#432 - DUI Defense Trial & Sentencing

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1 Lewis Gainr, Attrney at Law 1600 Glf Rd, Suite Rlling Meadws, IL Tel (224) Fax (224) I. Intrductin A. Why DUI is Gd Business B. Hw t Market Yurself as a DUI Lawyer C. Abut the Presenter II. Breathalyzer Testing A. Fundatin fr Admissin int Evidence: Elements B. Hiring an Expert C. Accuracy Checks D. License t Perfrm Breathalyzer Test E. Lgbks and Public/Business Recrds F. Hearsay Objectins G. Apprved Breathalyzer Devices III. Trial A. Decisin f Client t Demand Trial B. Bench v. Jury C. Vir Dire: Tragic Mistakes t Avid D. Crss-Examinatin Techniques 1D. Recmmit 2D. Accredit 3D. Expse E. Applying the Crss-Examinatin Technique t Cmbative Witness IV. Sentencing A. Malpractice Traps B. Negtiated Pleas f Guilty C. Sentencing Hearings D. Ineffective Assistance f Cunsel: Present Mitigatin E. Credit fr Time in Custdy V. Cnclusin A. Criminal Defense is Tugh B. Hw t Cntact the Presenter

2 Abut the Presenter Lewis Gainr is a criminal law attrney in Chicag, Illinis and funder f Lewis Gainr & Assciates, PC. He has been defending clients accused f driving under the influence in Illinis curts since Mr. Gainr received his training as an Assistant Public Defender in Lake Cunty fr nearly fur years. He has been in private practice since 2008, representing clients in curtrms thrughut the Chicag regin. He has individually tried mre than 40 juries t verdict and handled mre than 1,000 DUIs. His jury trials have been featured in the Daily Herald, Chicag Tribune, and patch.cm. Mr. Gainr received his BA frm the University f Missuri and his JD frm the University f Minnesta Law Schl. DISCLAIMER: The fllwing materials and accmpanying Access MCLE, LLC audi prgram are fr instructinal purpses nly. Nthing herein cnstitutes, is intended t cnstitute, r shuld be relied n as, legal advice. The authr expressly disclaims any respnsibility fr any direct r cnsequential damages related in any way t anything cntained in the materials r prgram, which are prvided n an as-is basis and shuld be independently verified by experienced cpyright cunsel befre being applied t actual matter. By prceeding further yu expressly accept and agree t Authr s abslute and unqualified disclaimer f liability.

3 I. Intrductin A. Why DUI is Gd Business #432 - DUI Defense Trial & Sentencing DUI is the mst cmmn charge amng criminal cases. Dmestic battery is a clse secnd. DUI clients usually have financial means. DUI is a misdemeanr n the first ffense (fr nw), and s yu are unlikely t d yur client a lt f damage. DUI can cmplement a divrce practice. Oppsing cunsel in DUI cases is typically a yung prsecutr (but nt necessarily inexperienced). Each case is similar. Yu can predict what will happen. B. Hw t Market Yurself as a DUI Lawyer Direct mail can be effective fr getting new clients. Many clerking agencies ffer this service. Check yur lcal rules t make sure this type f slicitatin is permitted. Timing is everything. Try t be the first t send a mailer. The internet is very effective fr getting new clients. At a minimum, yu shuld have a website. A blg can als be useful. But blgs dn t write themselves. Gd blg: (my wn). A family law practitiner may be a gd surce f referrals. When a marriage breaks dwn, the client typically suffers three prblems: DUI, divrce, and dmestic battery. C. Abut the Presenter I practice in the city and suburbs f Chicag. I ve persnally taken 40 cases t jury verdict, and handled ver 1,000 DUIs. I have tried felny DUI cases and als reckless hmicide. I have wn cases I shuld have lst, and lst cases I shuld have wn.

4 II. Breathalyzer Testing #432 - DUI Defense Trial & Sentencing A. Fundatin fr Admissin int Evidence: Elements Basically, the law in each state requires the prsecutin t establish the fllwing in rder t admit the breathalyzer int evidence: The machine was a device apprved fr testing. The machine was perated prperly. The machine was certified as accurate prir t the test and after. The individual cnducting the test was licensed t d s. The test was cnducted accrding t state regulatins. The result f the test belngs t the defendant. Failure t prve any f the abve elements will bar the prsecutin frm admitting the result. B. Hiring an Expert Mst experts are frmer law enfrcement fficers. They charge $1,000 t $2,500 t review the testing prcedures fr errr. If yu see an accuracy check r certificatin in the lgbk that ccurred n an irregular date, it suggests there was a malfunctin and an expert may be able t identify the prblem. C. Accuracy Checks Accuracy checks are perfrmed by a law enfrcement fficer wh recrds the result in the instrument s lgbk. Mdern breathalyzer instruments cnduct accuracy checks remtely. These machines are cnnected t a server via the internet and cnduct their wn accuracy checks n the 1 st f the mnth at a certain hur. Sme state laws d nt require these accuracy checks t be recrded in the lgbk. They typically appear n the breath slip frm the defendant s test. D. License t Perfrm Breathalyzer Test Check t see whether the license was expired at the time f the test. It happens. E. Lgbks and Public/Business Recrds The curts have said lgbks are admissible as business recrds r public recrds t establish that accuracy checks were perfrmed. The issue is whether the recrds are kept in the regular curse f business. Missing breath test results may indicate the recrds are nt kept in the regular curse f business and shuld be excluded. If the thery f admissibility is public recrd, then arguably redacting the names f ther defendants in the lgbk makes it a nn-public recrd.

5 F. Hearsay Objectins Crawfrd prhibits the admissin f testimnial hearsay where the declarant is unavailable unless the defendant had a prir pprtunity fr crss examinatin. Lgbks are hearsay, but the curts have held they are nn-testimnial r an established exceptin t the hearsay rule. G. Apprved Breathalyzer Devices Intximeters, Inc. is the leading manufacturer f breathalyzer devices. The breath slip will read: Intx EC/IR r sme ther mdel at the tp. This is nt the mdel name, as Intximeter EC/IR and Intxilyzer EC/IR are tw different mdels prduced by the manufacturer. If the fficer cannt identify the mdel used, then the result shuld be excluded. III. Trial A. Decisin f Client t Demand Trial Remember that it is yur client wh decides whether t g t trial. The client culd receive a jail sentence, s it is imprtant t make the decisin belng t him. B. Bench v. Jury Jury trials take at least a full day and maybe three. Vir dire is time-cnsuming. In this way, jury trials are nt prfitable. Bench trials are quick and easy. Mst lawyers waive pening statements. If the issue is whether the defendant was driving the vehicle (eg, yur client was smking a cigarette in the vehicle but gt a DUI because the keys were in his pcket), a jury is preferred. If the issue is that the defendant blew a 0.16 but lks stne cld sber n the vide, a jury is preferred. Here, yu argue that the breathalyzer was just wrng (eg, Yu ever have a cell phne drp a call? Technlgy isn t perfect. ) If the prsecutr knws yu are willing t try the case, yu ll get better ffers. C. Vir Dire: Tragic Mistakes t Avid Jury selectin is abut finding fair and impartial jurrs. Object t any questin abut whether the jurrs have been victims f drunk drivers r knw ther peple wh have been. Half the jurrs will answer in the affirmative and then half the rm seems against yu. Dn t let jury selectin becme a referendum n the evils f drunk driving.

6 Dn t ever vir dire a plice fficer. They may nt hate lawyers r yur client, but they are liable t say smething t make yu lk stupid. Dn t ever vir dire a dctr. It s true. They hate lawyers. They wuld lve t make yu lk stupid. The best curse f actin is t get thrugh vir dire appearing cmpetent and prfessinal. That s it. Yu can t figure ut the jurrs psychlgically s dn t even try. Avid getting bjected t. If the judge reprimands yu in frnt f the jury, it desn t matter that yu were right. The jurrs see the judge as an authrity figure and presume yu must be incmpetent r yu re cheating. D. Crss-Examinatin Techniques All criminal defense relies n crss examinatin. Yu dn t have t be smarter than the witness because yu already knw the answers. The answer is in the plice reprt. Yu re impeaching my prir incnsistent statement. 1D. Recmmit Officer, yur testimny was that yu saw my client behind the wheel, crrect? [ Yes. ] 2D. Accredit Yu wrte a plice reprt abut the incident, right? [ Yes. ] Yu were trained t include all the relevant details in yur reprt? [ Yes. ] This is imprtant because yu have many cases in curt and yu rely n yur reprt t differentiate them? [ Yes. ] After yu write the reprt, yu review it t make sure it s accurate? [ Yes. ] If it s accurate, yu sign yur name and badge number t it? [ Yes. ] Yu submit it t yur supervisr fr apprval? [ Yes. ] If smething were t happen t yu and yu weren t available as a witness, this reprt wuld be the nly recrd f what tk place? [ Yes. ] The reprt is cmplete, thrugh, and accurate? [ Yes. ] 3D. Expse In yur reprt, yu said nthing abut seeing my client in the driver s seat, did yu? E. Applying the Crss-Examinatin Technique t Cmbative Witness If the witness fights back, dn t panic. Just g back t the reprt. Fr instance, if the fficer says, I dn t remember, then refresh his recllectin with the reprt, and ask yur questin again. If the fficer says smething is in the reprt that isn t, then ask, Officer, yu re saying that s in this reprt? Ok. Please use my pen, and circle where that s in the reprt.

7 IV. Sentencing A. Malpractice Traps There are very few places where yu can get int truble in criminal defense, but sentencing is ne f them. Remember these rules: Always advise yur client f mandatry minimum sentences. Always present evidence in mitigatin. Always get yur client credit fr time in custdy. Always advise yur client that the judge makes the final decisin and nthing is guaranteed. Always advise yur client that a finding f guilt culd jepardize his prbatin n anther case. B. Negtiated Pleas f Guilty An agreed upn sentence has t be apprved by the judge. The judge was nt a party t the agreement and therefre is nt bund by it. Make sure the judge will apprve yur deal befre yu present it. Mst prsecutrs will tell yu if yu just ask. C. Sentencing Hearings A sentencing hearing will take place where there is n agreement. Yu will have t present argument n behalf f yur client. Make sure yu interview yur client fr mitigatin. These hearings are dangerus because yu dn t knw hw the judge will respnd. S ask ther lawyers what they expect. The public defender is a great resurce fr these questins. D. Ineffective Assistance f Cunsel: Present Mitigatin It is ineffective assistance f cunsel t fail t present mitigatin (eg, reasns why yur client shuld receive a lesser penalty). In a sentencing hearing yu shuld always make a recrd f mitigatin s it desn t cme back n yu. E. Credit fr Time in Custdy Every state s laws prvide that the defendant will receive credit fr time spent in custdy befre the date f sentencing. Get it right.

8 V. Cnclusin A. Criminal Defense is Tugh If yu want t get rich, there are better ways t d it. Criminal defense is a tugh business and DUI can be harder. Other lawyers undercut yur fees, and DUI ffenders are seen as the wrst by judges and prsecutrs. At times, it can seem like bth are prsecuting yur client. But that s why there is s much cmradery amng the defense bar. Reach ut t ther lawyers and make cnnectins. Yu need it. B. Hw t Cntact the Presenter Reach Lewis Gainr at Lewis Gainr & Assciates, PC Glf Rd, Suite 1200, Rlling Meadws, IL Tel (224) Fax (224)

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