Drunk Drivers Turn to the Bar

By Michael S. Serrill

With toughened laws, fewer deaths and more lawyers

When Donald Nichols began his law practice in Minneapolis in 1971, he did what a lot of struggling young attorneys do: he took on cases that nobody else wanted, including the defense of drunken drivers. "At that time it was the garbage of the law business," Nichols recalls. His intention was to spend a couple of years at this beginner's work and then move on to more respectable projects. But today Nichols is still defending drunk drivers, a specialty that has become a thriving subdivision of the legal profession.

The proliferation of lawyers who take on drunken-driving cases is the predictable result of a national crusade to break the connection between alcohol and death on the highways. That movement has been gathering momentum since 1980, when the first branch of Mothers Against Drunk Drivers (MADD) was formed in California. MADD and its many allies have just had their best year. In 1983, 40 states toughened their drunken-driving statutes. At least nine passed laws mandating jail terms for second offenders; 39 states now have such laws. Eight states, most recently Wisconsin, passed laws raising their drinking ages.

The new laws, plus an increase in police roadblocks and other enforcement tactics, appear to be having an impact. In the first six months after New York State's drinking age was pushed up to 19, 18-year-old drivers were involved in 21% fewer alcohol-related accidents that caused death or injury. According to the National Safety Council, the U.S. death toll in alcohol-related traffic accidents over New Year's weekend was 274, the lowest since 1949. During 1980, the U.S. Department of Transportation reports, 28,000 people were killed in accidents involving alcohol; in 1982 the total was 25,600. Although experts agree that there are also other factors, Safety Council Spokesman Charles Hurley credits much of the improvement to "the increased perception by the public of the risk of arrest from drunken driving."

That anxiety has sent accused drunken drivers flocking to their local law offices. "There's a tremendous boom going on in the field," says Nichols, who publishes the Drinking/Driving Law Letter. "You're seeing it nationally, even in states without stiff penalties. The fear level is up all over." Attorney Reese Joye of Charleston, S.C., notes that a decade ago there were only about 30 lawyers in the entire country who had regular trial experience in drunken-driving cases. Today, he estimates, there are at least 100 in every state.

Many are doing very well, in their bank accounts if not in the esteem of all of their colleagues. One Illinois defense attorney wears a heavy gold bracelet emblazoned in diamonds with "ll-501(a)," the legislative designation of the state's drunken-driving law. Unlike many defendants in other kinds of criminal cases, a large number of drunken drivers are middle class and thus able to pay for a competent defense. Even a simple case now costs a client $500 to $1,500 in most parts of the country. As cases get more complicated, fees inevitably rise. Francis Moore, a New Jersey attorney whose five-lawyer firm handles between 1,000 and 1,500 drunk-driving cases a year, demands a retainer of $3,000 for accused third offenders.

Some lawyers' bills are as high as $5,000.

With such rewards at stake, it is no surprise that legal workshops on drunken-driving defense are well attended. Nichols and Joye, along with two other attorneys and two scientists, have been running one of the most successful. Incorporated under the name Continuing Education Seminars, the group is currently on a 15-city tour; as many as 100 local attorneys attend the one-day sessions, which cost $160. Other popular seminars have been offered by local trial lawyers' groups and the American Bar Association.

"The new laws have made it more difficult to get off scot-free," says Maryland Lawyer Robin Picker, who advertises for clients among drunken drivers (despite the fact that his sister was killed by one).

"But an imaginative attorney can still be persuasive." Agrees Minnesota's Nichols:

"Even though we've had this mandatory jail policy, very few of my firm's clients have actually gone to jail, because we pursue every single avenue." The most common strategies: attack the credibility and procedures of the police or their scientific evidence, especially the breath-testing equipment used to measure blood alcohol content. In most states today, a measurement of .10% is considered proof that a driver is drunk. Defense attorneys across the country have challenged the reliability of breath-analysis equipment, and they have had some success. Starting in 1982, several courts found that police radio equipment could at times affect the accuracy of some models of Smith & Wesson's Breathalyzer. That legal argument lost part of its power eight months ago, when tests for the National Highway Traffic Safety Administration showed that radio-frequency problems are rare and can be avoided with proper safeguards.

Defense attorneys do not apologize for their work, pointing out that their clients are entitled to representation. And some do not hesitate to advocate a bare-knuckles kind of legal gamesmanship. If drivers have the choice, they should "take a urine test; it is notoriously unreliable," counsels Public Defender Richard Erwin of Ventura County, Calif., a member of the Continuing Education Seminars team.

"Otherwise, take the breath test. Whatever you do, don't take the blood test.

It's too accurate." That kind of advice infuriates the anti-drunken-driving activists. "Drunk driving is a multimillion-dollar business for lawyers," says an angry Doris Aiken, founder of Remove Intoxicated Drivers (RID). She has some advice of her own for the new legion of legal specialists. "The best thing a lawyer can do for the drunk driver," she says, "is to tell him to face the music, and not go after a big fee to get him off." -- By Michael S. Serrill.

Reported by Anne Constable/Washington and Magda Krance/Chicago

With reporting by Anne Constable/Washington and Magda Krance/Chicago