Medical Malpractice

Driving under the influence of alcohol, or "DUI" as it is usually called, is the most commonly committed crime in the United States. Yet it is almost always committed by a noncriminal - that is, by an otherwise respectable citizen who has never been in trouble with the law. Consequently, representation of the DUI defendant often is attempted by attorneys not versed in drunk driving laws. Typically, the defendant's business or family lawyer will undertake to represent him "as a favor". Drunk driving, the lawyer tells himself, is merely a glorified traffic offense. Certainly it is not as serious or complex as a "real" crime, and therefore cannot call for any particular expertise.

This is invariably a tragic mistake. Any lawyer representing a client charged with DUI should be aware of certain preliminary facts.

Though the most common of all offenses, DUI is one of the most complex to understand and defend properly. And the stakes in a DUI case are high - higher in the long run than for most other crimes.

A unique system of legal standards and procedures exists in DUI cases, a system geared to facilitate a conviction. Once the DUI defense attorney is fully aware of these facts, he can proceed to competently represent his client.

Common though DUI is in our courts, it represents one of the most difficult criminal offenses to understand and to litigate. Consider first the nature of other crimes: If the client is charged with petty theft, for example, the issue is usually simply a question of whether he was really seen taking something; if burglary is the charge, perhaps fingerprints represent the most esoteric area involved (if even that); and, in a rape charge, semen analysis may be the only subject requiring any special expertise. In fact, in the majority of crimes, the trial hinges solely on one issue: Did the eyewitnesses see what they testified they saw? Even in circumstantial evidence cases, rarely is anything more exotic than DNA, handwriting analysis or ballistics evidence involved.

Now, consider only superficially what the primary issues are in a DUI case: What was the blood alcohol level in the defendant an hour or so prior to the analysis of a breath sample? To what extent was alcohol chemically affecting the brain tissue of the defendant in such away as to "appreciably" impair his "judgment," his motor reactions, and his coordination?

In other words, the basic issue is to define chemically what was going on in the client's brain and body at the time of arrest. Even brain surgeons do not yet fully understand how the human brain functions. Yet, in an attempt to determine the biochemical conditions within his client's body at a remote moment, the DUI lawyer must be knowledgeable in chemistry, physiology, photochemical and infrared analysis, gas chromatography, etc. And what is meant by "appreciably" impaired? How does one define "judgment"? How is individual tolerance to alcohol measured? What effects do various drugs and medical conditions have on the metabolism of alcohol? Is there any inherent error in breathalyzers? These issues can continue seemingly without end.

Make no mistake: DUI is one of the most complex of all criminal charges, and undertaking to defend a client on such a charge without extensive preparation constitutes nothing short of malpractice.

The second misconception commonly held by both clients and attorneys is that the penalties for drunk driving are only minor. After all, DUI is only a step removed from a traffic citation.

Again, consider the probable consequences if the client were arrested for, say, petty theft, solicitation, or assault. Since it would probably be his first offense, and since he has probably led a sterling life, he will probably not receive jail time. Instead he will be fined perhaps $300 and placed on informal probation for approximately two years. In many jurisdictions, he can come back into court after a probationary period and have the conviction expunged - that is, erased from his record. End result: a few hundred dollars, inconvenience, and attorney's fees. In fact, statistics indicate that the majority of defendants convicted of felonies end up serving no time in custody; the majority are placed on probation, often without even having to pay a fine.

What does the citizen arrested for DUI face? Depending on the jurisdiction, of course, the first offender may be fined $1,500 and also placed on probation, as a beginning. In addition, the court and/or DMV may take his driver's license, a license that may be critical to operating his business or performing his job. His car maybe impounded or he may be required to have ignition "interlocks" placed in it. He will have to attend special DUI schools, occasionally for a "fee" of hundreds of dollars. According to one somewhat dated study, a convicted first offender's average cost for bail, a DUI defense attorney, treatment programs, and fines exceeds $5,000 assuming no accident. Auto Club News (Southern California), October-November 1989. That figure is much higher today. And he may well serve time in jail; many jurisdictions now impose jail sentences for first offenders. On his second conviction he will almost certainly spend time in custody. This is not time served by a hardened con but by a terrified citizen totally unfamiliar with the callous penal system.

Already the person charged with DUI has suffered more punishment than the majority of convicted felons do. But there is more: A convicted defendant will end up paying thousands of dollars over the next few years in increased auto insurance premiums. He is required by law to carry automobile insurance, but he is now a convicted drunk driver who falls into a high risk category; his premiums will be far higher than those of a bank robber or murderer. Further, the client may be suffering from alcoholism. In effect, he may be criminally prosecuted and punished for having what is now recognized to be a medical (and possibly genetic) condition.