontal Gaze Nystagmus eye test, how many passes of his finger is the officer supposed to make in front of my eyes?
For the second clue on the HGN Horizontal Gaze Nystagmus eye test, how fast is the officer supposed to move his finger in front of my eyes?
For the second clue on the HGN Horizontal Gaze Nystagmus eye test, how many passes of his finger is the officer supposed to make in front of my eyes?
For the third clue on the HGN Horizontal Gaze Nystagmus eye test, how fast is the officer supposed to move his finger in front of my eyes?
For the third clue on the HGN Horizontal Gaze Nystagmus eye test, how many passes of his finger is the officer supposed to make in front of my eyes?
Do the flashing lights affect the HGN Horizontal Gaze Nystagmus eye test? How?
What type of conditions might I have which would make me ineligible for the HGN Horizontal Gaze Nystagmus eye test?
How many hours of training on the HGN Horizontal Gaze Nystagmus eye test must the arresting officer have for the test to be admissible into evidence against me?
What is the officer looking for when he is testing my eyes during the HGN Horizontal Gaze Nystagmus eye test?
What is nystagmus?
How far away from my face is the officer supposed to hold his finger when giving me the HGN Horizontal Gaze Nystagmus eye test?
For the walk and turn test, what types of people are not supposed to have to take this test?
What age group is precluded from taking the test?
How much is too heavy according to NHTSA to take the walk and turn test?
What kind of shoes affect the walk and turn test?
Does the walk and turn test require an actual, straight line for me to walk?
How many clues are there for the walk and turn test?
How many must I show for the officer to say I did not pass the walk and turn test?
What do I have to do for the officer to say that I did not properly maintain the instructions stance for the walk and turn test?
What do I have to do for the officer to say that I started performing the test before the instructions were finished for the walk and turn test?
What do I have to do for the officer to say that I stopped while walking for the walk and turn test?
What if I was just walking slowly?
What do I have to do for the officer to say that I did not touch heel to toe for the walk and turn test?
Can he mark this clue against me if I left a one inch gap between my feet on one step?
What do I have to do for the officer to say that I stepped off of the line for the walk and turn test?
What do I have to do for the officer to say that I used my arms for balance for the walk and turn test?
The officer said I made an improper turn for the walk and turn test. What do I have to do to make a proper turn and not have this clue marked against me?
He also said I took the incorrect number of steps for the walk and turn test. How many am I supposed to take?
The officer marked down for the walk and turn test that I was unable to complete the test. When is he allowed to mark this down against me?
What kind of surface area must the walk and turn test be conducted on?
Would my high-heeled shoes have affected the test?
Are there any really important instructions for the one leg stand test that if the officer forgot to give me I might be able to suppress the test? What are they?
For the one leg stand test, he told me to count to 30 with one leg off of the ground, and that he would stop the test when I got to 30. I was able to count clear to 30. Does this matter?
The officer said I used my arms for balance during the one leg stand test. But the video show that I only raised my arms a couple of inches from my sides. Does this matter?
The officer said I could not complete the one leg stand test. When is he allowed to mark against me that I could not complete the test?
Can I have my license suspended for refusing standardized field sobriety tests?
Are you certified on the breath testing machine used against me in my case?
Do you have specialized training on breath testing?
Have you ever attended an attorney class on breath testing outside of Missouri?
What is the burnoff rate of a 12 ounce can of beer?
I have diabetes. Does it matter? How?
I had an airbag deploy in my face during the accident right before I blew. Does it matter? How?
I have GERD. Does it matter? How?
I am a painter and I was painting in closed quarters all day. Does it matter? How?
I had an open container and was drinking in my car a few minutes before the officer asked me to blow into a portable breath test in his car. Does it matter? How?
My breath testing ticket from the machine has an error message of invalid sample. Does it matter? How? What does the breath testing machines operator manual say causes an invalid sample?
My breath testing ticket from the machine has an error message of system won’t zero. Does it matter? How?
My breath testing ticket from the machine has an error message of sample control override. Does it matter? How? What is a sample control override?
I was smoking while waiting immediately prior to blowing. My breath testing ticket from the machine has an error message of invalid sample. Does it matter? How?
I was given a blood test. Do you send the sample swabs off for testing they used to wipe down my arm prior to blood testing?
Do you request from the Missouri Department of Health all of the maintenance and repair records for the breath testing machine I blew into for the year prior to the date of my arrest to look for problems with the machine?
Do you know what to look for on the machine’s maintenance reports when you have them to suppress my breath test? What?
How long does the portable breath testing manual say the officer is supposed to wait after first observing me prior to giving me a portable breath test?
How often does the Missouri Department of Health require maintenance on the breath machines?
What is partition ratio?
What is the partition ratio that the machine is assuming for me when I blow into it?
Is partition ratio the same in all people?
How do I get testing to determine my actual partition ratio? Do you know who to send me to so I can test my actual partition ratio?
I blew a 0.86 BAC an hour after I was stopped. Can I win? How? What defense should I raise?