In Maine, every OUI case has the potential for a positive resolution if the attorney has the necessary skill set. Of course, not all attorneys are created equal. Some are incredibly talented and some are incredibly average. Some attorneys are extremely dogged in their approach with these cases while other attorneys are incredibly lazy and skate by by doing the bare minimum. I like to think it takes a small amount of luck, a large degree of skill and a bulldog mentality to achieve my clients' goals.
Sometimes in the field of criminal law, attorneys like me are "playing for the fumble". What I mean is, by being persistent and dogged in your approach, the prosecutor sometimes "screws up" and drops the ball at a critical juncture in the case. For example, yesterday I had a hearing on a motion to suppress my client's statements. If the police obtain statements from you, the client, in violation of your Constitutional rights, we can get those statements suppressed - or thrown out. In yesterday's case, the basis for the motion was very thin. However, I knew that the case was heading towards trial, so I had to pull out all the stops. I arrived at the courthouse 5 minutes prior to the scheduled hearing. The DA was nowhere to be seen and his witness wasn't in the courtroom. The judge wanted to start the hearing and was willing to wait as long as 15 minutes past the hearing start time, but no longer. At 10:15am, the DA and I met with the judge in chambers. The DA had to disclose to the judge that his officer had been notified to be in court for the hearing but had failed to appear and wasn't answering his phone. As a result of the DA's admission, the judge granted my motion and suppressed all statements made by my client. Essentially, the State's case was eviscerated and is unlikely to proceed to trial because those statements were a key element in the State's case.
Now, if I had said "awwww shucks! I'm going to lose my motion so why bother?!", I would have lost the advantage I've now gained over the DA. I think too many attorneys mail it in and don't litigate Constitutional issues enough. Even if the issue appears to be a loser on its face, oftentimes, when people take the stand and are cross-examined, they don't hold up well and hurt the State's case. If nothing else, litigating these issues gives me, the attorney, a good idea how the officer or witness will perform at trial. Are they a good witness? Do they rattle easily? Did I get some good testimony that I can now use to the client's advantage at trial? All of these questions can be answered if the attorney just does his or her due diligence and litigates the case to the very end. After all, don't our clients deserve our best efforts? I certainly think they do.
So, is playing for a fumble a sound legal "strategy"? No. Of course not. However, you'd be naive to believe everything runs perfectly for the defense and prosecution. That's why we litigate. We expect things not to go perfectly smooth for the other side. And if they hit a few bumps in the road? Well, maybe they'll fumble the ball and our client can pick it up and score a not guilty.