Patrick J. Silva Professional law Corporation

The Top 10 DUI Mistakes (and How To Avoid Them)

The following is a list of TOP TEN DUI MISTAKES commonly made by the citizen accused of drunk driving while selecting an attorney, and also by those attorneys who may be less experienced with this increasingly expanding niche of criminal law. If you find yourself in the unfortunate position of having been accused of a DUI or other related crime, use this list as a tool to help select the right representation for your case. Remember, if you plead guilty you’ll be found guilty 100% of the time. But when you hire a properly trained, knowledgeable and experienced attorney to represent you at trial, your chances of obtaining an acceptable result increase dramatically.

1. Assume the Case Can’t Be Won

If you talk to an attorney who takes one look at the facts of your case, including a blood alcohol content reading, and immediately begins to talk about pleading guilty, run. Many criminal defense attorneys advertise as “DUI Attorneys,” but buyer beware, most do not have the specific training, knowledge and experience to properly defend your case. Research the lawyer’s qualifications and ask questions relative to his or her training and experience with DUI cases. A DUI conviction can have numerous collateral consequences separate and apart from the associated criminal sanctions. Take your case seriously and hire a knowledgeable and aggressive attorney who will fight for you.

2. Stipulate to the Breath or Blood Alcohol Concentration (BAC)

One common mistake frequently seen among those attorneys without the proper training, knowledge and experience is to simply stipulate (which means to agree that the alleged result is perfectly accurate and beyond question) to the “BAC” and contest the case on some other grounds. No attorney should ever do this. Not only must the government offer a particular BAC reading in order to prove its case beyond a reasonable doubt, it must prove that the results are accurate, precise and reliable. In order to do so, the government must prove that the specimen was collected in an acceptable manner, by individuals who followed all the proper procedures, that it was properly handled at all times up until the moment of analysis, that the analysis was performed by a qualified person on the proper equipment… the list goes on and on and on. With all that said, if your attorney is planning on stipulating to a particular BAC reading, then you’re making the government’s job of obtaining a conviction exponentially easier.

3. Not Visiting the Scene

Ask the attorney if they’re familiar with the area of the stop or accident. If not, ask if they plan on examining the scene for themselves or sending their own private investigator to do so. Examining the scene provides the attorney with the intimate knowledge necessary to confidently question the arresting officer with respect to a wide variety of issues that may be relevant. For example, knowing about the presence of a pothole or other similar obstruction in the road may help explain a swerving vehicle, and could contradict the officer’s presumption that the swerving vehicle was a result of impairment. In addition, photographs and even video of the scene may prove helpful as demonstrative aids to a judge or jury.

4. Failing to File a Pre-Trial Motion

A pre-trial motion should be filed and argued in nearly every case, especially if no preliminary hearing was held. Even if the motion is unsuccessful in terms of not achieving the stated goals, i.e. suppression, dismissal, etc., the additional testimony serves to further enhance the record which will be used to limit or impeach the testimony of the officer at trial.

5. Failing to Question the Validity of the Roadside Tests

Hiring an attorney who isn’t familiar with the phases of DUI Detection as it is taught to police through the International Association of Chiefs of Police (IACP) and the National Highway Traffic Safety Administration (NHTSA) is akin to playing a game without knowing the rules and your opponent does. Between the three (3) Standardized Field Sobriety Tests (SFSTs) and the administration of a Preliminary Breath Test (PBT) device, the arresting officer almost always deviates from protocol at some point during the investigation. Hiring an attorney without the knowledge of these processes will allow mistakes to go unnoticed, and may result in a conviction without the proper evidence or basis to support it. The SFSTs and PBT are all part of one phase out of three concerning DUI detection, certainly there may be other issues along the way that warrant proper examination as well, if your attorney isn’t familiar with them, they’ll fall by the wayside.

6. Trying to Make the Officer Sound Like a Liar

Illustrating to the judge or jury that the Officer may have been mistaken in this particular instance is a much better way to highlight inconsistencies or uncertainties contained within his or her testimony. Rather than attempting to convince a judge or jury that an individual Officer is a habitual liar and never tells the truth, it is a much more successful approach to point out these inconsistencies in a manner that allows the finder of fact to see that the Officer is wrong this time, but isn’t necessarily being intentionally deceitful.

7. Putting the Client on the Stand

Having the accused testify is rarely a good idea. Prior to the Bill of Rights, in the Colonies which later became the United States, trials were prosecuted by King’s counsel. There was no Fifth Amendment right to not testify. The accused was in a horrible spot. Either take the stand to testify and be called a liar simply because you are the accused and therefore guilty or not take the stand and have King’s counsel say that in not testifying you have something to hide and therefore must be guilty. It was an impossible situation. A true Catch 22. So, our wise Forefathers came up with the Fifth Amendment to solve this impossible situation. We should use this gift. First off, the accused doesn’t have to testify. Why do it? You have no burden. Because of the presumption of innocence and the high burden on the government to actually PROVE its case beyond a reasonable doubt, a trial is not a judgment of the accused motorist and/or a valuation of whether our side, the defense side, is right or wrong; instead, it is always an examination of the Government’s accusations. Unless it is absolutely necessary to establish some critical fact, to remain seated next to counsel and allow that person to do the talking on your behalf is the only wise decision so as to avoid the King’s counsel dilemma described above.

8. Failing to Consult a Specialist

In this day and age advertising is essential to any successful business. In no other area of law can the use of three simple letters (DUI) lead to such riches for attorneys and such heartache and disaster for those accused of a crime. No other place is there such room for abuse of those in desperate situations who are looking for hope. As mentioned before, many criminal defense attorneys advertise being a “DUI” lawyer. Very, very few are. Not only is the law complex, the science and technology relating to its application is extremely advanced as well. You have to have a near PhD level of understanding of a broad area of science before you can properly and ethically pick up a DUI case. It takes an enormous amount of training, dedication and experience to properly and successfully defend what appears to be a “garden variety” DUI case. You wouldn’t go to a general family doctor if you were suffering from a complex illness such as cancer, you’d find a specialist, someone intimately familiar with cancer and perhaps even specifically the type of cancer you’re currently suffering from. The same is true with the law. DUI defense has become a specialty, choose your attorney accordingly.

9. Not Using Expert Witnesses

Using the services of an expert witness can be, and oftentimes is, the difference between winning and losing at trial. It is that simple. There is no other way around it. Sure, a few cases can be, and often are, won without the use of an expert. But again, when dealing with all the intricacies of the reliability of blood or breath testing results, expert testimony routinely makes all the difference in the world. Talk to an attorney who regularly utilizes the services of experts and ask them how and why they’re an invaluable part of the equation.

10. Waiving a Hearing

This is something you absolutely cannot afford to do if you plan on fully contesting the charges against you. Just like if you plead guilty, you will be found guilty 100% of the time. If you waive a preliminary hearing and not contest the charges, then you will always go forward to trial. This first and best opportunity to cross-examine the Officer and any other parties involved is at this crucial first step. Having the hearing helps establish the record early on in the proceedings and proves to be an immensely valuable “discovery” tool. The credit to the above list goes to Justin McShane.


1. Write Down Everything

DUI cases are won and lost with their details. So write down everything you remember from your DUI stop, no matter how insignificant. Your memory will fade over time, and important details that could help win your case could be lost. Here are some questions to jog your memory:

When and where were you stopped?

What reason did the officer give for your stop?

Was a breath test administered? If so, what did the device look like?

What did you tell the officer about what you had to eat or drink?

What sort of tests did they do? (Eye tracking, walk and turn, one leg stand?)

Take some time to write down everything you can remember from the stop. Just don’t share it with anyone but your attorney. You’ll thank yourself later.