Lewis Gainor, Attorney at Law 1600 Golf Rd, Suite 1200 www.illinoisdui.us Rolling Meadows, IL 60008 Tel (224) 688-9118 Fax (224) 218-2288
I. Introduction
A. Why DUI is Good Business
B. How to Market Yourself as a DUI Lawyer C. About the Presenter
II. Breathalyzer Testing
A. Foundation for Admission into Evidence: Elements B. Hiring an Expert
C. Accuracy Checks
D. License to Perform Breathalyzer Test E. Logbooks and Public/Business Records F. Hearsay Objections
G. Approved Breathalyzer Devices
III. Trial
A. Decision of Client to Demand Trial B. Bench v. Jury
C. Voir Dire: Tragic Mistakes to Avoid D. Cross-Examination Techniques
1D. Recommit 2D. Accredit 3D. Expose
E. Applying the Cross-Examination Technique to Combative Witness
IV. Sentencing
A. Malpractice Traps
B. Negotiated Pleas of Guilty C. Sentencing Hearings
D. Ineffective Assistance of Counsel: Present Mitigation E. Credit for Time in Custody
V. Conclusion
A. Criminal Defense is Tough B. How to Contact the Presenter
About the Presenter
Lewis Gainor is a criminal law attorney in Chicago, Illinois and founder of Lewis Gainor & Associates, PC. He has been defending clients accused of driving under the influence in Illinois courts since 2004.
Mr. Gainor received his training as an Assistant Public Defender in Lake County for nearly four years. He has been in private practice since 2008, representing clients in courtrooms throughout the Chicago region. He has individually tried more than 40 juries to verdict and handled more than 1,000 DUIs. His jury trials have been featured in the Daily Herald, Chicago Tribune, and patch.com.
Mr. Gainor received his BA from the University of Missouri and his JD from the University of Minnesota Law School.
DISCLAIMER: The following materials and accompanying Access MCLE, LLC audio program are for instructional purposes only. Nothing herein constitutes, is intended to constitute, or should be relied on as, legal advice. The author expressly disclaims any responsibility for any direct or consequential damages related in any way to anything contained in the materials or program, which are provided on an “as-is” basis and should be independently verified by experienced copyright counsel before being applied to actual matter. By proceeding further you expressly accept and agree to Author’s absolute and unqualified disclaimer of liability.
I. Introduction
A. Why DUI is Good Business
DUI is the most common charge among criminal cases. Domestic battery is a close second.
DUI clients usually have financial means.
DUI is a misdemeanor on the first offense (for now), and so you are unlikely to do your client a lot of damage.
DUI can complement a divorce practice.
Opposing counsel in DUI cases is typically a young prosecutor (but not necessarily inexperienced).
Each case is similar. You can predict what will happen.
B. How to Market Yourself as a DUI Lawyer
Direct mail can be effective for getting new clients. Many clerking agencies offer this service. Check your local rules to make sure this type of solicitation is permitted. Timing is everything. Try to be the first to send a mailer.
The internet is very effective for getting new clients. At a minimum, you should have a website. A blog can also be useful. But blogs don’t write themselves. Good blog: www.illinoisdui.us (my own).
A family law practitioner may be a good source of referrals. When a marriage breaks down, the client typically suffers three problems: DUI, divorce, and domestic battery.
C. About the Presenter
I practice in the city and suburbs of Chicago. I’ve personally taken 40 cases to jury verdict, and handled over 1,000 DUIs. I have tried felony DUI cases and also reckless homicide. I have won cases I should have lost, and lost cases I should have won.
II. Breathalyzer Testing
A. Foundation for Admission into Evidence: Elements
Basically, the law in each state requires the prosecution to establish the following in order to admit the breathalyzer into evidence:
The machine was a device approved for testing.
The machine was operated properly.
The machine was certified as accurate prior to the test and after.
The individual conducting the test was licensed to do so.
The test was conducted according to state regulations.
The result of the test belongs to the defendant.
Failure to prove any of the above elements will bar the prosecution from admitting the result.
B. Hiring an Expert
Most experts are former law enforcement officers. They charge $1,000 to $2,500 to review the testing procedures for error.
If you see an accuracy check or certification in the logbook that occurred on an irregular date, it suggests there was a malfunction and an expert may be able to identify the problem.
C. Accuracy Checks
Accuracy checks are performed by a law enforcement officer who records the result in the instrument’s logbook.
Modern breathalyzer instruments conduct accuracy checks remotely. These machines are connected to a server via the internet and conduct their own accuracy checks on the 1st of the month at a certain hour. Some state laws do not require these accuracy checks to be recorded in the logbook. They typically appear on the breath slip from the defendant’s test.
D. License to Perform Breathalyzer Test
Check to see whether the license was expired at the time of the test. It happens.
E. Logbooks and Public/Business Records
The courts have said logbooks are admissible as business records or public records to establish that accuracy checks were performed.
The issue is whether the records are kept in the regular course of business. Missing breath test results may indicate the records are not kept in the regular course of business and should be excluded.
If the theory of admissibility is public record, then arguably redacting the names of other defendants in the logbook makes it a non-public record.
F. Hearsay Objections
Crawford prohibits the admission of testimonial hearsay where the declarant is unavailable unless the defendant had a prior opportunity for cross examination.
Logbooks are hearsay, but the courts have held they are non-testimonial or an established exception to the hearsay rule.
G. Approved Breathalyzer Devices
Intoximeters, Inc. is the leading manufacturer of breathalyzer devices.
The breath slip will read: “Intox EC/IR” or some other model at the top. This is not the model name, as Intoximeter EC/IR and Intoxilyzer EC/IR are two different models produced by the manufacturer.
If the officer cannot identify the model used, then the result should be excluded.
III. Trial
A. Decision of Client to Demand Trial
Remember that it is your client who decides whether to go to trial.
The client could receive a jail sentence, so it is important to make the decision belong to him.
B. Bench v. Jury
Jury trials take at least a full day and maybe three. Voir dire is time-consuming. In this way, jury trials are not profitable.
Bench trials are quick and easy. Most lawyers waive opening statements.
If the issue is whether the defendant was driving the vehicle (eg, your client was smoking a cigarette in the vehicle but got a DUI because the keys were in his pocket), a jury is preferred.
If the issue is that the defendant blew a 0.16 but looks stone cold sober on the video, a jury is preferred. Here, you argue that the breathalyzer was just wrong (eg, “You ever have a cell phone drop a call? Technology isn’t perfect.”)
If the prosecutor knows you are willing to try the case, you’ll get better offers.
C. Voir Dire: Tragic Mistakes to Avoid
Jury selection is about finding fair and impartial jurors.
Object to any question about whether the jurors have been victims of drunk drivers or know other people who have been. Half the jurors will answer in the affirmative and then half the room seems against you. Don’t let jury selection become a referendum on the evils of drunk driving.
Don’t ever voir dire a police officer. They may not hate lawyers or your client, but they are liable to say something to make you look stupid.
Don’t ever voir dire a doctor. It’s true. They hate lawyers. They would love to make you look stupid.
The best course of action is to get through voir dire appearing competent and professional. That’s it. You can’t figure out the jurors psychologically so don’t even try.
Avoid getting objected to. If the judge reprimands you in front of the jury, it doesn’t matter that you were right. The jurors see the judge as an authority figure and presume you must be incompetent or you’re cheating.
D. Cross-Examination Techniques
All criminal defense relies on cross examination. You don’t have to be smarter than the witness because you already know the answers. The answer is in the police report. You’re impeaching my prior inconsistent statement.
1D. Recommit
o “Officer, your testimony was that you saw my client behind the wheel, correct?” [“Yes.”] 2D. Accredit
o “You wrote a police report about the incident, right?” [“Yes.”]
o “You were trained to include all the relevant details in your report?” [“Yes.”]
o “This is important because you have many cases in court and you rely on your report to differentiate them?” [“Yes.”]
o “After you write the report, you review it to make sure it’s accurate?” [“Yes.”]
o “If it’s accurate, you sign your name and badge number to it?” [“Yes.”]
o “You submit it to your supervisor for approval?” [“Yes.”]
o “If something were to happen to you and you weren’t available as a witness, this report would be the only record of what took place?” [“Yes.”]
o “The report is complete, thorough, and accurate?” [“Yes.”]
3D. Expose
o “In your report, you said nothing about seeing my client in the driver’s seat, did you?” E. Applying the Cross-Examination Technique to Combative Witness
If the witness fights back, don’t panic. Just go back to the report.
For instance, if the officer says, “I don’t remember,” then refresh his recollection with the report, and ask your question again.
If the officer says something is in the report that isn’t, then ask, “Officer, you’re saying that’s in this report? Ok. Please use my pen, and circle where that’s in the report.”
IV. Sentencing
A. Malpractice Traps
There are very few places where you can get into trouble in criminal defense, but sentencing is one of them.
Remember these rules:
o Always advise your client of mandatory minimum sentences.
o Always present evidence in mitigation.
o Always get your client credit for time in custody.
o Always advise your client that the judge makes the final decision and nothing is guaranteed.
o Always advise your client that a finding of guilt could jeopardize his probation on another case.
B. Negotiated Pleas of Guilty
An agreed upon sentence has to be approved by the judge. The judge was not a party to the agreement and therefore is not bound by it.
Make sure the judge will approve your deal before you present it. Most prosecutors will tell you if you just ask.
C. Sentencing Hearings
A sentencing hearing will take place where there is no agreement. You will have to present argument on behalf of your client. Make sure you interview your client for mitigation.
These hearings are dangerous because you don’t know how the judge will respond. So ask other lawyers what they expect. The public defender is a great resource for these questions.
D. Ineffective Assistance of Counsel: Present Mitigation
It is ineffective assistance of counsel to fail to present mitigation (eg, reasons why your client should receive a lesser penalty).
In a sentencing hearing you should always make a record of mitigation so it doesn’t come back on you.
E. Credit for Time in Custody
Every state’s laws provide that the defendant will receive credit for time spent in custody before the date of sentencing. Get it right.
V. Conclusion
A. Criminal Defense is Tough
If you want to get rich, there are better ways to do it. Criminal defense is a tough business and DUI can be harder. Other lawyers undercut your fees, and DUI offenders are seen as the worst by judges and prosecutors. At times, it can seem like both are prosecuting your client. But that’s why there is so much comradery among the defense bar. Reach out to other lawyers and make connections. You need it.
B. How to Contact the Presenter
Reach Lewis Gainor at Lewis Gainor & Associates, PC. 1600 Golf Rd, Suite 1200, Rolling Meadows, IL 60008. Tel (224) 688-9118. Fax (224) 218-2288. [email protected]. www.illinoisdui.us
