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MADD AND MADDER
Today’s DUI Defense Bar Is More Focused and Aggressive Than Ever Before

BY TERRY CARTER

The tremendous success of Mothers Against Drunk Driving and other groups in their campaigns for tougher drunken driving laws and increased law enforcement has led to an inevitable backlash.

It comes in the form of a highly specialized, sophisticated and aggressive defense bar that specializes in representing drivers charged with driving under the influence.

Consider the career of Miami-based Richard Essen, who for more than 20 years did a wide range of criminal defense work after starting his law practice in 1963. Then, in the mid-1980s, he began to specialize solely in DUI defense. His small law firm rapidly grew to 18 lawyers, doing DUI work exclusively.

DUI was hot, thanks largely to MADD, which launched its highly successful campaign in 1980. Tougher laws and stepped-up enforcement brought a 41 percent decrease in alcohol-related traffic deaths between 1980 and 1994, with a flattening out of the numbers since then.

Toiling in what had been a side-dish of a practice area, Essen was catapulted onto the national stage, interviewed on Donohue, 60 Minutes, Geraldo, the morning shows, the Wall Street Journal and dozens of other media outlets. His firm was handling 3,000 cases a year.

Now, he’s down to seven lawyers, and the caseload has dropped. Not that the specialty has dried up. "There are just so many attorneys out there specializing in DUI cases," Essen says.

But Essen is doing just fine, charging $10,000 for a first-offense DUI case. And he claims a success rate of better than 99 percent in this challenging mix of law and science. Some DUI lawyers compare their work to tax and bankruptcy practice because of the demands in keeping up with changes in the law.

"That’s true, and particularly so in the past five or so years," says Steve Oberman, a Knoxville, Tenn., lawyer who heads the DUI Advocacy Committee for the National Association of Criminal Defense Lawyers. "A lot of lawyers across the country have started devoting their practices solely to DUI defense."

It tends to be a passionate bar. Many believe there is too much reliance on the subjective determinations of often ill-trained police officers and blood-alcohol tests that are often questionable. And these lawyers make their living trying to prove it.

"Ours is a unique field because a lawyer’s job is usually to blow smoke and create reasonable doubt," says Lawrence Taylor, one of California’s more successful DUI lawyers. "Defense attorneys are expected to do that, but what I find nice about DUI work is that we get to wear white hats–though maybe not in the eyes of a judge or jury or MADD. But we’re trying to find the truth."

In 1995, Taylor and some other prominent DUI lawyers around the country formed the National College for DUI Defense Inc., based in Houston. The mission statement for the 400-member group, which holds an annual seminar at Harvard Law School, declares that more innocent people are convicted of DUI than any other crime.

At Taylor’s Los Angeles-area firm, specialization goes beyond the eight lawyers. The firm’s Web site, www.duicentral.com, is loaded with information and links concerning DUI cases. The staff includes:

• A forensic toxicologist who is a former supervisor of DUI testing for the Los Angeles County Sheriff’s crime lab.
• A former hearing officer for the California Department of Motor Vehicles.
• A former 20-year California Highway Patrol officer.
• A former Santa Ana police officer who was on that department’s DUI Task Force.

"I expect that all this is in response to the laws that have been changed over the past 20 years, thousands of laws to help in the fight against drunk driving," says Karen Sprattler, national policy director for MADD. "And I imagine lawyers are able to take advantage of that as a lot of people are exposed to the courts for the first time and need assistance navigating the law.

"Obviously these people have rights, but we’re concerned that when some of these lawyers ‘help’ their clients beat DUI charges they may be removing the opportunity for them to get help for chemical dependency."

DUI lawyers argue in turn that most DUI cases involve first offenders. Many involve borderline blood-alcohol levels measured by tests that are often not accurate, they say. "When someone obviously has an alcohol problem, we won’t take the case unless they commit to long-term treatment," says Essen, the Miami DUI lawyer.

Still, the DUI bar tends to be combative. Atlanta lawyer William C. Head, another founder of the National College for DUI Defense Inc., wants only the most aggressive lawyers linked to his Web site which offers referrals to DUI lawyers in various states.

"Most members of the college regularly try cases rather than plead guilty," Head says. "But all the people on my Web site are handpicked and have reputations for fighting and winning."

©2002 ABA Journal

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