Is It Easier or More Difficult to Defend a Drug-Related DUI Charge?
Interviewer: In regards to prescription medication and DUI, how would you compare them to DUIs attributed to illegal drugs? Are they easier to handle?
Possession of Certain Illegal Drugs Can Result in a Felony Possession Charge
Jerry Novak: They’re usually much more difficult, and I’ll tell you why. First of all, with illegal drugs, if they find the presence of any illegal drugs in the vehicle, that will, also, generally precipitate additional charges.
Depending upon what they find, and in what quantity they find it, it might be a small petty offense for the possession of a small quantity of marijuana, or they may find a quantity of pills or heroin, then all of a sudden, this DUI has become not only a DUI, but the felony possession of some illegal drug.
God forbid, you’re organized, and you take your drugs and you separate them into separate Ziploc bags, which would be indication that you’re possessing with the intent to deliver; as opposed to just you’re an organized person. Now you’ve kicked it up to an even more serious felony, and the DUI penalties pale in comparison.
Generally, drug cases are a lot trickier and as an attorney, you have to be a lot more careful in creating defenses.
Most People Feel Unjustly Charged after Receiving a Prescription Medication DUI
With the prescription drug cases, those are tricky, too, because, again, the client always feels justified in that they didn’t do anything wrong, and they talk their head off when the police stop them, and have them do tests, and take them into custody. They keep professing their innocence, and keep repeating over and over again that the medications are legal.
While Juries May Feel Sympathetic to a Driver Suffering from Ailments and Needing Prescriptions, They Are Instructed to Uphold the Law and Will Return a Guilty Verdict
All their statements are heard by the jury. While juries will feel sympathetic to people, but they will apply the law according to the jury instructions they’re given, and in a lot of cases find those drivers guilty.
Drug Cases Often Have both Sides Utilizing Expert Testimony
Drug cases are much trickier. Additionally, with drug cases, there’s always laboratory analysis to contend with. The state is always going to bring in a lab technician or a chemist. From a defense perspective, we need to find or bring in an expert to attack the credibility of the analysis of the substance that was analyzed, or the substance that was found in the vehicle. Then it becomes what I call the battle of the experts. We have to discredit their expert, and we have to build up our expert.
“I’m Sorry Sir, I Don’t Wish to Answer Any Questions.”
It is important to remember what precedes building a defense to defend a DUI. As I mentioned earlier, it is important to be prepared if you ever encounter the police. Remember the phrase I mentioned repeatedly?
If you don’t repeat it, and you don’t practice it, when you need it, it won’t be there. Then you’ll start answering questions, and maybe it will kick in part way, but it may be too late at that point.
Other Statements Can Indicate a Consciousness of Guilt
I just recently had a case where my client refused all field testing, and refused to answer any questions, but then made unsolicited comments that came back to haunt him. The police officer asked him if he’d take any field tests, and he says, “No. I don’t want to take any field tests. Go ahead and arrest me.”
A consciousness of guilt is a hard thing to counter. We were able to counter it, because I asked my client on the stand, I said, “What did you mean when you said, ‘Go ahead and arrest me?'”
My client said, “Well, it was pretty clear he wasn’t going to let me go, so that was the only thing left. I didn’t do anything wrong, but I knew he wasn’t going to let me go, so might as well get the show on the road, and arrest me, and I can post my bond, and I can get out of custody, and I can defend myself.”
Always Be Mindful of Your Comments to the Police
We can counter a lot of that stuff, but, again, if you just say, “I’m sorry, sir. I don’t wish to answer any questions,” or, “I’m sorry, sir. I don’t wish to take any tests,” he would have been golden.
Or people say, “I’m not going to take that breath test, because I’m drunk,” or, “I know I’m going to score over point oh eight.” Those are really damaging statements, and you think to yourself, “Nobody in their right mind would say those things,” but nothing can be further from the truth. People say all sorts of things, because, remember, as soon as you start drinking, you’re not thinking.