Wednesday, December 30, 2009

The Art of DWI Defense

As the year 2009 comes to an end for me it is a time to reflect upon the past, and prepare for 2010. I have learned a lot this year, and grown as a DWI defense practitioner, and as a person. So as the year comes to a close... what have I learned? Or more true to form ... what have I been forced to remember?

1. You have to fight for what you want. Contesting a DWI comes with a price. Very little of true value, and worth comes easily. This price is not just money. It is time, it is effort, it is emotion, and it comes with making an investment in the outcome.

Whoever is first to the battle will be fresh for the fight. Sun Tzu

2. What happens outside of the Courtroom determines what happens inside the Courtroom. If a DWI trial is a day or two, the prep for that trial is weeks to months. Much like a game of football, level of practice and training determines the game's outcome. Few realize that those magic moments on game day are the result of thousands of hours of mental and physical work.

For me it is all those seminars, certifications in FSTs and Breath Testing, books, and DVDs. It is honing and focusing on one thing to the exclusion of all else.

The general who wins the battle makes many calculations in his temple before the battle is fought. The general who loses makes but few calculations beforehand. Sun Tzu

3. DWI Policies are not set in stone. This year the Pope changed midnight mass to 10:00PM. In the 1960s the Catholic Church changed services from Latin to English. What is true and fixed one minute or moment in time will change tomorrow. Everything is dynamic, nothing is static.

If a District Attorney says, "we have never done it that way," I say, "well maybe now is the time to change." The government has policies, the Church has policies, and many corporations have policies. Rules, written and unwritten, observed and not observed are all subject to change. This year I have shown multiple people that just because you say (or your company states) this is the way it is, or this is the way it has to be, or this is the way we have done it for years, does not mean that is the way it will be, right now in this particular case or situation.

Water shapes its course according to the nature of the ground over which it flows; so in wartime there are no constant conditions. Sun Tzu

4. You have to move to progress. I get calls all the time. Sometimes from people not happy with their current lawyers. Often those lawyers did not file any motions, and did not move cases to suppression hearings in advance of trial. Even though we are in the defense game, you have to play offense as well. DWI cases are special in that waiting and hoping for what I call a Rambo victory by attrition is not a likely scenario. Remember in movie First Blood when Rambo was able to survive out in the wilderness. He was able to withstand the elements (the weather), able to forage and find food, and to create shelter out of garbage. He was able to outlast and outplay his pursuers. In survivor terms it was a battle for victory by attrition.

I have seen and heard of defense lawyers prolonging DWI cases for years in the hopes of getting a deal. Just one conference after another. This is more common with older lawyers. It is a civil strategy as well. The "Wear the Bastards Down" technique. Maybe that game plan will work with a drug case, or maybe that will work with a case involving civilian witnesses to a crime. I do not subscribe to that theory. Move, move hard, move fast, be proactive, and strike points. In other words, build a case defense, have a strategy, and attack the evidence. You cannot attack anything on your back. Make a Full frontal assault at the State's case, put them on the defense.

There has never been a protracted war from which a country has benefited.

One defends when his strength is inadequate, he attacks when it is abundant.

Thus, though we have heard of stupid haste in war, cleverness has never been seen associated with long delays. Sun Tzu

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