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Judging Influence

Mar 18, 2008
Between 1910, with the passage of America's first drunk-driving law, and 1936 (the first year of per se DUI), the limits of DUI were largely set by medical experts...and judges. That's why judges have had the reins pulled on them since the 1970's, and their authority to hand out widely disparate sentencing varies so widely. Additionally, the sense of political pressure on judges in state systems to "get drunks" off the road has been enormous. This has had the result of changing the tactics of DUI lawyers.

Constitutional Review: In reality, the history of working as a specialist in DUI lawyering has also been a fairly recent process. This is because during the 1930's, many jurisdictions in Depression (and Prohibition) era America simply did not pay attention to driving under the influence. But only this year, a Virginia state county trial judge has done the unthinkable...striking down the constitutionality of the Commonwealth's DUI statute. Virginia, in order to receive federal funds, has toed the line with every other state in accepting a common measurement of 0.08% blood alcohol content (BAC). Though other DUI lawyers have attempted to have the statute declared unconstitutional, there has been no dent in the .08 facade. Until Virginia, where Judge O'Flaherty has accepted the premise that not everyone with a BAC is similarly impaired. The judge essentially accepted the defense of attorneys regarding the level of proof required to have a DUI conviction. This has had the effect of moving at least one Virginia county back to pre-1936 rules against DUI. What most people don't know is that there are another set of judges who may review DUI cases: administrative law judges. Not all DUI lawyers pay enough attention to the administrative rules of DUI.

Administrative Rules: Once someone is accused of DUI, there's a need for an experienced DUI lawyer. In looking for the best, clients need to be sure their right to a diver's license is protected, too. This often means DUI lawyers will be seeking a hearing before an administrative law judge...the place where every state agency has a vulnerability. On the other hand, the rules of evidence are more relaxed in administrative hearings, and a DUI lawyer may lose before an administrative judge, and still win a DUI case in a trial court. Often the difference is not the judge, but the creativity of the DUI lawyer.

DUI Creativity: Obviously, this attack on BAC is a minority position in Virginia, and perhaps no more than a national blip. Still, for the short term, more DUI lawyers will be testing the waters of constitutionality. The prosecutors in Fairfax County have argued vociferously against the ruling. At one point, the argument grew so heated that the judge threatened to free the accused, and jail the prosecutor.

On occasion, clients accused of DUI are absolutely correct that knowing the local system makes a difference in sentencing. But it's more important to know the ways to attack the BAC findings. In California, for example, a driver chooses which test can be used: breath, urine, or blood. No one of these methods is safe from attack by a knowledgeable and experienced DUI lawyer. In any given case, it's not the local system that governs the outcome. So be careful of anecdotal recommendations that a DUI attorney "knows the judge." In every way, the history of driving under the influence has been shaped by social opinions. But when it comes to selecting the best DUI lawyer, an attorney's more personal history is more important.
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