Pennsylvania DUI Blog : Pennsylvania DUI Lawyer & Attorney : Justin McShane Law Firm : Harrisburg DWI & Drunk Driving Defense

Question #5: Do you regularly speak at legal seminars about advanced DUI issues?

In the legal field, there are many different associations and organizations that hold seminars for those seeking ongoing legal education.  These include state and local bar associations, legal groups, and various state and federal agencies.  We have discussed the importance of advanced and very specific legal seminars and how a DUI lawyer needs to keep up to date by attending them.

Attending these national legal seminars with the elite in the field is great, but being called on to instruct and present cases studies at these national elite seminars is an honor that not many lawyers can claim.  As a proud member of this highly elite faculty, I have had the honor to instruct at numerous seminars and workshops.  Here are some examples from just this past year:

1. Standardized Field Sobriety Test (SFST) Instructor

This training was held in Harrisburg in September 2008 and was attended by over 20 trial attorneys from across the country.  One was from as far away as Maine.  Being well versed in the SFST's is essential for a DUI lawyer because there are many procedures that the police must follow while administering these tests.  If they fail to do so, many times the evidence from the roadside tests get thrown out and jeopardize the ability of the Government to prove its case. 

The attendees of this course were already certified as SFST practitioners and were seeking to be certified at the instructor level (which is the highest level of certification) as recognized by the National Highway Traffic Safety Administration (NHTSA) and the International Association of Chiefs of Police (IACP).  I had the opportunity of hosting and instructing various modules of this seminar and participating in the rating systems that made sure that the attendees were indeed in line with the rigorous standards set forth in this curriculum and achieved proper certification.

2. Advanced Drug Recognition Expert (DRE)

This training was held in Harrisburg in June 2009 and was attended by over 30 lawyers from across the country.  I am honored to have hosted and instructed at this seminar as well.  The presenters were world renowned DUI experts like:

• Steven Obermann, President of the National College for DUI Defense (NCDD)
• Bruce Kapsack, nationally recognized DUI expert and Reagent for the NCDD
• Ron Moore, one of the nation's foremost experts on forensic science and practicing attorney
• Andrew Alpert, recognized DUI expert
• Lenny Stamm, legal author and recognized DUI expert from Maryland; and
• Anthony “Tony” Palacios-lead instructor and former instructor for all NHTSA curriculum at the Georgia State Police Academy

This was a certification course for the attendees to be recognized as DRE's as per the curriculum set forth by the NHTSA and the IACP.  A DRE is someone who is supposedly qualified to determine if someone is driving under the influence of a controlled substance such as Percocet, Oxycotin, Xanax, or Ambien or other prescribed drugs or an illegal substance like marijuana and heroin.  This course also included a practical session in cross examination and the total course was for 40 hours.

3. Traffic Law Practices in Pennsylvania

This is an annual course hosted by Lorman Education Services where I have often acted as the keynote speaker and moderator.  This course has been attended by Judges of Courts of Common Pleas, District Justices, Prosecutors, and Defense Attorneys.

4. Advanced Forensic Blood and Urine Seminar

The top honor I have recently received was when I was asked to present at the once every ten years “Advanced Forensic Blood and Urine Seminar.”  It is a very high level seminar.  The faculty is a “who's who” list of DUI, forensic, and medical experts.  Close to 300 attorneys and legal experts from all over the county and even international dignitaries like AW Jones (pictured to the right with Justin) gathered in San Diego for this extraordinary event.  There was over 46 hours of training and presentations.

I was nominated by Attorney William “Bubba” Head, the premiere DUI lawyer in the country, to present a case where I successfully challenged the reported forensic Blood Alcohol Content and obtained a not guilty verdict for a client whose test showed a .34 BAC.

5. How Defend a Controlled Substances Accusation

This was a local seminar held here in Harrisburg, organized for the benefit of the Dauphin County Public Defender’s Office.  I hosted the seminar.  I instructed the attendees in how to handle a case in which the defendant is accused of drug possession and/or drug dealing.  The topics discussed included how to frame a case for presentation to a jury, solid dose drug testing, the difference between possession and possession with the intent to deliver, and drug influenced driving.

6. Other seminars

I have also been asked to speak at other lectures of a more local flavor and also to the general public.  I lectured on the topic of  “False Positives and Actual Innocence” which was a lecture to the Harrisburg Lion’s Club where I demonstrated a false positive result on a PBT simply by eating bread.  I have also been asked to lecture before the Dauphin County Bar Association on using Technology in the Courtroom.  In the past, I have served as guest crtiquer at the Penn State-Dickinson School of Law and the Central Pennsylvnaia College in the area of Jury Trial advooacacy.  I have also instructed on the Intoximeters Alco-Sensor FST Practioner and Instructor Training on various occasions.  In the past, I have been a featured Special Guest Presenter at the Pennsylvania State Police Academy.

The “take home” message here is very simple.  There is a big difference between a teacher and a student.  Who would you trust when your life, freedom, and your right to drive depend on it?

Question #4: Are you recognized as a DUI expert by your peers?

This question will require some active research on your part.  Thankfully, the internet has made researching an attorney's history and qualifications very easy.  If you haven't heard of it, there is a great website for researching lawyers called Avvo.com. 

Avvo makes it easy to find out about your lawyer from an objective source.  For example go over to Avvo and type in "DUI" for Practice Area and "PA" for state and you will get a listing of DUI lawyers in Pennsylvania.  There are many useful features like client reviews, example cases, legal guides, peer endorsements, and of course Avvo ratings.  Bases on a lawyer's Experience, Industry Recognition, and Professional Conduct, Avvo creates an objective rating for that lawyer.

To answer the stated question, I decided to show you some of the endorsements my peers, DUI experts from across the country have written about me:

From Linda Callahan, author of the authoritative Washington DUI Practice Manual and The DUI Book - Washington State Edition:

I strongly endorse Justin McShane. He is extremely knowledgeable in the science and law involving alcohol-related offenses. He attends many, if not all of the advanced legal seminars in DUI science, forensics and technology. He is aggressive in defense of his clients and he is a perfectionist--he strives for the best result possible in every case.

From the "DMV Guru" Rick Mueller who has over 25 years of experience representing DUI cases. Rick is also an Editorial Consultant for California Drunk Driving Law the most comprehensive reference for California DUI & DMV law:

Having practiced for 25 years and been on DUI listserves since the mid-90's, I have never seen a more knowledgeable, resourceful, and thorough DUI defense attorney. The amazing thing about Mr. McShane is his lightning-quick speed in being able to competently assist other national DWI/DUI lawyers seeking assistance on any related issue. I had to get more storage for all the data this gentleman generates. For a plethora of immense reasons, I whole-heartedly endorse this remarkable lawyer's continuing work and genuine efforts.

From William "Bubba" Head, who is often called the "Greatest DUI Attorney ever".  Bubba is a co-founder and former regent of the National College for DUI Defense, which educates other attorneys in the DUI field.  He is also the author of The DUI Book, which is a standard reference tool by defense attorneys nationwide:

Justin brings a yearning to succeed to the table as a criminal defense attorney. He trains himself and his staff attorneys at the highest level to be ready to attack any flaw in the State's case or any prevarication by a police officer who guesses that Justin will not have found the "smoking gun" in the case. This pride of preparation is not something that can be taught to a trial lawyer --- it is self-generated. Justin has earned my endorsement through hard work and dogged determination to be the best attorney in Pennsylvania.

These are endorsements from the preeminent DUI lawyers in America. Do your research and make sure the lawyer you are selecting is endorsed by DUI experts like these.

Question #3: Do you own and know how to operate the breath test machines used by the police?

In many DUI cases, the key piece of evidence for the Commonwealth of Pennsylvania is the Blood Alcohol Content (BAC) level that is measured by the various breath test machines used by the police.  So wouldn't it make perfect sense for a DUI Lawyer to have expertise in how these machines work and what the common problems are?  Of course it does.  However, it’s alarming that most DUI attorneys do not have even a basic level of knowledge and certainly not the in-depth knowledge needed to challenge the reading produced by the machine.

At the McShane Firm, part of our expertise in the field of DUI, comes from the extensive training and experience we have with the actual machines the police use to administer roadside tests.  We are also well aware of the common problems these machines have and how they can easily produce false positives.

There are also a great many reasons why the “magic number” produced by these machines can over-report someone’s BAC.

Every attorney in this office is a Certified Breath Alcohol Test Technician as recognized by the United States Department of Transportation. We own and know how to operate the following machines:

• Intoximeters FST
• Gas Chromatograph/Mass Spectrometer
• Intoxilyzer SD-5
• Guth Laboratories Breath Test Simulator
• BAC National Patent Analytical DataMaster
• Intoxilyzer 5000EN, Series 66, Series 64
• Intoxilyzer Pre-Arrest Breath Test SD-2

We have also received training in the AlcoSensor, the RBT IV, the Intoxilyzer 8000, Intoximeters ECIR and many other devices.

The breath test reading is often the most important piece of evidence to the prosecution.  If they can prove your BAC reading then they believe most of the work is done.  This is not the case.  If a truly knowledgeable and contentious lawyer is retained a challenge to the result is very possible or even a grant of suppression as the number reported is invalid can occur.  Oftentimes, without the “magic number”, the confidence in the prosecution obtaining a conviction begins to evaporate.

Question #2: Do you actually take DUI cases to trial?

Many attorneys handle DUI cases like traffic tickets.  Their mentality is to process the case as quickly as possible by accepting the first plea offer proposed by the prosecutor in exchange for your guilty plea.  They think good lawyering is convincing you to plead guilty to the mandatory minimum.  To be quite frank, I do not believe this approach is in the best interest in a majority of the citizens that I represent who are accused of a DUI.  Negotiating with the prosecutor is very important, but isn't it better to do so from a position of power?  Once you enter a guilty plea or the prosecutor believes that you are going to enter a plea no matter what, you lose all of that power.  This is why at The McShane Firm, our default position is to take your DUI case to trial.

We take many more DUI cases to trial than any other Firm in Central Pennsylvania and prepare meticulously for them.  We visit the scene of the stop.  We analyze the police reports.  We examine the maintenance records for the testing equipment.  We fight to get every bit of information possible.  We study your medical history.  We collect other medical and scientific data.  We do this all so that we can challenge the prosecution's evidence from a position of knowledge and power.  Many, many times we find serious errors and discrepancies that when brought before the court, result in the charges being reduced or dismissed.  We would have never gotten to this point if we had just plead guilty early on.  The old adage that if you plead guilty, you will be found guilty 100% of the time, is very true.  In other words, if you plead guilty, you will never be found not guilty.
 

One thing is for certain, the average prosecutor who is assigned these cases does not have anywhere near the specialized training that we at The McShane firm, LLC have.  As a result, they generally really don’t want to take the case to a full trial because it’s so time consuming for them in an unfamiliar area of science and of the law.  Pushing for a trial opens up more opportunities for us to try to secure a favorable result.   But simply pushing for a trial is not enough, you need to have a lawyer that has the skills to follow through in the courtroom.  Juries sometimes are intimidated by science which is usually our main defense.  However, a lawyer, like anyone of us, who is experienced in dealing with these matters can simplify these complex areas of science into plain language that the jury can understand.  This can result at them organically and independently arriving at a well-informed verdict.  It is that skill, to explain complex forensic, medical and legal issues to common citizens that results in so many favorable verdicts for our clients.  
 

The famous poet Robert Frost once said, “A jury consists of twelve persons chosen to decide who has the better lawyer. Our ability to communicate with the jury is one of our most important skills.

Of course each case is complex and unique and your freedom, your future, and your livelihood are all tied to this outcome.  That is why it behooves you to take the time to ask these important questions that will help you determine who really is the best lawyer suited to represent you in your case.
 

Question #1: What specialized DUI training have you attended over the past year?

We have discussed the importance of DUI training before and have opted to discuss it here once again to highlight the importance of ongoing legal education in the field of DUI.  There are many highly complex forensic, medical, statutory, procedural, and technical issues involved in DUI cases.  Because of the complexity of these cases,  there are a number of specialized seminars which are attended by attorneys specializing in DUI from all across the country. 

These specialized DUI courses are the key to winning DUI cases.  This in-depth knowledge allows DUI lawyers to challenge evidence in the case and secure a favorable verdict.  A lawyer who spends his/her time in attending advanced DUI training, shows a higher level of devotion and commitment to the clients they represent.  In that same vein, here are the details of the specialized DUI seminars I have already attended this year:

• January-Attended the National College for DUI Defense Winter Session (16 hours of training)

• March-Hosted Industrial Training and Design, Ltd’s seminar “2009 Advanced Issues in Alcohol Testing Seminar” (16 hours of training)

• May-Attended the Maryland Criminal Defense Attorney’s Association seminar “6th Annual Advanced DUI Seminar ‘Everything You need to Know About Medical Defenses and Blood Tests’” (8 hours of training)

• May-Attended and instructed at NCDD/GACDL/Headlines Marketing’s "Advanced Forensic Blood and Urine Seminar" in San Diego, CA (42 hours of training); [it covered topics including: Forensic Metrology; the proper setup and operation of a forensic lab; hospital blood testing; legal blood alcohol testing; venipuncture; urinalysis testing; crime lab errors; hospital lab errors; hospital blood analysis for ETOH and drugs; ELISA, FPIA, CEDIA, KIMS, RIA, EMIT, Vacu-Elute, Headspace Gas Chromatography, Liquid Gas Chromatography, Thin-layer Chromatography, GC-FTIR, Mass Spectrometry, Photo-eclectic analysis; pre-collection errors; collection errors; analysis errors; chain of custody, storage, transportation and delivery related issues; phramacokinetics; pharmacodynamics; solid dose sample drug analysis; postmortem analysis; endogenous versus exogenous alcohol production; intake, absorption, distribution, metabolism and excretion (elimination) of alcohol and drugs; medical conditions that mimic intoxication; health factors and medications that increase expected BAC levels; Widmark Calculations using the Forrest Modification; scientific issues in alcohol testing in blood and other body fluids for forensic purposes; deciphering medical terminology; managing the treatment and emergency records; forensic testing issues for contraband plant material or “designer” drugs; pharmacological aspects of drugs other than alcohol; elimination kinetics (half lives, Michaelis-Menten kinetics); DNA evidence and various analytical laboratory issues]

• June-Attended the National Highway Traffic Safety Administration seminar “Advanced Roadside Impaired Driving Enforcement (ARIDE)” (16 hours of training) and was the first criminal defense attorney ever to achieve this certification

• June-Hosted and co-instructed at the Impaired Driving Specialist’s seminar “Advanced Drug Recognition Expert (DRE)” (40 hours of training)

• July-Attended the NCDD Summer Session at Harvard Law School-Cambridge, MA (16 hours of training)

By the end of the year, I will have attended over 214 hours worth of specialized training all in an effort to offer the best possible advice to the citizen accused. 

It is your best interest to have a highly trained attorney working for you.  So next time you are in search of a DUI Lawyer, ask about their training qualifications and see if they are a true DUI specialist.

This question may seem overly simplistic but unfortunately many people make mistakes early on in their decision-making process.  It begins at the very beginning their mental conceptualization of the definition of "DUI Lawyer.”  So, with that error very on, they end up making the wrong choice.  So let's spend some time on the definition of true DUI Lawyer as it will be the basis of our original question.

To define DUI Lawyer, let's not talk about DUI, alcohol, laws, or even attorneys.  Let's talk about Cardiologists- heart doctors by analogy.  If you had  a minor problem with heartburn you would probably visit a general practitioner, your primary care physician. However, if you or a loved one had a serious heart problem, an arrhythmia for example, you would find a heart specialist-a cardiologist.  But not just any old cardiologist or even the one in the phone book with the best catchiest ad or who is on the internet with a flash intensive website, you would actively seek out the best, the most qualified and the brightest for your particular ailment who has the highest level of education in the specialized field and has the most experience.   Whether you are consulting with your primary care physician (family doctor) or the cardiologist, in both cases you are visiting a doctor who deals with heart problems, but when the problem gets serious you go to the specialist because someone who "also deals with heart problems" just doesn't cut it.

The same holds true for lawyers.  If you have a minor issue, go see a general practitioner.  If you have a serious legal issue like a DUI you need to see a specialist.  We have discussed at length the various consequences stemming from a DUI conviction.  Not only could you be facing, jail time and suspension of your driving license if convicted, you could also lose your job, your occupational license, insurance, and face other stiff financial liabilities.  For most of the clients we represent, the DUI charges they were facing, were the most serious legal issue they had or will face in their entire lives.  Many of them didn't realize how serious the consequences were until they sat down with us for a consultation.

So just as you would got to a heart specialist when facing serious heart problems, you should find a qualified DUI specialist when facing a serious legal issue like a DUI charge.  At that point, an attorney who "also deals with DUI" just doesn't cut it.  You need to see a highly trained, qualified lawyer who specializes in DUI and knows about all of the complex legal, procedural, administrative, medical, and scientific issues that are involved in these cases.

So we have answered our first question, "What is a DUI Lawyer?" and have come to the conclusion that we need to find a DUI expert.  Our next post will take a look at what criteria you need to examine in order to determine whether or not the lawyer you are taking to is, in fact, a DUI expert.