Brendan Kelly, Nebraska DUI Attorney (Interview Transcript):

 

http://www.myDUIattorney.org interviews Brendan Kelly, a DUI attorney from Omaha, Nebraska. Mr. Kelly takes a very personal and human approach to DUI clients, and has vast experience of over 10,000 DUI cases.

 

RJ: First question Mr. Kelly, how many DUI cases have you handled and in what time period?

BK: Well, Richard, I’ve been an attorney for almost 20 years now and during that time I’ve probably handled 10,000 DUI cases. My practice focus has been on criminal defense, with an emphasis on DUI law because its an area where I felt the burdens on the people accused are pretty huge. It’s not like in a normal criminal case where you have to have proof beyond a reasonable doubt in order for the prosecutor to get a conviction. In a DUI case, it’s assumed that the defendant is guilty until proven otherwise.

 

RJ: What’s the typical profile of a DUI offender, are they male or female, first time or repeat offender, what is the typical age range and income level, for example?

 

BK: I would say that the majority of the clients I represent are normally first time offenders. I do have a number of repeat clients that come back that have been arrested for a new DUI, but the vast majority - over 99% - of my clients are first-time offenders. They tend to be overwhelmingly male, but there is a fairly high percentage of females. In terms of circumstance, they really come from all walks of life.

 

RJ: So you’re not seeing any one particular group of people being arrested over others. This is really something that can happen to anyone?

 

BK: The vast majority will tell me that they made a bad mistake or choice that night and as a result of this were arrested for DUI.

 

RJ: This may be a hard or unusual question but how many of your clients have a blood alcohol level that is very near to the limit versus those who have much higher BAC (blood alcohol content) levels?

 

BK: Well in Nebraska we actually have two separate standards. We have the .08 is the legal limit, so anything above that would be considered under the influence. A 0.15 is considered an aggravated DUI. The majority of my clients fall closer to the aggravated range, I would say roughly 15% of my clients may have a blood alcohol closer to .08, somewhere between the 0.08 and .15 range, and around 35% fall over the 0.15 aggravated range which requires a mandatory jail sentence. The other would fall somewhere between .08 and 0.15.

 

RJ: What percentage of the cases that you’ve handled have gone to trial versus settled out of court before trial?

 

BK: Well the overwhelming majority of cases resolve themselves before going to trial. The way I structure my practice is to include going to trial. I work for a flat fee, so I tell people the upfront costs, and then there’s additional fees if we need to hire experts in order to take the matter to trial. Probably 97% are resolved prior to trial either through motions or because the facts of the case are such that it’s better to do a plea-bargain before going to trial.

 

RJ: What’s your best tip when someone has just been pulled over and they have been drinking a little bit or a lot? What should they do, what shouldn’t they do?

 

BK: Well the thing I tell most people is that they are not required to give the officer much information. If they ask you, “where are you going” or what not, you are not obligated to tell them. The thing I tell people is to keep their insurance, license and registration in a set place, where it’s easy to get to and have it prepared to give the officer when you get stopped because that’s what they are going to ask for. The second thing to remember is that the roadside tests are voluntary. What the officer is trying to do is isolate you so he can determine whether or not the odor of alcohol is on your person or in your vehicle. So I would recommend to everyone that if the officer asks them to step outside of the car, they inquire why they have to step outside of the car.

 

Strictly speaking, can he order you out of the car? Yes, he can. The law is pretty clear that as part of his investigation he can do that. Typically once he isolates you he will bring you back to the front seat of his car where again he’s trying to determine if the smell he smelled was on you or in the car. Once he gets you back to his patrol car, at that point, he may or may not want you to perform some standardized field sobriety tests, one of which is called the horizontal gaze nystagmus. He’s going to have you turn and face him and have you follow his finger with just your eyes. You do not have to perform the test, I would recommend that anyone asked to do that test, kindly say “Thanks, but no thanks, I do not wish to do that.” The other tests you are not required to do, are the roadside gymnastics, standardized field sobriety tests, are not enforceable. The only test that you are required to do, otherwise you will be arrested, is the portable breath test (PBT) and refusing that test is considered a misdemeanor.

 

RJ: So none the field sobriety tests you are required to do but you are required to do the preliminary breath test?

 

BK: That’s correct. But in order to make you take the preliminary breath test, he must have probable cause and if you haven’t done the field sobriety tests it’s going to be a lot harder for him to prove probable cause. What normally happens is that people do the field sobriety tests not realizing that they don’t have to, and they may show evidence that they are intoxicated based on the officer’s subjective opinion, and at that point he can put the PBT in front of you, and you blow into it and have a reading above the legal limit, then at that point he has enough evidence to arrest you.

 

RJ: What kind of help can you provide to defendants in a particular case? Might you be able to reduce their time in jail, or their fines? Not have them have to go DUI classes or have the ignition interlock, for example?

 

BK: We try to keep our clients ability to drive. The laws are consistently changing, the burdens keep changing, and it’s really upon us to fight for our client. But the things we do, are trying to get the charges reduced, trying to get the whole thing dismissed is really the goal. The service I provide includes initially when they get the ticket all the way up to a trial. So for instance, we have a law that says you only have ten days from receiving the ticket to try to petition to keep your driver’s license or it will automatically be taken for a minimum of 90 days. So we step in right away to try to stop the client’s license being revoked, and carefully examine the facts of the case and try to do everything possible to ensure that you are not convicted.

 

Again, the because of the way the law is written, and the circumstances of the DUI, the majority of our clients are probably going to be found guilty, but in the case of an aggravated offense we try to get that mitigated down to a reduction, and work with therapists and treatment providers, to ensure that the people who are going to be evaluating our clients can determine what kind of alcohol programs may be required.

 

In Nebraska, there’s no standard number of hours you must participate in for a treatment program if you are convicted for a normal DUI. It’s up to the individual treatment provider who evaluates people to determine what kind of treatment program is required. For the vast majority of clients they end up in a normal alcohol education program.

 

RJ: What percentage of success have you had in getting charges reduced, or getting jail time reduced?

 

BK: I would say over 50% of my clients who come in facing a DUI end up with a reduction of what they thought they thought they were going to get. I benefit all my clients because my goal is getting them back behind the wheel of their car as soon as possible. I also inform them of what could happen worst case, so they are prepared.

 

Watch Brendan Kelly's Interview HERE >>