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

Applying for a court-appointed attorney in a DUI case, eligibility requirements, and the scope of the representation.

By , Attorney · Thomas Jefferson School of Law

State and federal law generally guarantee the assistance of counsel to all defendants in criminal cases. Because driving under the influence (DUI) 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 one at the government's expense.

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 to represent the defendant. Public defenders generally handle only court-appointed cases. Private attorneys, on the other hand, typically work in private practice but also accept court-appointed cases either on a contractual or case-by-case basis.

In both situations, the attorney is paid for by the government. Generally, court-appointed lawyers can also hire investigators, interpreters, and expert witnesses at the government's expense if reasonably necessary to handle the case.

Typically, a defendant who's eligible for a court-appointed attorney doesn't have the right to choose which attorney is appointed. Basically, defendants must accept the attorney that the court appoints and the judge usually won't appoint a different lawyer, except in certain circumstances.

When Is an Attorney Appointed?

At the first court appearance (usually the arraignment), the judge will typically advise defendants of the right to have an attorney and ask if they want a court-appointed lawyer. The defendant can opt to hire a private attorney or request that the judge appoint an attorney. 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 continues to represent the defendant through all criminal court proceedings resulting from the defendant's DUI arrest.

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 criteria for determining eligibility for a court-appointed attorney varies 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, a defendant is considered indigent and eligible for a court-appointed attorney if unable to hire an attorney without substantial economic hardship. In making this determination, the judge usually considers the financial resources of the defendant and his or her 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.

What Can Court-Appointed Attorneys Help With?

A DUI arrest normally results in two separate proceedings: an administrative proceeding through the Department of Motor Vehicles (DMV) and a criminal case. Although a DUI conviction will normally result in license suspension, the DMV 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. Defendants who want legal representation at the administrative hearing must hire an attorney.

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