PALM DESERT ATTORNEY BREAKS SILENCE AND REVEALS THE SECRETS OF THE "SHIT HITTING THE FAN FACTOR" AKA THE "OY VEY FACTOR"
My articles are inspired by the calls I receive from prospective clients during the week. A few days ago I got a call from a client who was leaving Stagecoach on Saturday when he was hit by an elderly couple running a red light.
The Oy Vey factor kicked in because my client had been drinking at Stagecoach and thus could face a DUI for which we would defend him as a defendant. On the other hand we would need to prosecute an accident claim against the elderly couple's insurance company where he would be a plaintiff. What you do for one is inconsistent with what you would do for the other case.
With respect to the accident claim, a lawyer wants his client to explain to the police with as much information as necessary how the accident happened and that he was not at fault. Thus my client should explain in detail what happened and how they were injured when considering the accident side of the case.
However, changing hats and considering a possible DUI highlights the "Oy Vey" factor. When you represent a DUI client you ideally do not want your client to talk to the police...about anything. The more the arrestee talks, the greater the chance for a cop to observe they were under the influence, slurred speech etc. and let alone smell the alcohol.
A lawyer knows that though the client was not at fault for the accident, eyes will focus on his drinking. Thus a judge or jury may presume the arrested DUI driver was at fault or partly at fault even when the other driver ran the red light. When a lawyer presents a claim against the negligent driver's insurance company, the lawyer for the insurance company will argue "if the drunk driver had their wits about them they may have been able to maneuver and avoid the accident."
This scenario herein creates 3 different matters with which a lawyer must deal. Yes 3, because there will first be an accident claim presented by the drunk driver where he is a plaintiff, against the negligent defendant driver who ran the stop sign.
In addition we have to deal with the legal consequences of the DUI arrest. A DUI itself kicks in 2 issues. One is defending the drunk driver in court and the other is defending the defendant DUI driver in front of the DMV.
When arrested, the DUI driver will have his California Driver's License (CDL) taken under the 'stop and snatch' law and in its place the driver will receive a pink piece of paper that is a temporary license good for 30 days. The arrested driver must request a DMV hearing within 10 days..........not 11. If not timely requested, the CDL will be suspended for 4-5 months on the 31st day. If the lawyer requests a STAY the defendant driver will get a temporary license that is good until the DMV rules on the drinking and driving.
Some crimes are more politically charged than others and Drunk Driving leads the pack. This makes plea bargaining and sentencing hearings very challenging for a DUI defense attorney. There are a lot of politics in DUI's as they are a powerful campaign theme for DA's and judges during elections.
There is not much that concerns Judges and DA's during election time more than a report of a DUI sentence that suggests the court and or the DA were too lenient. This becomes even more serious with a DUI fatality.
With a DUI the defendant is almost presumed guilty until s/he proves him/herself not guilty.
The DUI lawyer must provide documentation to the DA and court to document the justification for a more lenient sentence. The defense lawyer must offer conditions and terms that will protect the DA and Court from a possible repeat offense by the driver. These terms of a plea bargain for probation may include residential treatment, alcohol monitoring, ankle bracelets and ignition interlock devices.
Hopefully these additional penalties will help justify, protect and buffer the potential backlash against the judge or DA. No elected official wants to be around when the Shit Hits the Fan Factor comes into existence and they have to yell "oy vey".