An Interview with a Former DUI Prosecutor

The Following is an Excerpt of a Recent Interview with Ellis B. Klein, Esquire

Interviewer: You started your career as an Assistant District Attorney; how did you enjoy that experience?
Ellis: I absolutely loved being a Prosecutor. As a new lawyer, being an Assistant DA is by far the best, and scariest, experience you can have as a new attorney. I was in court literally every day, litigated thousands of cases and gained invaluable experience. Being a DA is a lot like a trial by fire – sometimes I was handed a case 5 minutes before the trial was set to begin and expected to try the case before a jury. Being a DA teaches you to think on your feet and be ready for anything that comes your way. I enjoyed my time with the District Attorney's office immensely and it has prepared me well for my job as a defense attorney.

Interviewer: How does your past experience as a DA help you as a defense attorney?
Ellis: My past experience has been invaluable to me as a defense attorney. My experience allows me to look at a case from both sides to look for all of the little "tricks" that the prosecution uses to gain convictions. Simply stated, my past experience put me in a very unique situation which allows me to get the best results for my clients.

Interviewer: Who is the typical person, if any, who gets arrested for DUI?
Ellis: It can really happen to anybody. I have represented teenagers and I once represented a client in his 90's who was pulled over for a DUI. It used to be that mainly males were arrested for DUI, but over the past several years I have seen a large increase in females getting arrested for DUI.

Interviewer: Is there a particular back story you hear from a lot of DUI arrestees, such as, "I only had two beers."?
Ellis: Most of the back stories I hear are very similar. Nobody usually intends to go out, get drunk, drive, and get pulled over or get into an accident. Most people say: "I was at a restaurant", "I was at sporting event" or "I was at a wedding and I had a couple of glasses of wine, a couple of beers." Most of my clients come in and are obviously very upset and concerned about what is going to happen to them. Most say "I made a terrible mistake. I'm scared. I don't know what is going to happen to me. Please help me."

Interviewer: What was your favorite case as a defense attorney?
Ellis: There are so many, but my all-time favorite is when I successfully defended the "Bread Squeezer", a bizarre case that received international attention. It was a sensationalized case where my client was accused of felony charges for vandalizing bread and cookies in one of the local supermarkets. The case was featured on every local TV station, local and national newspapers, Court TV and Time magazine. It was on the BBC and CNN Headline News. It was one of the strangest cases in county history, and it was especially nice for me because I got to try it against my former boss and mentor, who is now a judge. The jury wound up acquitting the client of all criminal charges. It was a once in a lifetime trial and it also happened to be my very first jury trial as a defense attorney. So my first jury trial as a defense attorney was my most memorable case.

Interviewer: I will bet you have seen some humorous things happen in court.
Ellis: One of the funniest things I ever saw in court was before I was even a licensed lawyer, when I was in law school and interned for the District Attorney's Office. The first week as an intern we got to shadow an experienced DA at Preliminary Hearings. We were observing a hearing when the defendant fell asleep at counsel table and began snoring loudly. At the end of the hearing, the defense attorney stood up to argue the charges and said to the judge: "Your Honor, I was going to say the defense rests, but appears that he has been resting for quite awhile now." It was at that point that I thought to myself, "I'm really going to like this job."

I've seen some unbelievable things that totally backs up the saying that truth is stranger than fiction. That is one of the reasons why I love my job.

Interviewer: What is the highest blood alcohol level you ever dealt with?
Ellis: The highest level I ever prosecuted was someone whose blood level was .48%, basically one drink away from being in an alcohol induced coma. I recently represented a first time offender who was a .43%. She was a really nice woman who had a problem. We got her into treatment, and the District Attorney gave her the ARD program and she did not have to go to jail. Luckily, the blood alcohol level does not affect ARD eligibility.

Interviewer: Are the people you see mostly first-time offenders?
Ellis: Well over 50% of my cases involve first-time offenders; people who have never in their lives ran afoul of the law. Most are very nice people who made a bad decision to drive. Luckily, Pennsylvania has a program for first-time offenders, for people who have not been in trouble before and did not harm anyone as a result of their actions. I have also represented a defendant who had 10 prior DUI cases.

Interviewer: What is the first time offender program called?
Ellis: The acronym for the program is A.R.D. It is short for Accelerated Rehabilitative Disposition. Basically, it is a pretrial program that enables the charges to be dismissed after the person pays a fine, goes to classes and completes community service. It gets people out of the charges without a conviction and without having to go to jail. People who are approved for ARD do not have to plead guilty or admit to anything and, assuming they comply with all of the conditions, the charges are eventually dropped. Once the charges are dropped, the record can be expunged so that any fingerprints, the mug shot and the individual's rap sheet are destroyed.

Interviewer: Is Accelerated Rehabilitative Disposition available to all 1st time DUI offenders?
Ellis: It is available to first-time offenders who, basically, have never been in trouble in their lives, who did not hurt anybody as part of this incident, and who are properly licensed and insured. It is solely up to the DA to determine who gets ARD and who does not. The judge has no say as to who gets into this program. As a DA, I approved well over 1,000 people for ARD and, as a defense attorney, I have assisted another 1,000 people gain entry into ARD.

Interviewer: What happens young people under age 21 who are charged with DUI?
Ellis: I see a lot of young people getting pulled over for DUI and the consequences could potentially affect them for the rest of their lives. The law says if you are under 21 and the BAC is .02% or greater, then you are under the influence. If found guilty, there is a mandatory minimum of two days in jail, a one-year license suspension and a criminal record that would remain until age 70. Hopefully, ARD is available to the minor in these situations. A lot of parents are concerned about their children having a criminal record for the rest of their life. Usually, if they get ARD, the charges will eventually be dropped and the case will be expunged.

Interviewer: Can people get in the ARD program by themselves or is it better to have an attorney to help them get into the program?
Ellis: Anyone can represent themselves in Court for anything from a traffic violation to Murder, but it is always better to have an attorney to look after your rights. There is a famous saying that "Anyone who represents themself has a fool for a client." I always compare it to being a mechanic. I am not a trained mechanic. If my car breaks down, I know that if I try to fix it I am going to do more harm than good because I have no idea what I am doing. If you don't know what you are doing, you need to hire someone who does.

Interviewer: Can an arrest for DUI become public knowledge and printed in newspapers?
Ellis: Yes, a lot of times it does wind up in newspapers in some of the suburban counties. In some local papers there is a daily police log which lists recent arrests. The local papers do publish the names of some individuals admitted into the ARD program and who plead guilty. The case is public record and the newspapers are permitted to publish this information.

Interviewer: When a person decides he wants to retain a private attorney, what traits should he look for to determine if he is speaking to the right person?
Ellis: Experience is the most important factor, by far; how long this attorney has been practicing and in particular, where he practices. It is very important that you obtain a local attorney familiar with all the local rules and procedures. It is the same law throughout the Pennsylvania, but every county administers it differently. You need a lawyer who has an excellent relationship with the local police and prosecutors in order to get the best results.

Interviewer: As a former prosecutor, what in your opinion are characteristics that make a good defense attorney?
Ellis: When I was a DA, a good attorney was somebody that I trusted, who had a good reputation as being a "straight-shooter." Attorneys that I knew and respected generally got the benefit of the doubt as opposed to an attorney that I did not know or who I did not necessarily trust.

Interviewer: Why is it so important to retain a local attorney?
Ellis: As a defense attorney, you have to be prepared for all scenarios. You have to know the judge and what that particular judge's tendencies are to get the best results. You have to b aware of programs that are specific to that particular county, as every county handles it differently.

Interviewer: Once someone is arrested and charged with DUI, what consequences do they face?
Ellis: Pennsylvania takes DUI very seriously. It is a misdemeanor in Pennsylvania if you get arrested for a DUI. In a lot of other states, DUI is only a traffic offense. However, in Pennsylvania you are fingerprinted. You get a mug shot. You get booked. You have a rap sheet. The consequences could stick with you for the rest of your life. If convicted and the blood level is above .10%, there is mandatory jail time that the judge is required to impose which can range from a minimum of 2 days for a first offense to a one year minimum for a third offense. There is at least a one-year license suspension and a criminal record.

Interviewer: A lot of people say, "Well, it is my fault. I did this and I just want to get it over with and plead guilty." What is wrong with this approach?
Ellis: People come in and say to me, "I'm guilty." My response is that I am not concerned if you feel guilty, but rather, whether the police can prove that you are guilty. As far as pleading guilty, I tell clients, "You might not have to. You might be eligible for ARD;" "You might have a defense and we can go to trial and fight the case." An experienced criminal defense attorney looks at all of the evidence, requests discovery and determines exactly what evidence the Prosecution has against the client before making a decision. I will never tell somebody to plead guilty unless I am 100% sure that there is no other alternative.

Interviewer: What happens to the person's driver's license?
Ellis: If the client gets ARD, there could be a short license suspension. If the BAC is between 0.10% and 0.16%, there is a mandatory 30 day suspension. If the BAC is above 0.16%, or drugs are found, there is a mandatory 60 day suspension. There is no loss of license for a BAC below .10%. If the individual is under age 21, there is a 90 day suspension.
If the motorist is convicted and it is a first offense and the BAC is over .10%, there is a loss of license for one year. There is a "bread and butter" license available after serving 60 days on suspension, and if approved, it allows the individual to drive to and from his place of employment. For a second offense or greater, license suspension is anywhere from a one year to 18 months, based on blood level and priors. There is no occupational (bread and butter) license if it is a second offense or greater.

Interviewer: People say, "The police did not read me my rights. The whole case should be thrown out." How does Miranda work, and when do Miranda rights apply?
Ellis: Almost every client says to me, "The police officer did not read me my rights" and I think that this is a product of T.V. and Hollywood. Everybody thinks the minute they are arrested they have to be read rights. This is simply untrue. Miranda warnings - the warnings where police have to advise suspects of their right to remain silent, the right to obtain an attorney, etc. - only apply when someone is in custody and are asked incriminating questions. With most DUI cases, it really does not matter what the motorist has to say, as far as answering questions. This is because the case is based on the officer's observations and ultimately on the testing results. If you answered questions and Miranda should have been given, the most that can happen is that the statements are thrown out. The case stays open, and they still prosecute the case based upon the officer's observations and tests. However, they would have to do it without your statements.

Interviewer: Between a breath and blood test, which one is more commonly given and where is it given?
Ellis: The law says it is up to the police officer, and not the motorist to determine what type of test they are going to request. There are three types of tests: blood, breath or urine testing. Blood testing is the most common in our area. Very few police departments are using the old-fashioned big breathalyzers back at the station because they are not as accurate as blood.
Initially, a lot of motorists at the scene are given what is called a PBT, preliminary breath test. It looks like a little pen you breathe into. It is part of the field testing, and it is not a very accurate device. It gives the officer a rough idea of the amount of alcohol in your system. The law says that a PBT is not evidence against you because the device is not accurate enough to be used in court and I have seen variances between the PBT and the blood tests as much as .05%.

Interviewer: Are there any penalties if you refuse to take a blood, breath or urine test at the police station or hospital?
Ellis: There are very harsh penalties for refusing chemical testing. In Pennsylvania, when you are given a driver's license you automatically agree to chemical testing if a police officer suspects you are under the influence. The police officer does have to read you certain rights before you make the decision to submit to the test. If you refuse, there is a one-year suspension for refusing which is in addition to the suspension for the DUI. Additionally, refusals are automatically deemed to be in the highest level of intoxication, the third tier. There is an appeal process where the motorist can appeal the suspension in which the police have to prove at trial that they read the motorist the appropriate rights when requesting the test. These license suspension appeals for refusals are difficult to win.

Interviewer: How often are you able to improve someone's situation when they hire you?
Ellis: It depends on the case. Some cases there is just no defense and we focus on damage control – trying to keep the client out of jail. In these situations, at least I can give clients peace of mind because I can properly predict what is going to happen to them based on my past experience. At least they know what to expect so that they can prepare for it. I have been doing this long enough to usually know what is going to happen far in advance. In other situations, we go to trial and fight the case or if it is a first offense, hopefully the client is given ARD. However, it always helps to speak with an expert. If you do not know what you are doing, you need to find somebody who does. That is the bottom line. That goes for any field, whether you are looking for a mechanic, plumber or a criminal defense attorney.

Interviewer: Can you tell a potential client what probably will happen?
Ellis: Yes, with a great deal of certainty, I can. When you handle several thousand cases, it becomes second nature. With your attorney, you certainly can and should ask questions. Some of my clients when they call with a question apologize for bothering me. I tell them not to apologize – I work for them and that is what I am here for.

Interviewer: What about clients who have more than one offense in their past?
Ellis: If my clients have more than one offense in their past, I usually recommend that they obtain treatment as soon as possible. Certainly it helps our case if the client seeks immediate counseling because the judge always assumes if there is more than one prior, it must be due to an alcohol problem. The clients who get into treatment such as inpatient or outpatient counseling and also attends frequent Alcoholics Anonymous meetings are the clients who generally get breaks at sentencing such as house arrest.

Interviewer: Finally, what advice would you give people who have been arrested for DUI?
Ellis: The best advice is to immediately speak with an experienced local defense attorney. Most attorneys, like myself, offer free consultations. You must be comfortable with your attorney. Seek a second opinion if you are not sure, but be aware of attorneys who tell you what you want to hear. Ask a lot of questions and then ask some more questions. Research the attorney's reputation on the internet on sites like Avvo.com where you can read former client reviews of the Attorney. Choosing the right attorney could be the most important thing you may ever do, so do so wisely.

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