Plead guilty?
Nah, defend
DWI charges!
By Kenneth A. Vercammen
All too often, lawyers
throw up their hands when a client presents a ticket involving drug possession,
driving while suspended, DWI or assault. While defense of criminal court charges
involving serious motor vehicle charges may become an involved process
requiring commitment and persistence, there are a number of viable defenses and
arguments that can achieve a successful result. Rather than simply suggest a
client plead guilty and avoid trial, an attorney should accept the challenge
and apply his best legal talents to protect the client’s rights.
In-office interview
Potential
clients should bring in a copy of the complaint, all their papers in connection
with their case, accident report, and any documents they received from the
Motor Vehicle Commission. Often, I instruct them to write a confidential
narrative if it is a case that is fact-specific or involves a great deal of detail,
such as an assault case. When the client is first in the office, he should fill
out a confidential new criminal case interview sheet. This will allow you to
obtain background information such as name, address, the offenses charged, date
of the person’s arrest, other witnesses, and statements given to him by the
police, his occupation and information regarding prior criminal convictions and
prior motor vehicle convictions. Your interview sheet should also ask if there
is anything else important, such as a medical condition that affects his case.
This form will also let you know whether or not the client will follow
instructions and cooperate with you. If he refuses to provide information, you
may have a problem client. After reviewing the summons and the interview sheet,
I ask a series of questions of the client. I request that the client wait until
the end of the interview before explaining his side of the story. I also ask
him if there is anything else of importance in connection with the case that I
should know. The client may have pending serious criminal charges in another
state or country. I usually open up my statute book and show the client the
specific language of the offense he is charged with and explain to him the maximum
penalties that could be imposed. By understanding the charges they are facing, your
clients are more likely to realize the seriousness
of the
offense and to pay your retainer. Being retained Rule 1:11-2 of the Rules of
Professional Conduct indicates that a retainer letter or written statement of
fees is required for new clients. I also provide all my clients with written
information explaining how to appear in court, information on surcharges,
information on points, and information regarding substance abuse treatment, if
applicable.
Once you receive payment of the retainer, you can begin work right
away. Usually, while the client
should be prepared and look neat. The Grateful
Dead and Budweiser T-shirts should be replaced with something that looks
presentable. He should have his pregnant wife sitting next to him.
Edison attorney Kenneth Vercammen handles
criminal, personal injury, DWI, wills and business law. He lectures to trial lawyers
at the American Bar, New Jersey State Bar and Middlesex County Bar
associations. Reach him at 732.572.0500 or www.njlaws.com.
Client is still in the office, I prepare a discovery letter on the
computer to
the
prosecutor/district attorney and court and hand a copy to the client.
Occasionally,
I call the court to advise them that I will be handling the case
and to
inquire who handles discovery. You can check the Lawyers Diary to determine who
are the judges and prosecutor/district attorneys for the relevant county or
town. It is important to learn about the judge and the prosecutor. I require a
great deal of cooperation from my clients in an effort to
help keep
their costs reasonable. For example, I ask my clients to take photographs of
accident sites and prepare diagrams and provide me with the
names,
addresses, and telephone numbers of witnesses.
I recommend that my clients provide me with a list of between 10 to 15
reasons why
they should not go to jail and why the court should impose the
minimum
license suspension. You can recommend that they obtain a motor
vehicle
abstract. This will provide you with information for mitigation of penalties and
also provides information to be considered by the judge in sentencing.
Post-interview work
Many states
have programs for first time offenders who have never previously
been arrested
or previously convicted of a criminal offense. Again, to avoid embarrassment it
is a good idea to speak with the prosecutor/district attorney and the police
officer because they may have a criminal abstract to indicate that the client
is not eligible for a diversions type program. You should also make a motion to
suppress if there is a question regarding the validity of a stop or search. Any
other motions to dismiss you make, such as those based on a statute of
limitations or lack of jurisdiction, should be made in writing. In cases that
deal with just one tribal issue such as the admissibility of a blood test
result for alcohol or drugs, you can make a motion in limine or suggest a pre-trial conference. It is a good idea to
try to know how the
judge will
decide in order to save yourself from a three-hour trial on a complicated case.
If the court rules against you in the motion in limine, you can
enter a
guilty plea contingent upon reserving your right to appeal on that one issue.
Discovery
Often, you
will not receive all of the discovery that you request. In this case, send a
letter to the prosecutor requesting additional discovery and request that the
discovery be provided within 10 days. If you do not receive
the discovery
within 10 days, then prepare a motion to compel discovery.
In the case
involving essential witnesses, I occasionally write to the witnesses
and ask them
to call me so that I can find out what really happened.
If possible,
I have a law clerk call up after we send the initial letter. The attorney cannot
testify if the witness provides an inconsistent statement, but
the law clerk
can testify. I sometime speak to friendly witnesses myself
later to
determine whether or not the witness is credible. Upon receiving discovery,
forward a photocopy of all discovery to your client. Then you can discuss with
the client whether or not he has a reasonable prospect of winning.
Preparing for
court If it is a drug case, you should make an objection to the entry of the
lab certificate as evidence at trial. You are also under a responsibility to
provide any reciprocal discovery to the prosecutor. Occasionally, in a court where
there is only one prosecutor you should call the criminal court prosecutor ahead
of time to see if a matter can be worked out or plea-bargained. Some criminal
prosecutors in lower courts work part-time and are not compensated for the many
telephone calls they get in their offices.
If you
discover a favorable case, make a copy for the judge, prosecutor, and client.
Never assume the part-time prosecutor or judge is familiar with all the laws.
You can prepare a subpoena ad
testificandum for witnesses to testify and subpoena duces tecum for witnesses to bring documents. I have my clients
hand deliver the subpoenas and write out their own checks for the subpoena
fees. It is better to be over prepared than under-prepared.
Reprinted from NJ Esq. Legal Newspaper April 20, 2009
