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

State and federal law generally guarantee the assistance of a lawyer to all defendants in criminal cases. Because driving under the influence (DUI, also called "DWI") is a crime, anyone charged with a DUI has the right to be represented by an attorney. If the defendant can't afford to hire an attorney, the court will appoint a public defender or a private lawyer at the government's expense. If a person can afford a lawyer, then they won't be eligible for a court-appointed attorney and will have to hire one.

What Is a Court-Appointed Attorney?

A court-appointed attorney can be either a public defender or a private attorney who's appointed by the court (and paid for by the government) to represent the defendant. Many jurisdictions have a public defender's office that has a team of lawyers who represent people who can't afford a lawyer for their criminal case. Public defenders handle only court-appointed cases. Private court-appointed attorneys, on the other hand, typically have a legal practice with paying clients but also accept court-appointed cases.

In both situations, the attorney is paid by the government. Public defenders' offices might have their own investigators on staff, but private court-appointed lawyers generally can hire investigators at the government's expense. A defendant with either type of court-appointed lawyer usually will have access to interpreters and expert witnesses at the government's expense, if it's reasonably necessary to defend the case.

When Is an Attorney Appointed?

At the first court appearance (usually the arraignment), the judge typically advises defendants of their right to an attorney and asks if they want a court-appointed lawyer. The defendant can opt to hire an attorney or request that the judge appoint one. Though generally not advisable, defendants also have the option of waiving the right to counsel and representing themselves (called "pro se").

An appointed lawyer generally represents the defendant in all criminal court proceedings resulting from the defendant's DUI arrest. However, the lawyer is not responsible for helping the client with other civil or administrative cases.

Who Is Eligible for a Court-Appointed Attorney?

To apply for a court-appointed attorney, the defendant usually must complete an application, provide detailed financial information, and possibly pay an administrative fee. The laws for determining eligibility for a court-appointed attorney vary by jurisdiction. However, a defendant's ability to afford an attorney is typically based on income, assets, expenses (including dependents), and debts.

In many states, defendants are considered indigent and eligible for a court-appointed attorney if they're unable to hire an attorney without substantial economic hardship. In making this determination, the judge usually considers the financial resources of the defendant and their spouse. However, a judge can't deny appointed counsel based on the resources of the defendant's other relatives.

Even if a defendant qualifies for court-appointed counsel, there are circumstances where the judge might require the defendant to repay all or part of the costs of determining eligibility and representation.

Can Court-Appointed Attorneys Help With License Suspensions?

A DUI arrest normally results in two separate cases: an administrative driver's license proceeding through the Department of Motor Vehicles (DMV) and a criminal case. Although a DUI conviction will normally result in license suspension, the DMV often can suspend a driver's license even without a conviction in criminal court. The implied consent laws of most states require the DMV to administratively suspend the license of any driver who was arrested for driving with a blood alcohol concentration (BAC) of .08% or more.

Drivers who want to contest an administrative license suspension must request a hearing. At these administrative DMV hearings, there's no right to court-appointed counsel. A court-appointed attorney for a DUI case, including a public defender, generally can't help a person at an administrative hearing.

Defendants who want legal representation at the administrative hearing must hire an attorney. Many courthouses have lawyer referral services that can help people find lawyers, and nonprofit legal aid organizations might be able to help with administrative license hearings.

What Are the Advantages of Having a Public Defender?

Public defenders are in court much more often than private attorneys. So they tend to have a lot of trial experience and can be great trial attorneys because of that experience. Unlike private attorneys who might have cases in multiple courts, public defenders generally handle cases only in one jurisdiction. Because they regularly appear before the same judges, they can develop a strong understanding of what these judges want to hear during trial or sentencing.

A public defender also will be more likely to know how your local police department works and what, if any, common mistakes are in its police reports. In smaller cities, they might even have cross-examined the officer who arrested you multiple times—and might know the best ways to poke holes in that officer's testimony.

Generally, public defenders are passionate advocates who chose a lower-paying attorney job to help people. Compared to private court-appointed attorneys, they won't have the temptation to spend less time on your court-appointed case in favor of clients who are paying a full fee.

Finally, public defenders—and other court-appointed lawyers—are a lot cheaper than hiring a private attorney. Hiring your own attorney could cost several hundred dollars to several thousand dollars, depending on the going rate in the jurisdiction where you're charged.

What Are the Disadvantages of Having a Public Defender?

Public defenders tend to have huge caseloads and might not have as much time to work on your case as a private attorney would. But the level of attention often depends on the size of the city and how much funding the public defender's office receives. A lawyer at a well-funded and well-staffed office is more likely to have time to give clients more individualized attention.

If you apply for a public defender, you won't get to choose your attorney. When you hire a private attorney, you can interview potential lawyers and pick the one who's the best fit for you. When you get a court-appointed attorney, the judge will pick from a list of attorneys without hearing your input.

If you hire a private attorney, shop around. Hiring a DUI attorney can cost several thousand dollars, so be sure to find someone with experience, knowledge, familiarity with the court's rules and judges, and the desire to defend you thoroughly.

Can I Fire My Public Defender or Court-Appointed Attorney?

You might not be allowed to fire your public defender or court-appointed attorney if you're unhappy with their work. Judges usually will allow a defendant to change attorneys. But every judge is different, so don't assume you can change attorneys whenever you want. Generally, the earlier you ask to change attorneys, the more likely it is that a judge will allow you to. If you wait until the morning of trial, a judge will be less likely to allow you to change attorneys, especially if you've already changed attorneys or the court date before.

Judges might ask why you want a new lawyer, so you should be able to explain why. You also should let your current attorney know you want to change attorneys before you ask the judge.