Arrested for a DUI: Should I Use a Public Defender in California?

Do You Meet the Requirements for a PD in California?

A public defender (“PD”) is a court appointed attorney, paid by the state of California, and assigned to represent indigent criminal defendants facing jail time. In other words, if you cannot afford a lawyer for your DUI case in California, the court will appoint and pay for one (you don't get to pick). 

This table of California public defenders will help you find information about public defenders in your county.

Here are four things to consider before using the services of a public defender:

  • Do you meet the financial requirements? There is no fixed amount of income or assets that makes someone eligible or ineligible for public defender representation in California, except that persons receiving needs-based government assistance (such as SSI, TANF, and other payments) are usually eligible. Typically, you must go through a screening process – that is, filling out application forms indicating income and expenses with the court. In some cases, you may be required to show estimates of fees for private representation.
  • Are you concerned about your DMV hearing? A DUI results in two sets of hearings and penalties: (1) an administrative DMV hearing regarding the status of your driving privileges (the result may be license suspension or revocation); and (2) a court hearing to determine your guilt or innocence regarding the criminal DUI charge (the result may be fines and/or jail time). In California, the arresting officer is required to forward the notice of suspension or revocation form and any driver license taken into possession to the DMV. The DMV automatically conducts an administrative review that includes an examination of the officer's report, the suspension or revocation order, and any test results. If the suspension or revocation is upheld during the administrative review, you may request a hearing to contest the suspension or revocation. A private attorney can represent you at the DMV hearings but a PD will not (because the DMV hearing has no potential for jail time). Because DMV hearings are held prior to court hearings, it may benefit you to have an attorney present at the DMV hearings to preview the evidence to be used against you at trial.
  • Are you concerned that your lawyer is on the government payroll (or limited by a legal cap)? All attorneys, whether private or PD, are ethically bound to diligently represent their clients. That said, there are practical realities that can affect representation. For example, PDs are usually overworked and understaffed, and often too busy for the regular client meetings and hand-holding sessions provided by private attorneys. In many jurisdictions, there are two types of PDs: those that work for a pubic defender on a salary; and private attorneys (sometimes referred to as “panel attorneys”) who are paid a fee to provide public defender assistance. Panel PDs may be bound by fee caps – that is, if the fee hits a certain amount, the attorney must either reduce services or seek permission for additional compensation. Because fee-based private PDs are dependent on the government for their livelihood, some defendants are concerned, rightly or wrongly, that plea deals may be made for expediency – that is, the attorney doesn’t want to risk biting the hand that feeds him. 
  • Will you plead guilty or do you intend to fight it? Understaffed, poorly-paid PDs may operate under budget quotas – only permitted to bring a certain number of cases to trial (and plea-bargaining the rest). If you plan on pleading guilty (for example, the evidence is conclusive and your BAC is above .08%), this may be fine. After all, the PD is experienced at making deals. But if you want to fight your DUI, you're probably better off with a private attorney as PDs may be selective about which cases go to trial. In general, if you’re looking for a strong, persuasive advocate who provides personalized attention, you may be better off with a private attorney.
  • California’s Wet Reckless Rule. Keep in mind that California permits bargaining down to a “wet reckless.” Cal. Vehicle Code § 23103.5 allows a defendant to make a plea of Nolo contendere for reckless driving along with a notation that alcohol was entailed. Because of public pressure, most prosecutors are selective about permitting such plea bargains. They are typically made for first offenses where the driver’s BAC is borderline (or slightly below the .08% requirement), and where there was no property damage or personal injury resulting from the incident. 

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