Lets say that you get arrested for a DUI in Seattle. You’re out with some friends at a bar in the Fremont neighborhood (incidentally called the kill zone for the number of DUI arrests coming out of there). You have two drinks over the course of several hours. You decline to answer any questions, perform the field sobriety tests, and take the breath test. However the Officer wrote some stuff in the police report that you dispute and offering an alternative explanation to your DUI case would most likely help you. So do you testify or not?
If your a DUI lawyer having your client testify in a DUI case is a difficult decision. Obviously it is their call, but as a DUI lawyer you can gently nudge them one direction or another, unless you have a very adamant client. So when do you pull the trigger and have a client testify.
First you want to consider how will they come across on the stand. Remember a Prosecutor will get the opportunity to cross examine the client in the DUI criminal trial. And even though Prosecutors have a reputation as not knowing how to cross examine, I think that is unfounded and most I have encountered do a good job. So if the client is not going to come across believable, or if they are going to get upset easily and lose their cool then it might not be a good idea to testify.
Secondly what will the client add to the trial. You always have to weigh the cost of the testimony. If the client can explain certain things that the Prosecutor is trying to use against them then it might be beneficial. For example lets say that the cop testified the defendant weaved within their own lane. Well if the client was text message on their phone and you can show that through the phone records than that would offer an alternative explanation for the driving.
Lastly you want to consider whether the client’s testimony would be credible. Believe it or not when facing a Seattle DUI arrest and possible conviction people will say and do anything to try to beat the charge. And this includes committing perjury on the stand and flat out lying about things. As a DUI Attorney it’s your job to know if this is happening and do what you can to try and prevent it. Knowingly allowing a client to perjure themselves to the Court is not a good thing. In some cases as the DUI lawyer it might be best just to go your separate ways then continue on with the charade.
So in answer to my question I posed in the first paragraph. I might be on board with the client testifying in their DUI case with those set of facts. Assuming they would be able to stand up to the pressure of cross examination, the cost of them testify was outweighed by the benefit, and they weren’t going to perjure themselves and make up some elaborate story that was not believable. Why not, especially if there were no other witnesses other than the cop to the DUI arrest in that Fremont neighborhood hypo I posed.
_ About the author: Matthew Leyba is a DUI lawyer in Seattle. He has been nominated as a Rising Star among Seattle DUI Lawyers by the Seattle Met Magazine, an honor less than 2.5% of all Attorneys receive. He is also rated a 10/10 Suburb Seattle DUI lawyer by Avvo.com