When a person is arrested for drunk driving in Iowa they want to talk to a lawyer. They do not traditionally stop to consider the fact that their business lawyer does not practice drunk driving defense. They simply want to talk to a lawyer.
There is no area of practice of law that is immune from the dreaded 2 a.m. phone call. Real estate, tax, family law, probate, business law, and personal injury practitioners will eventually be woken up to the voice of a panicked unfortunate client wondering “what do I do?” Many lawyers that are unfamiliar with the OWI process wonder the precise same thing when they are on the other end of that call. They attempt to help out the best they can because it is a friend, family member or good client. They “wing it” based upon what they have always heard should be done.
The purpose of this article is to assist the non-OWI defense practitioner in knowing precisely what to do in this situation. Here are 5 simple general rules of thumb to help guide the legal practitioner not versed in drunk driving defense with dealing with the 2 a.m. phone call.
Rule 1: Felony Charge = NO consent. If there is an accident resulting in death or even the chance of a serious injury, there is absolutely no reason for the driver of the vehicle to consent to chemical testing. Other felony charges can include OWI with a child in the car (Child Endangerment or Neglect of a Dependent), Eluding or OWI 3rd Offense. In these situations the stakes are too high to voluntarily provide evidence that could potentially incriminate oneself. If law enforcement has a sufficient basis, they can always obtain a search warrant. Make them put it in writing and present it to a judge. If client insists they are 100% completely sober and have no controlled substances in their system, make sure they understand the consequences of being wrong in that situation. You provide the advice, they live with the consequences.
Rule 2: Know the Consequences. Know the consequences to the client’s decision to submit to or refuse chemical testing. Sentencing alternatives and work permit eligibility depend on whether client consents or refuses. Know the consequences before giving them advice. Click here for quick reference resource spelling out the consequences.
Rule 3: Client Does Not Talk. Questions should be asked in “yes” or “no” format. Statements voluntarily made in presence of law enforcement by client may be admissible against them. Don’t let them talk any more than necessary. Ask for privacy!
Rule 4: Assume What you Say Will Be Overheard by Law Enforcement. Chances are, the arrested person has their cell phone volume turned up as loud as it goes and the officer is sitting right there. If you tell the client “we are going to stall” or “tell the officer I am on my may, but I’m not coming down,” expect that will be overheard and will not help you client in the long run. Provide needed advice and assistance but don’t play games. Again, ask for privacy.
Rule 5: Know Client’s Rights. If you do not know their rights, how can you advise them correctly? GRL Law provides a quick reference resource here.
Following these 5 basic rules can make the difference between maximizing the possibility of a favorable resolution for a client and a client finding themselves in prison or losing their job. Adverse consequences may happen to a client even with the soundest of legal advice, but no lawyer wants to be blamed for providing unsound advice. Remember, when an attorney provides legal advice even outside of their area of expertise, they are still bound by their ethical obligation to provide competent representation. If all else fails, the lawyers at GRL Law are available around the clock. We are standing by to help. Sometimes the best advice for a client is to contact lawyers that specialize in that particular field of law. At GRL Law we specialize in defending drunk driving cases.