An email came in this morning from Andrew Bluestone of  New York Attorney Malpractice Blog about an “interesting” blog post of the “Five Myths About Defending Accused Drunk Drivers.”  It was just posted on a DUI/DWI lawyer’s pseudo-blog (I say that because it was facially self-promotional and not substantive, even though he called it a blog).

It was interesting indeed, so I tracked it back to its source, which I believe to be a California lawyer, William Head, though he notes that it was reprinted from Trial (March, 1993), the magazine of ATLA.  Yes, an odd place for this piece to be published, unless you consider that it’s a great marketing tool for its author who seeks referral from personal injury lawyers.

The lead lines of the 5 myths are:

• Myth Number 1: Most people accused of this crime are guilty.


• Myth Number 2: Drunk driving is a minor offense.


• Myth Number 3: Any attorney can defend an accused drunk driver.


• Myth Number 4: These cases can’t be won.


• Myth Number 5: Drunk-driving cases are just like any other criminal case.

The obvious purpose of this essay was to promote the use of specialists in DWI over generalists or even criminal defense lawyers who did not specialize in drunk driving cases.  It further sought to argue that it was worthwhile to hire a specialist rather than just give up or give in.

While my initial inclination toward promotional posts tends to be negative, there is a lot here that is worthy of recognition, though it extends beyond its limited purview of drunk driving defense.  Even “Myths 3 and 5,” while discussed specifically as to drunk driving, can be extended to a variety of other types of criminal cases.

We may quibble with some of the language and assertions.  There are a few lines in there that I don’t agree with, and find either misleading or just too facile and self-serving to accept, but on the whole, this is a very good piece.

  One critical myth, worthy of everyone’s attention, is Myth 4, that these cases can’t be won.  This has become a general sense about all criminal cases, and is often the cause of defendants deciding that retaining counsel is a waste of money and that a plea of guilty or cooperation is their only hope.  This belief has become pervasive, and is possibly the most damaging belief to the Constitution. 

By the wholesale refusal to fight, and to challenge wrongful arrests or constitutional violations, we provide an incentive to government and law enforcement to ignore the Constitution and to further curtail our freedom.  But we can’t defend people who have decided that there is no way to win and no reason to retain counsel.  We are here.  We are ready.  Now it’s up to defendants to decide whether to fight or lay down and die.

For criminal defense lawyers, you may want to take a closer read of the 5 Myths and adopt them to your practice.