Drunken driving suspects used to be able to plead no contest to charges in criminal court and then battle the state Division of Motor Vehicles to keep their driver's licenses and, ultimately, their jobs.

That all changed when the state Supreme Court decided last year that a no-contest plea in a DUI case constitutes a conviction. Such a plea now triggers an automatic revocation by the DMV.

Now, defense lawyers are getting more technical in their tactics to defend clients, finding loopholes and pushing prosecutors to build airtight cases, legal analysts say.

While there's no obvious trend showing that more suspects are beating DUI charges because of an aggressive defense, Mark Neil, the traffic safety resource prosecutor with the state Prosecuting Attorneys Institute, says it is obvious that defense lawyers are working harder to prove reasonable doubt.

"Whether it is ultimately found to be a valid point or not, they're raising a lot more issues," Neil said. "What I'm seeing, at least with certain members of the defense bar, is that they're better organized and are sharing their ideas. They're paying attention to what lawyers around the country are doing."

Defense lawyers are challenging everything. Breath and field sobriety tests, probable cause in traffic stops, law enforcement procedure.

It's all about getting a jury or judge to focus on one technicality, Neil said. If a defense lawyer is successful, the rest of the evidence can become a non-issue.

Russ Cook, a researcher with the state Public Defender Services and a former public defender in Huntington, is seeing the same trend.

"I think at this point defense attorneys are becoming a little more knowledgeable and creative in how to represent a client in a DUI case," Cook said. "Back in the day, you could take a case and possibly enter a plea and the big fight was how can I keep my driver's license."

Cook said folks used to plead no contest, sidestepping the admission of guilt, and then focus on keeping their driver's license by arguing with the DMV in an administrative hearing.

"I think what's happening now is that since the license aspect of it is much more difficult, they may as well go to trial now and prove their innocence," Cook said.

On the criminal side, Powerball winner Jack Whittaker beat a DUI charge last year in Kanawha County when his lawyer, Carter Zerbe, had expert witnesses challenge the reliability of sobriety tests.

The experts were able to raise enough doubt about results of field sobriety and breath tests that Kanawha Magistrate Tim Halloran granted Zerbe's request to suppress the evidence, although the arresting officer said Whittaker failed all of them.

The prosecution essentially was left with no evidence to convict, and it dropped the charges.
Ex-state liquor inspector Barry Brown beat a DUI charge in Cabell County April 11 after his lawyer, David Lockwood, successfully challenged the state trooper's technique in administering the breath test.

Drunken driving suspects aren't supposed to have anything in their mouths for at least 20 minutes before taking the test. Brown apparently had tobacco in his mouth before he blew into the machine. Lockwood said that skewed the results. Magistrate John Rice said he reluctantly agreed.

A DUI case in Indiana a couple years ago resulted in a breath test being thrown out because the suspect had a metal stud through her pierced tongue.

Cook could remember when, in the early 1990s, as many as 10 DUI cases were dismissed because the Putnam County magistrate arraigned the suspects at the county jail rather than at the courthouse, located about 50 yards away.

Lawyers argued that the proper place for arraignment was in the courtroom. Today, arraignments are commonly done by videotape from regional jails.

Neil said there is a positive side to the tenacity of the defense lawyers.
"I think that the defense's raising issues causes the officers to have to pay more attention to the small details.
"Cases are becoming harder to try because of this belief that you have to get into all the technicality and all of the science," Neil said. "Used to be, we could say, ‘I know what a drunk driver looks like.' Now, we can't do it that way."

The institute puts out a "Hot Sheet" newsletter that helps prosecutors prepare for new challenges that could be brought by defense attorneys.

One edition listed 10 things prosecutors can do to build stronger cases, such as visiting the scene of the arrest, obtaining jail mug shots to compare to a sober defendant's appearance in court, and taking the same field sobriety test training that law enforcement officers take.

On the other side, the National College for DUI Defense, a non-profit educational resource, answers the 20 most frequently asked questions about drunken driving charges.

It advised drivers not to turn with a wide radius, swerve, weave, ride down the center lines, go slower than 10 mph below the posted speed limit or drive with headlights off.

These are all matters of probable cause that would justify a traffic stop. And the group advises if a driver does get pulled over and is asked by an officer if he's been drinking, he should plead the Fifth Am