Shannon H. McFee Criminal Law Blog on Lawyers.com

As I sat down to write this article, I received an email
from FACDL member Brian Tannenbaum wherein he forwarded an article written by
Larry Pozner in his 1999 President’s column for the NACDL “Champion” magazine
entitled Lessons Learned. A few of the lessons that were set forth
are:

“Of your ten greatest
victories, seven will be deals. Nobody will hear about the deals, but they count
just as much.”

“Clients benefit from
your reputation. It’s not in their interest or yours to do anything
questionable, even if they think it is.”

“Your reputation for
integrity will win you more motions than will case
law.”

These lessons are universal and we are
never too experienced to be reminded of their
importance.

          When we took our oath as attorneys in the
State of Florida, we agreed to be bound by the Rules of
Professional Conduct. The Preamble to the Rules of Professional Conduct sets
forth, in part, that:

A lawyer, as a member of the legal
profession, is a representative of clients, an officer of the legal system, and
a public citizen having special responsibility for the quality of
justice.

As a representative of clients, a lawyer
performs various functions. As an
adviser, a lawyer provides a client with a informed understanding of
the client’s legal rights and obligations and explains their practical
implications. As an advocate, a
lawyer zealously asserts the client’s position under the rules of the adversary
system. As a negotiator, a lawyer
seeks a result advantageous to the client but consistent with requirements of
honest dealing with others. As an
evaluator, a lawyer acts by examining a client’s legal affairs and
reporting about them to the client or to others.

Our obligations to our client as an
adviser, advocate, negotiator and evaluator begin from the moment the client
calls or stops by the office for the initial interview. Many times, I fear,
counsel in DUI defense may be lacking one or more of these individual yet
interrelated roles we must play.

We all recognize that in order to obtain
the best possible resolution for our clients there is no substitute for
preparation. Preparation is the benchmark for positive negotiation with opposing
counsel and the court and it is necessary for client management. Preparation is
essential in establishing your reputation as an adviser, advocate, negotiator
and evaluator.

Preparation takes its form by being aware
of the facts of your case, the law that applies and the connection to the
community in which you live. For example, even though we know that legally, the
State has numerous hurdles to overcome in proving a DRE/urine screen case, we
also may realize that in a given community, the fear of cocaine being in
someone’s system, is enough for a jury to convict the client of DUI. Within that
same community, a jury may very well acquit the Defendant facing a DRE
prosecution for prescription medication. Knowledge of your community is
essential to fulfilling your multiple roles as defense
attorney.

The law gives you the tools necessary to
serve your client and the interests of justice. Florida Statute section 316.193
sets forth the penalties for Driving Under the Influence. This may seem so
basic, but I challenge each reader to go to misdemeanor court and watch more
than just your case sometime and see the number of attorneys who are in the
court representing a DUI defendant who have absolutely no idea as to what
section 316.193 actually holds. A proper utilization of those tools will benefit
all.

To illustrate this point I will point out
this example: I have heard many prosecutors represent to the court that a person
convicted of DUI must be placed on probation for a minimum of six (6) months.
That is completely incorrect. There is nothing in the statute that states a
minimum time period of probation that must be ordered on a DUI conviction.
Subsections (5) and (6) of 316.193 simply reads:

(5)     The court shall place all
offenders convicted of violating this section on monthly reporting probation
…

(6)(a) For a first conviction, the
court shall place the defendant on probation for a period not to exceed 1 year
…

Simply put, there is no requirement of a
minimum period of monthly reporting probation that may be ordered by the
court.

If defense counsel, as adviser alerts the client early on in the
case as to the potential consequences faced by a DUI conviction and then also
fairly evaluates the case for the
client with attention to the facts, law and circumstances surrounding the
representation, many of the terms that will be ordered can be completed before
the plea and sentencing in the case. This in turn, could lead to a much shorter
period of probation. 

In the practice of DUI defense, we have all
been faced with the situation where our case really cannot go to trial for one
reason or another. It may be that the evidence of guilt is overwhelming or that
the client just does not want to take the risk of trial for fear of a more
enhanced sentence. Whatever the situation, we realize that in a majority of
cases, the resolution will be brought about by plea
negotiations.

It also seems like there are more and more
clients coming to us now that are facing their second, third or fourth DUIs.
Many of these clients are coming in to see us recognizing that they have a
substance abuse problem. We have an obligation to our clients to view them as
people who need our advice as much in helping them deal with their illness as in
helping them with the legal dilemma they find themselves in. I propose that
these two goals are not mutually exclusive and that we are doing a tremendous
service to the client to assist them with immediate counseling services before a
court mandates it.

While the vast majority of our clients do
not need residential substance abuse treatment when they come to see us for a
first DUI offense, counsel may need to consider recommending entry into DUI
school and its substance abuse evaluation process. I do not always recommend
enrolling in DUI school immediately because if the defense has a good case for
trial, AND it appears that the Formal Review may be won, the client may not want
to enroll in DUI school so it will not appear on an otherwise clean Motor
Vehicle Record.  However, if the chances for success at the Formal Review or
trial seem slim or you have a client that has given you the indication that he
or she will not go to trial, then a recommendation for DUI school at this early
stage may be appropriate. This is where the attorney’s skills as case evaluator become so
important.

There are times however, that we know from
the initial interview that a client is looking at jail time for a given DUI
offense. Maybe it is because of prior DUI offenses, or because of the gravity of
a particular driving pattern or accident; but we know the State and the Court
will be wanting more than the minimums upon conviction and incarceration is on
the horizon.

Florida Statute, section 316.193(6)(k) was
written with this client in mind:

(6)(k) A defendant, in the court’s
discretion, may be required to serve all or any portion of a term of
imprisonment to which the defendant has been sentenced pursuant to this section
in a residential alcoholism treatment program or a residential drug abuse
treatment program. Any time spent in such a program must be credited by the
court toward the term of imprisonment.

It is in that vein that I thought of
putting together a short source list for those attorneys pressed for time or
ideas on residential treatment programs that may be necessary to convince the
Assistant State Attorney or, more importantly, the judge to forego a substantial
period of jail for our clients. This list is
NOT exclusive! There are definitely more programs in the state, but
this might give you a start. Primary source of information: http://www.theagapecenter.com/Treatment-Centers/Florida.htm

Good luck!!