A new client enters your office. He tells you he has been charged with his first DUI. The client reveals to you that on the night in question he was out with friends, had six mixed drinks, fell asleep behind the wheel, and crashed into a tree. The police responded to the scene and found the client stumbling around the vehicle. They administered three field sobriety tests — the nystagmus eye test, the one-leg stand test, and the walk and turn test. The client could not perform any of the tests. After his arrest, the client was taken to the police station where he took a breath test with a reading of 0.13%. The police reports confirm that the client's memory is accurate. The client asks your advice on what to do. If your answer is that the case is bad, the chance of winning remote and he should plead, you might be right — and you might be wrong.


In a time when the practice of law is becoming more and more specialized1, is it possible that a criminal practitioner should be hesitant to accept representation in some or all driving under the influence cases? The answer is yes, unless you have a detailed working knowledge of the type of issues and evidence common

to a DUI practice. By doing otherwise you may be doing your client a disservice.


Rule 1.1 of the Model Rules of Professional Conduct states:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge,

skill, thoroughness and preparation reasonably necessary for the representation.


The comment that follows the rule

gives a practitioner some more detailed direction as to what the rule may require:


Legal Knowledge and Skill

[1] In determining whether a lawyer employs the requisite knowledge and skill in a particular  matter, relevant factors

include the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training

and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it

is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. In

many instances, the required proficiency is that of a general practitioner. Expertise in a particular field of law may be

required in some circumstances.


[2] A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and

legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence

in the field in question.


To properly evaluate the above factual scenario, at a bare minimum a lawyer must possess knowledge concerning:


•What constitutes “operation” of a motor vehicle;

• The standardized field sobriety tests, including how they are administered and “graded” as well as how accurate they are (individually and collectively);

• How the breath test machine works and the scientific theory behind its operation; and

• How, when and why alcohol is absorbed into the body, and how it is metabolized.


In the above factual scenario you must know the questions to ask during the client interview to ensure that you are properly evaluating the case. We were all trained to spot issues in law school. After a semester-long course on an area of the law, we were tested on what issues we could “see” and why they were issues. We studied for hours upon hours. Before evaluating the above facts, or the facts in any other DUI case, doesn't the client

deserve that same knowledge and preparation? In the above case the field sobriety tests included the Walk and Turn test, the One-Leg Stand test, and the Horizontal Gaze Nystagmus test. The arresting officer's narrative report details the observations the officer made during the tests.