A public defender (“PD”) is a court appointed attorney, paid
by the government, and assigned to represent indigent criminal defendants
facing jail time. In other words, if you cannot afford a lawyer for your DUI
case, the court will appoint and pay for one (you don't get to pick). 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, 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
with the court.
- 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). A private attorney can
represent you at both procedures but a PD will only represent you at the court
hearing (because the DMV hearing has no potential for jail time). Because DMV
hearings are held prior to DUI trials, it may benefit you to have an
attorney present at the DMV hearing 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. (Note: an attorney’s presence may
also have little effect in states that prohibit plea bargaining for DUIs.) In general, if you’re looking for a strong,
persuasive advocate who provides personalized attention, you may be better off
with a private attorney.