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

Do You Meet the Requirements for a PD in Your State?

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.

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