Lawyers are not specialists just because they are licensed to practice. Only after spending years trying cases, honing legal skills and learning virtually everything about a certain area of the law is a lawyer eligible to apply for the title of “specialist.” The lawyer then has to pass an extensive character inquiry and a rigorous examination to formally claim the “specialist” title.

We believe DWI is one area that, due to its complexity, requires a certified criminal law specialist. Successful DWI defense involves, above all, courtroom skill. Substantive legal issues draw from a number of different statutory areas including at least the following statutes:

• Code of Criminal Procedure
• Penal Code
• Transportation Code
• Rules of Civil Procedure
• Administrative Procedure Act

DWI also involves complicated technical issues relating to breath and blood testing, as well as scientific research. Training in physiology, science and biostatistics helps with this. One of our criminal partners has an undergraduate degree focused on human physiology and biomechanics and also a graduate degree relating to biostatistics. This provides an excellent background to challenge the prosecution experts on these complicated issues.

There are many lawyers who are not actually specialists, but still claim that they practice “criminal defense,” and even some who claim to be “DWI lawyers!” Due to the complicated issues involved, many of these “not certified” lawyers can make big mistakes at the client’s expense.

You should watch out for the following mistakes that non-specialist lawyers may make:

Prosecutors know an inexperienced trial lawyer the second that they see them. Once a prosecutor “smells blood,” they can become aggressive and take advantage of the inexperienced lawyer’s lack of courtroom knowledge. Many times I have seen prosecutors jump all over an inexperienced lawyer that walks into the courtroom—just because they can! If they know your lawyer is a skilled trial lawyer, and on the level with them, these intimidation tactics do not occur.

Inexperienced DWI lawyers are scared of the jury trial. They do not pick many juries because of this. Instead, they settle almost every case and are forever wheedling with the prosecutors instead of standing up to them. Some of these lawyers may go years without picking a jury. They are scared of jury trials because they haven’t gained the necessary trial experience and, because of this, they fear that the prosecutors may show them up. They also fear that they may be embarrassed in front of other lawyers, the judge, the jury or their client. The fact is that their fear is warranted, because if they aren’t razor sharp in trial, they will be embarrassed and very possibly lose your case. That’s why they like to settle everything—there is less risk in that. Lawyers like this may hold back from fighting a case because of their fear, and it is at their client’s expense. A skilled trial lawyer is always trying to get to trial because he or she knows how to control the courtroom and win cases. Always ask any lawyer you interview when his last jury trial was. If it was any more than a month or two before—be careful!

Breath and blood testing requires a scientific background to be fully understood—and we’re talking about more than Chemistry 101. Even a person who has taken the breath test training course—like a police officer—probably does not really have any real academic scientific training. People who have basic training—like a police officer—may understand “how” to push the buttons on the breath test machine, and understand the parts, but they do not have the scientific background to understand the “why.” Instead of understanding the real scientific issues, they just repeat what they learned in their course. That is not a sufficient knowledge base to effectively cross-examine a prosecution expert witness. You have to truly understand the issues to win. Insist that your lawyer have actual understanding of the scientific issues in the DWI case. The best way to verify this is to inquire about your lawyer’s scientific academic background, not simply whether he owns or can take apart a breath test machine.

The client must understand all of the legal issues involved, no matter how complicated, otherwise his or her decisions will not be based on sound reasoning. Our clients will be educated on all of the issues so that they can make the best decisions for their particular circumstances.

In our opinion, many lawyers who are not specialists do not understand the legal procedures required for breath testing. Failure to follow those procedures can result in the breath test being excluded from evidence. We obtain the test records of the breath test machine for at least 1 month before and 1 month after the test to make sure that all of the maintenance and testing procedures have been followed. We will also question the officer who gave the test to confirm that the other requirements for admissibility were met.

Expert witnesses are just that—experts in a particular field that offer their services to aid in the defense of a case. There are many different types of experts that could help in a DWI case, and which ones to use depend on the issues in your particular DWI. Expert witnesses can be especially helpful in cases involving complicated scientific issues, such as breath or blood testing. Surprisingly, they can be affordable!

This is where it really helps to have a former prosecutor on your DWI defense team. If you have prosecuted a number of cases, you know what is going on from both sides. You see, prosecutors work directly with the police and understand their mistakes. In doing this, a prosecutor develops a complete understanding of police work—much, much more than someone who simply attends a field sobriety training course. A big part of the prosecutor’s job is trying to keep the officer’s mistakes from being discovered by the defense or the jury, and doing this requires complete knowledge of what they were supposed to do in the first place.

Most of the time, there are options besides probation. Many lawyers either don’t know this or don’t know how to ask for it. Sometimes you can simply get a fine, or possibly a reduction to a traffic ticket instead of probation. Sometimes you can completely get out of doing any community service hours. Sometimes, if you have another pending criminal case, your DWI case can be disposed under section 12.45 of the Penal Code, which is very similar to a dismissal. Other times a weekend in jail might save you thousands of dollars in fees and costs with the same effect on your record. Every case is different, but your lawyer needs to understand all of the punishment options to be able to adequately advise you.

If your lawyer doesn’t understand everything in the Code of Criminal Procedure, then he or she may be missing out on an available defense. The formal term for this is “ineffective assistance of counsel,” and it can really mess up your case. Make sure your lawyer has a complete mastery of all criminal laws and cases to ensure “effective” representation.

There are a number of different sections of the law that address license suspensions in a DWI case. Some of the suspension laws even conflict! It is important that your lawyer understands all of these laws or you could get a substandard result.

Upon being hired, lawyers have a “fiduciary” relationship to their clients, which means that they owe a very high standard of care and ethics to every client. When you hire a lawyer, it is understood that your case will be handled by that lawyer, not by some other lawyer! Many lawyers and law firms that handle DWI cases actually send subordinate or “associate” lawyers to court for them. This means that the lawyer you hired does not actually show up in court with you to fight your case! Since what happens in court is the most critical part of your case, you should only hire a lawyer that agrees to handle every portion of your case personally. If you hire one lawyer who touts his own qualifications, but then sends another lawyer in court who was not fully identified in the lawyer’s website or other advertising material—you have just been “baited and switched.”