Quick Takes for Your Practice: Advising a Client Stopped on Suspicion of DUI

Great primer on DUI law and especially on how to interface with the arresting officer.

Now that the ISBA has taken the position that a driver should never consent to a chemical test after an arrest for DUI, I hope that it will also consider taking the next step by encouraging its membership to look beyond the four corners of the courtroom and the defense of the DUI charge, using the incident as an opportunity to take a hard look at the client’s alcohol and drug use, counsel the client on the importance of leading a sober lifestyle, and, if warranted, offering to assist the client in getting treatment for their alcohol and drug problem.

If, per chance, the client took a test, then this gives the attorney an objective look at the extent of the client’s alcohol and drug use history and, if it is apparent that the client has an alcohol or drug problem (say a BAC of .20 or higher, or any amount of drugs in their system), then it should be the attorney’s obligation to refer the client to treatment, regardless of the outcome of the charge. Given the epic proportions of our country’s substance abuse epidemic, it is too late in the day to suggest that “getting someone off” fulfills the attorney’s duty to zealously represent the client. Rather, we should encourage the bar to also consider their duty under SC Rule 2.1 to “render candid advice”: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”

Finally, it would have been nice if Ms. Boyd could have offered another bit of advice to pass along to your clients: if you don’t drink and then drive, then the odds are very great that you will never have to worry about whether to test a chemical test.

I think that the advice is very good for someone who is representing an accused driver as an advocate. The counseling issue raised by Mr. Loro is very good. When I used to represent a lot of drivers who were accused of Drinking and Driving I would do that. In fact because of having had great success in representing these drivers I would frequently see people who were multiple repeat offenders. I stopped handling these cases because I would charge them a years salary to represent them and they would still end up back in these situations. I didn't want someone to lose their life because the person was still out on the road.

The solution to this problem is not legal, it is societal. Let's fact it honestly, the legal system just looks at this problem as a cash cow. The law by its nature and design is reactive and until problem drinkers reach the point that they decide that they have to change they won't.