Interviewer: So, it does seem as if the tests are biased. This is more of a general question, but for DWIs specifically, how would you compare trying to defend yourself versus going to Legal Aid or a public defender or hiring a private attorney? Which is the better option?
Stuart: The real difference is whether it’s a public defender or private attorney it should be somebody who’s done many DWI trials. As we talked about, there is specificity for DWI’s.
DWI Defense Is a Complex Area of the Law
Your legal representation should know how the intoxilizer works. They should know how the instructions are given. They should know whether the PBT was done correctly or the standard field sobriety tests were done correctly. They should know how far the officer is supposed to hold his flashlight in the HGN test and then, once those protocols are followed, whether the officer can articulate them on the stand. Many officers will say, “Yes, I know how to do it but I can’t articulate it.” Well, you know what? You have to articulate it on the stand.
That’s really where the expertise comes in. Also they should be well versed in dealing with the different ramifications that are going to happen with your license or the ramifications of your car. That’s really what you’re asking for in a legal representative. You’re making sure that the person that you hire knows how to do these, has done handled many cases in the town, the county and the state that you’re in and knows how to defend against these if necessary at a trial.
Or, as we talked about before, what is the best plea bargaining option? Usually, somebody who is driving very fast—I gave you an example before—would not want to admit that they were driving fast and would not want that added to a DWI charge. However, in this case, it was in our best interest, and it worked out in our favor to do that.
Is Self-Representation an Option?
Interviewer: Would you ever recommend that people try to defend themselves on a DWI case or no?
In Both Nassau and Suffolk Counties, You Would Not Be Allowed to Represent Yourself at Trial
Stuart: No, and I’m going to say both in Nassau and in Suffolk, probably the judge wouldn’t allow you to unless you went through a very strict line of questioning and could answer knowledgeably and show that you knew what was going on. I am going to use the example that you have just a broken toe. It’s not a big deal; it’s not the whole foot. Are you going to do surgery on your own toe? It really is an expertise, especially when you’re talking about the machine and the officer’s training, and you need somebody who has that expertise.
Drug-Related DWIs Are on the Rise
Interviewer: Do you see a lot of cases due to alcohol or drugs? What’s the mix of cases that you run into nowadays?
Stuart: More alcohol-related cases than drugs, just because of the prevalence of alcohol, but we are seeing a lot of drug cases coming up.
There Is Different Testing to Establish the Presence of Drugs
Interviewer: How different is a drug-related DWI versus an alcohol-related charge?
Stuart: The test for DWI for drugs has to be either a urine test or a blood test. There is no Breathalyzer that can test for the presence of drugs. So there are only two ways that the police can establish you are impaired due to drugs. Normally there are no standards for plea-bargaining options for drug-related cases. It is up to the prosecutor’s discretion, and usually they won’t plea bargain unless you give them the reasons to do so.
Prosecutors Are Less Likely to Offer Plea Bargains on Drug-Related DWI Charges
What we usually do is we give them a pre-plea packet of all the reasons to offer a plea bargain and what would happen. The indicator test is slightly more accurate for drugs than it is for alcohol. This is because it’s using your blood or your urine and not your mouth, but it also has to be administered correctly.
We’ve had tests just here in Nassau County where the lab had a problem. The person who was administering the tests had mixed up some samples. There were about eight samples that were all in the same test tube container, and they mixed up the different people. They didn’t find out the difference until almost a year later. That was one of the episodes that ended up closing the lab.