Morality of DUI-specialty lawyers

Post by **Edi** » 2006-01-27 02:09am

As an addendum to the DUI that is a bit off topic for the current discussion, about the only acceptable reason to get behind the wheel while hammered is a medical emergency when there are no other drivers available. They told me in driving school about a case here where a guy didn't even get charged for driving so drunk he could barely stand. However, he was taking a friend of his to the hospital because the friend (also drunk as a skunk) had managed to split his leg open with an axe while choping firewood and would probably have bled to death before help could arrive even if they'd called the emergency number. When he got pulled over by the cops, they took the injured guy to the hospital, the driver to a lockup to sleep it over and the investigation concluded that the gravity of the situation excused the DUI offense.

Edi

Netko · Post by **Netko** » 2006-01-27 05:00am

One more vote for instant breathalyzer on the spot. Plus drop a provision in the law that allowes for absurd inaccuracies on the precision of the device compared to their manufacturer-specified inaccuracy (like 0.2 that we have here, however we also have a 0.0 allowed alcohol in blood law so some leniency on the lower level so that strawman situations wouldn't happen was necessary) to stop any bullshit "Oh the device isn't precise!" arguments.

However you set it up, since the techonlogy exists, there should be on-the-spot testing to stop the idiots from arguing such bullshit.

PeZook · Post by **PeZook** » 2006-01-27 05:15am

mmar wrote:However you set it up, since the techonlogy exists, there should be on-the-spot testing to stop the idiots from arguing such bullshit.

Funny, since every road police patrol car here in Poland has a breathalyzer on them, and on-the-spot testing is common and written into law. What's the problem with doing the same in the USA?

Police here often do random checks on drivers (yes, they can and often do pull you over without a reason, just for a random check). While you can refuse a breathalyzer test, the patrol can then legally take you to a precinct to arrange a blood test.

What is strange, however, is even though idiots like these get slapped with really harsh punishments, including the removal of all driving priviledges and jail terms, the amount of drunk drivers on Polish roads is steadily increasing. Obviously, harsh punishment is not enough to deter cretins from being cretins.

Post by **Darth Wong** » 2006-01-27 10:35am

The legal problem with in-car breathalyzers is that lawyers can and will successfully argue that they are probably not being properly maintained since every damned patrol car has one. So they will argue that the one at the station is probably much better maintained and therefore more accurate. And then they'll use this bullshit "last drink" defense to get the measurement from the one at the station thrown out.

Stravo · Post by **Stravo** » 2006-01-27 10:53am

Darth Wong wrote:The legal problem with in-car breathalyzers is that lawyers can and will successfully argue that they are probably not being properly maintained since every damned patrol car has one. So they will argue that the one at the station is probably much better maintained and therefore more accurate. And then they'll use this bullshit "last drink" defense to get the measurement from the one at the station thrown out.

How is it wrong to argue that a breathalyzer in the station is better maintained and thus more accurate? If that is true then the argument is correct and not bullshit.

If you were up for Murder I assume you would want your lawyer to argue for the more accurate and better maintained DNA tester in a lab instead of the beat up in the car trunk of a Police Cruiser DNA tester to ascertain your innocence.

People are looking askance at these arguments and some people even saying using loopholes goes against the 'spirit' of the law. Frankly we never once heard anything regarding the 'spirit' of the law in Law School and if there is such a concept I assume we would have heard it then or perhaps over the years in my practice. We were taught how to read a law and see the structure and look for the rules and the loopholes and the procedures involved.

The point here is that a lawyer must do his best to defend his client within the law and ethical constraints and there are no ethical constraints against making the government prove up its case.

You may be getting a DUI off but you also may spur the Police Department to be more stringent about its breathalyzer practices and policies, you may spur a legislature to close those loopholes. But what is a lawyer with a client who doesn't want to go to jail supposed to do? See a loophole and pretend its not there? Next time you're up for a criminal offense make sure to tell your lawyer to honor and respect the 'spirit' of the law and ignore those pesky loopholes or procedural tricks.

The job is the job. To quote my urban brethren "Don't hate the player, hate the game."

Post by **Darth Wong** » 2006-01-27 10:57am

Stravo wrote:How is it wrong to argue that a breathalyzer in the station is better maintained and thus more accurate?

Because the 0.08 limit is already so generous that the person is clearly impaired even if the device is at the outer limit of its tolerance. They set the limit ridiculously high in order to make sure that no defendant will be convicted unless we are absolutely certain that he was far too drunk to operate a motor vehicle and then they allow these kinds of loopholes so that somebody who might have been a 0.074 gets off.

The point here is that a lawyer must do his best to defend his client within the law and ethical constraints and there are no ethical constraints against making the government prove up its case.

Why should a lawyer who knows his client is guilty try to defend him anyway? Don't tell me that these ass-clowns aren't doing this; their favourite tactic is this bullshit "last drink defense"; they actually make a point of mentioning it in every radio ad they do.

SCRawl · Post by **SCRawl** » 2006-01-27 10:58am

Stravo wrote:
Darth Wong wrote:The legal problem with in-car breathalyzers is that lawyers can and will successfully argue that they are probably not being properly maintained since every damned patrol car has one. So they will argue that the one at the station is probably much better maintained and therefore more accurate. And then they'll use this bullshit "last drink" defense to get the measurement from the one at the station thrown out.
How is it wrong to argue that a breathalyzer in the station is better maintained and thus more accurate? If that is true then the argument is correct and not bullshit.

Mike was calling bullshit at the so-called "last drink" defence, not the breathalyzer maintenance issue. See the OP for clarification.

Stravo · Post by **Stravo** » 2006-01-27 11:44am

Darth Wong wrote:
Stravo wrote:The point here is that a lawyer must do his best to defend his client within the law and ethical constraints and there are no ethical constraints against making the government prove up its case.
Why should a lawyer who knows his client is guilty try to defend him anyway? Don't tell me that these ass-clowns aren't doing this; their favourite tactic is this bullshit "last drink defense"; they actually make a point of mentioning it in every radio ad they do.

So wait, are we saying that the giulty don't have a right to legal counsel?

The defense attorney should not care whether his client is guilty or innocent. The principle is what's important - the idea that everyone gets a vigorous defense, no matter what (minirant: unless of course they can't pay but hey that's neither here nor there. Let's also remember before we start talking about lawyers being vampires and vultures that many medical professionals are reluctant to or won't treat you if you don't have insurance so money grubbing is not limited to just the legal profession) is at the heart of our system. Guilty or innocent you will get the best defense possible. This ensures that the government and plaintiffs must always prove up their cases keeping people supposedly honest in our adversarial system.

Is it perfect? See our minirant above. Best defense money can buy is what the reality is but the principal is still there. No matter what your position you will get a defense.

Post by **Darth Wong** » 2006-01-27 12:17pm

Stravo wrote:So wait, are we saying that the giulty don't have a right to legal counsel?

Are we saying that the purpose of the justice system is to play a game rather than establish guilt or innocence? It seems that your defense here is to simply point out that they're playing by the rules of the game, which really has nothing to do with the question of ethics I posed. It would be like an engineer defending an example of grossly unethical conduct by pointing out that he didn't technically break the law; that is not an ethical defense.

Durandal · Post by **Durandal** » 2006-01-27 12:26pm

Darth Wong wrote:Are we saying that the purpose of the justice system is to play a game rather than establish guilt or innocence? It seems that your defense here is to simply point out that they're playing by the rules of the game, which really has nothing to do with the question of ethics I posed. It would be like an engineer defending an example of grossly unethical conduct by pointing out that he didn't technically break the law; that is not an ethical defense.

The underlying assumption is almost analogous to saying, "If we let all baseball players take steroids, it'll even out the playing field". The American justice system assumes that if the prosecution can still prove its case after the defense lawyer has pulled all the dirty tricks he's allowed to pull, then the probability of a wrongful conviction becomes very small. It's very much geared toward the idea of "innocent until proven guilty".

Finding out what really happened is supposed to be a by-product of the system, not the goal itself.

Stravo · Post by **Stravo** » 2006-01-27 12:30pm

Darth Wong wrote:
Stravo wrote:So wait, are we saying that the giulty don't have a right to legal counsel?
Are we saying that the purpose of the justice system is to play a game rather than establish guilt or innocence? It seems that your defense here is to simply point out that they're playing by the rules of the game, which really has nothing to do with the question of ethics I posed. It would be like an engineer defending an example of grossly unethical conduct by pointing out that he didn't technically break the law; that is not an ethical defense.

Then who is judging guilt in this instance? The Government? A Beat Cop?

If you say the breathalyzer then I say "When was it last calibrated?" "What are your procedures for taking the samples. Did you follow them precisely in this case?" "Is human error possible with a breathalyzer" etc.

There is no final arbiter of guilt or innocence in a case like this that cannot be questioned and so how do you presume guilt?

In order for it to be unethical I presume that his guilt must be unequivocal. But if you can't prove guilt how can you prove it unethical? And how do you approach it from the standpoint that in this system everyone is innocent until proven guilty? If you can't prove it - no guilt.

How do you know he's guilty? You cannot say because he scored .08 when I can put up a flurry of questions that bring that number into doubt. I'm sure I'm being too legalistic about this.

Post by **Darth Wong** » 2006-01-27 12:38pm

Stravo wrote:Then who is judging guilt in this instance? The Government? A Beat Cop?

Apparently, the same people who have used various legal methods to keep police from forcibly taking blood samples of suspects, then keep them from using the larger, more accurate stationary breathalyzer units at the station because of the "last drink defense", then force them to rely on at-the-scene small handheld breathalyzers (the least accurate possible method) and then use the resulting lower accuracy in order to get their clients off. It seems to me that every aspect of the system is geared to get drunks off.

If you say the breathalyzer then I say "When was it last calibrated?" "What are your procedures for taking the samples. Did you follow them precisely in this case?" "Is human error possible with a breathalyzer" etc.

Which is a good example of the sort of bullshit I'm talking about because human error is "possible" with anything. If that's your idea of "reasonable doubt", then it would be almost impossible to convict anyone of drunk driving. As for the accuracy of the device, that goes back to the previous problem: lawyers try to eliminate all of the most accurate methods of testing and then declare that the very inaccuracy which results from this process means their clients cannot be held guilty.

There is no final arbiter of guilt or innocence in a case like this that cannot be questioned and so how do you presume guilt?

In order for it to be unethical I presume that his guilt must be unequivocal. But if you can't prove guilt how can you prove it unethical? And how do you approach it from the standpoint that in this system everyone is innocent until proven guilty? If you can't prove it - no guilt.

Take the "last drink defense", which is the one I specifically named in the opening post; in this defense it is freely acknowledged that the individual has been drinking, then got in the car, and that he was over the legal blood alcohol limit when he got to the station. There is no question that this asshole downed a bunch of drinks and then got in the car. The lawyer simply seizes an opportunity to get his client off even though he knows this prick is a menace to society.

How do you know he's guilty? You cannot say because he scored .08 when I can put up a flurry of questions that bring that number into doubt. I'm sure I'm being too legalistic about this.

Yes, you are. You're totally ignoring the fact that in the specific example defense I mentioned at the beginning of this thread, it is established that the asshole in question downed too much alcohol and then got in the car.

Stravo · Post by **Stravo** » 2006-01-27 12:54pm

I've read over the last drink defense. I began writing up a diatribe about how this is just another legal manuever to attack accuracy of tests when I realized that I was not really answering the point raised from the ethical standpoint. I was arguing for the system when Mike is questioning the validity of the system from a moral standpoint.

Having taken ethics and morality over 10 years ago in College I can be quite rusty about the differences in view points and for that I apologize.

However years of training and education have forced my viewpoint to ignore points of right or wrong when it comes to the higher principals of our system as it stands now. The legal system is about proof, evidence and procedure. But the higher purpose is that even if you are guilty you must be afforded a defense in order to keep all of us honest and on our toes. I happen to believe in that view but I can agree that when viewed from a moral standpoint there is something wrong about that.

Post by **Darth Wong** » 2006-01-27 04:27pm

Is there a formal code of ethics which lawyers are supposed to observe? If so, what does it say?

Natorgator · Post by **Natorgator** » 2006-01-27 04:43pm

Although I'm somewhat changing the topic, isn't a certain blood level a faulty one-size-fits-all approach? Alcohol affects people in different ways, and wouldn't a person with higher tolerance be able to operate normally with more in their system (and vice-versa for someone with no tolerance?)

Case in point: I know someone who got stopped at a roadblock, and he passed every single field sobriety test. Then the officer gave him a breathalyzer because it was required; he blew a .081 and was taken to jail even though he was obviously not impaired.

Post by **Darth Wong** » 2006-01-27 04:48pm

Natorgator wrote:Although I'm somewhat changing the topic, isn't a certain blood level a faulty one-size-fits-all approach? Alcohol affects people in different ways, and wouldn't a person with higher tolerance be able to operate normally with more in their system (and vice-versa for someone with no tolerance?)

That's like the argument that some 13-year old girls are mature enough to have sex. That might well be true, but you have to set a figure. And it's hardly unreasonable to tell somebody that if he's had 4 drinks he can't fucking drive, no matter how resistant he believes he is.

Case in point: I know someone who got stopped at a roadblock, and he passed every single field sobriety test. Then the officer gave him a breathalyzer because it was required; he blew a .081 and was taken to jail even though he was obviously not impaired.

He was impaired. He might not have been stumbling, but he was impaired. It's impossible to have 0.08 blood alcohol and not suffer any deterioration in your faculties. And I have zero sympathy for any asshole who tries to cut the alcohol limit that close anyway; people who are truly concerned about public safety wouldn't do that.