8.1 Client Preparation

• Library: Defense of Serious Traffic Cases in Virginia (Virginia CLE) (2020 Ed.)

8.1 CLIENT PREPARATION

8.101 Generally. The primary goal for any defense attorney is to obtain the best possible result for the client. Despite counsel's best efforts, some clients will end up convicted of DUI or other serious traffic offenses. To produce the best possible result for the client, trial preparation should include the creation and implementation of a client-specific sentencing strategy. Sometimes, lawyers devote the bulk of their case preparation time, energy, experience, and research on attempting to convince a judge or jury to find the client not guilty, allowing little time to prepare for sentencing in the event the client is found guilty. It is imperative for defense counsel to formulate a plan to attempt to mitigate the sentence imposed and prepare for post-conviction consequences. Planning for sentencing is a seminal part of trial preparation. In formulating a sentencing strategy, counsel should determine and consider each client's unique circumstances and, before trial, be willing to use ethically creative attempts to resolve a case in the client's best interest.

Assisting a client to resolve driving-related problems before trial is an important trial preparation strategy. An example is a client charged with driving with a suspended license. First, counsel should determine the reason for the suspension. It may be possible to have the client's driver's license reinstated before trial. For instance, the client may be eligible for reinstatement due to elapsed time. In that case, the payment of a reinstatement fee may be all that is required for reinstatement. Generally, prosecutors and courts tend to view pretrial reinstatement of driving privileges favorably. A prosecutor may, depending on the client's prior convictions and the circumstances surrounding the immediate charge, seek leave from the court to amend a charge of driving with a suspended license to driving without being licensed or a traffic infraction for driving without a license in possession. In some jurisdictions, courts, on their own initiative, may reduce the charge or lessen the sentence imposed when a client reinstates his or her driving privileges before trial.

Accident-based charges are another way counsel may advise clients to be proactive before trial to seek a resolution favorable to the client. Resolving

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the issue of damages owed to third parties may contribute to a favorable pretrial negotiation as to the underlying charges, especially when the damage incurred is limited to property damage. ¹ This strategy may pay dividends, even if the case goes to trial. A victim who is treated "fairly" by the client has a greater potential of being a friendly witness.

8.102 Client Goals. Clients' needs differ. Attorneys should ascertain and consider the client's needs in determining a realistic case goal for the client. For instance, a client who must drive to keep a job may be willing to trade a higher fine or some amount of jail time to be eligible for a restricted driving permit. Alternatively, a client who has access to public transportation may be willing to risk a trial for DUI and first offense refusal. This client may be more willing to take the risk of a twelve-month license suspension, with no ability for restricted driving privileges for the first thirty days, for a conviction of first offense refusal to avoid a DUI conviction than a client who must have access to a restricted license sooner.

Fully understanding the client's needs also gives an attorney the ability to...