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What Public Defenders Say About Representing DUI/DWI Cases in Minnesota

“…our clients get screwed compared to clients represented by private counsel…”
         -Anonymous Minnesota public defender

Public defenders provide a great service to people and the State of Minnesota, but . . . as you’ll see by continuing to read this page of information, they do not have total freedom to defend their clients in certain circumstances.

What does this mean to you?  Unfortunately, it could mean that you don’t get effective representation at all for DUI/DWI.

You see, one of the questions I am asked most often is “Why shouldn’t I just have the public defender represent me in my DUI/DWI case?” 

Perhaps it’s best to let the public defenders themselves tell you in their own words.

The following recent exchange is taken from a Public Defender’s blog containing posts by public defenders from throughout the country.

It’s all about DUI/DWI defense (or lack of it) by public defenders in Minnesota.  Although I have highlighted and changed the color of some of the print for emphasis of important points, these posts and responses really are from the public defenders themselves.  I have not altered the content of their posts in any way.

Wednesday, August 30, 2006

Topic: Ineffective assistance?

“Our public defender agency is guided by state statute on the types of cases we handle. We represent on any criminal matter, juvenile delinquency cases, child in need of protection and services (CHIPS), and termination of parental rights (TPR) cases. On the latter two types, we represent children ten or older and any parent who financially qualifies for our services. The latter two cases are also the only civil matters we handle.

There are two other types of civil cases that, because we don't handle, our clients get screwed compared to clients represented by private counsel (and this, of course, is coming from a guy who vehemently believes that we provide better (not just "as good") service as private counsel.

We do not handle implied consent matters to contest a DUI-related driver's license revocation. These are civil matters and are handled in a different court than criminal matters. We also do not handle civil forfeiture actions related to the seizure of property or cash as the result of a drug, DUI, or fleeing-type offense.

I don't feel right breaking the news to my clients about "we don't handle" these two types of cases. It feels like saying "that's our policy" without any good reason behind the policy. The truth is that we don't do it because we are not funded to do it. The effect, for example, is that our DUI representation is deficient compared to that provided by a good private attorney who knows what they're doing on these implied consent matters.

At the implied consent hearing, the issue is whether there was probable cause for the officer to make a DUI arrest. If not, then the driver's license cannot be suspended. This is a big deal for many reasons. First, there is a $680 reinstatement fee for DUI-related suspensions. Second, the DUI-related license suspension can be used to enhance future DUI charges to a gross misdemeanor (maximum one year jail) and/or a felony (maximum seven years prison) even if the defendant is acquitted on the criminal DUI case.

The implied consent hearing also gives the lawyer a shot at cross-examining the arresting officer which is obviously valuable discovery for the criminal case in preparation for suppression motions or cross at trial.

But we don't do them and I'm torn. It makes our advocacy for our clients in DUI cases not as good as it could be. On the other hand, how can we do them when we aren't authorized to do them and our agency isn't budgeted to handle these things?

The civil forfeiture matters are similar in that if an officer believes there is probable cause that a drug crime has occurred and the value of the drugs is $25 or more, the officer can seize for forfeiture any property or cash associated with the incident. The client has a very short time period from the time of the arrest to give notice of intent to challenge these forfeitures. Sometimes that time has ran even before the criminal case is charged. The law is set up to make it easy for law enforcement agencies to enrich their coffers. The money and property are then used for drug buys, to pay informants, and is something that the public generally doesn't know much about.

This has come into play, for example, when a client is pulled over on a Harley, taken into custody on an outstanding warrant, searched, and a gram of meth is found on the Harley-rider. A gram is usually valued at about $100. This means that it is very likely the officer will seize the Harley and give notice of intent to pursue a forfeiture of the Harley. But because the prosecutor sometimes waits until receiving a confirmed positive test of the meth at the crime lab, the case may not be charged for weeks or months. By the time the criminal case is charged and the defendant gets around to hiring a lawyer or qualifying for a public defender (now that they no longer possess a Harley), the time to challenge the forfeiture has run. Even if our agency is on the case before the time to challenge the forfeiture has passed, we cannot litigate that issue.

It is frustrating. The forfeiture statute is really good business for the state. I see the use of it increasing in the future. I also think lawmakers will come up with more collateral/civil consequences (such as a $680 "fee" to reinstate your license after a DUI suspension) that really are part of a criminal action but evade litigation/challenges because the citizen is not legally entitled to counsel simply because these matters are classified as "civil matters."

I can't tell you how many people have looked at me like I'm crazy when I explain that their forfeiture is a "civil matter" or their license suspension from the DUI arrest is a "civil matter." I am sure I seem like "one of them" to those clients. Just another lame government bureaucrat saying, "I'm sorry, it's outta my hands. It's our policy."

It really sucks.