DWI Cases Processed in a “One-Size-Fits-All” Manner Forfeit Integrity for Expedience?

Guest Article by Ms. Cynthia Hujar Orr, President of the National Association of Criminal Defense Lawyers (NACDL)

The judge sighs as the nervous defendant enters the courtroom. “Another DWI case? Hopefully he pleads guilty and we can get on with our days,” the judge thinks to herself. The defendant takes his lawyer’s advice by pleading guilty to the misdemeanor and walks away thinking that everything will go back to normal after his probation. He is wrong. Having a DUI/DWI conviction on his record will permanently affect him. Future employers will fear for hiring someone with a drinking problem. Institutes of higher learning reject applicants with DUIs or DWIs on their records. Auto insurance premiums skyrocket in addition to fees incurred by hiring a lawyer, going to court, classes, and fines. People found guilty of committing DWIs can lose their reputations, jobs, and families.

Some defense lawyers’ first court experiences are with DWI cases because they are viewed as mundane. Prosecutors feel that these cases are all-too-similar and routine. City officials view them as extra administrative overhead and wastes of resources. Arguably, only the defendant understands the importance of DWI cases. Cases involving drunk driving can be life-altering, and substandard evidence may lead to convictions of innocents. The same mindsets cause an opposite problem: people who could benefit from counseling do not receive it because lawyers and administrators focus on pushing defendants through their trials as opposed to individualizing justice.

Acceptance of second-rate evidence is a problem that plagues all trials, particularly DWI cases. Hard scientific evidence is blindly accepted in courtrooms without testing the legitimacy of methodology. Defense lawyers are left weaponless against the newest breath test devices so scientists can protect industry trade secrets. For example, a technician in Houston, Texas faked over one thousand breathalyzer validation tests.
She simply was not performing the necessary tests on the machines. Nobody was auditing her work. Courts also regularly admit evidence of “failed” horizontal gaze nystagmus tests which are incorrect 7 times out of 10. Even more ridiculous are improperly administered roadside sobriety tests that over 50 percent of sober people in high heels cannot pass. Officers typically fail to give proper instructions, do not correctly demonstrate the tests, and do not properly asses individuals’ performance. Adding to the problem are novice or apathetic lawyers who do not seek to exclude invalid blood and breath tests. Breath alcohol measurements can be inflated as much as 290 percent. A blood alcohol test can be slanted against defendants by improper sample collection, lack of usable test tubes, improper gas chromatography machine use, or “quality control” procedures. The precedent of Daubert vs. Kuhmo Tire should be heeded in DWI cases. Improper convictions occur when substandard evidence is accepted unchallenged by the defense.

Not only are DWI trials marred by improper evidence, organizations such as Mothers Against Drunk Driving (MADD) exert an undeniable influence on courtroom proceedings. MADD began with a noble goal: the prevention of drunk driving and all of the related harms: injuries, property destruction, and deaths. After it was overridden by corporate interests, MADD devolved into an organization bent on demonizing DWI defendants. MADD’s presence in the courtroom is an improper influence on the officials conducting trial. Jurors understand this, too. MADD needs to remember its foundation and advocate for problem-solving courts as advocated by the National Association of Criminal Defense Lawyers’ (NACDL) report: “America’s Problem-Solving Courts: The Criminal Costs of Treatment and the Case for Reform.” Instead of tampering with the scales of justice, MADD should leave trials to the experts and support court reformation. Reformation would better serve its stated goals of preventing drunk driving and recidivism.

The public would not tolerate MADD’s behavior if they were the prosecutors. MADD comforts, advises, and tends to the defendant’s family and friends in front of a jury during a trial. Obviously, such attentions pull at jurors’ heartstrings and these displays of favoritism contaminate trials with unshakable prejudice. No matter how well-intentioned, similar attentions to the family and friends of a person injured or killed as a result of a DWI would influence a jury. Additionally, it is unethical. Trials take place in courts, not in the media.

DWI cases processed in a “one-size-fits-all” manner forfeit integrity for expedience. Each case involves an individual human being with no less right to a fair trial than anyone else. Each case affects his or her life in an irrevocable manner. We need to remind the judicial system that DWI cases are not mundanities.

July 28, 2010, Posted by Rainy Day Mitch