His Fees Are Sobering, but Lawyer Richard Essen Keeps Drunk Drivers Out of Jail Without Fail

updated 09/15/1986 AT 01:00 AM EDT

originally published 09/15/1986 AT 01:00 AM EDT

On a clear, dry evening an expensive imported sedan slams into a tree on the median strip of a four-lane highway in Dade County, Fla. When the police arrive, they find the driver sitting behind the wheel, his breath reeking of alcohol, his eyes bloodshot, his speech slurred. At the station house he slobbers through his videotaped sobriety test like a man bent on self-incrimination. When an officer instructs him to take eight steps heel-to-toe down a white line, turn around and take eight steps back, he responds by demanding, "Have y'ever been to Veenam, thir?" To get his attention, the officer taps the man's chest with his index finger. "You hit me!" the man screams. When he finally tries to walk the line, he can't do it.

Judging him to be intoxicated, the officer puts him under arrest and reads him his rights. "Do you understand?" he inquires.

"I don' unnershtand anything," the man mumbles.

As it turns out, the man (who has never been in Vietnam) does understand one thing—the importance of hiring Miami lawyer Richard Essen as his attorney. Discovering that his client struck his head on the car's windshield at impact, Essen retains the treating physician, who is prepared to testify that the man's concussion could have caused slurred speech, hostility and all the other symptoms of inebriation that he exhibited. So what if the crash took place on a straightaway, Essen argues—none of the evidence is inconsistent with his client's claim that he was forced off the road by another car. The fact that police smelled alcohol on his breath proves nothing, according to Essen, because no one can smell the difference between one drink and 10. Surrendering, the state drops its case, and the driver goes free.

Nothing surprising about that. Virtually all of Richard Essen's clients get off. Perhaps the nation's preeminent drunk-driving defense lawyer, Essen, 47, handles about 1,000 such cases a year, including 15 or 20 involving charges of manslaughter. He has represented "some terribly important people in the community," he says, "and some unimportant people. They all act like jackasses when they're drunk." He has yet to lose a case at trial and isn't usually required to pursue matters that far, so effective is he at dismantling the state's cases beforehand. His admirers are not legion among the public at large. "Among lay people," he says with evident satisfaction, "I may be one of the most unpopular attorneys in the U.S. today."

He is also one of the most inventive in keeping prosecutors at bay. "We have literally hundreds of defenses," Essen explains, reviewing some of his office's 120 current cases with the six lawyers who work for him. "We attack everything. We concede nothing." If the defendant's eyes were suspiciously red-rimmed, Essen has an explanation: "Contact lenses, smoke, crying, there are dozens of things other than alcohol that can cause bloodshot eyes." Weaving down the highway? "The police will admit that the great majority of people who weave, speed and get into accidents haven't been drinking. They could be falling asleep. They could be reaching for a lighted cigarette that fell. We've had cases of bees in the window."

Even the seeming reliability of breath tests and blood examinations is shattered by Essen's analysis. "If you have chewing gum in your mouth when you take the breath test, that can cause an inaccurate reading," he claims. "If you're a diabetic and produce acetone, that could do it. If you are dieting on a high-protein, low-carbohydrate diet you can go into a condition called ketosis that would produce false readings."

And if you're just plain drunk? "It takes 25 to 30 minutes on the average for alcohol to begin to be absorbed into the bloodstream," Essen argues, so the fact that you were polluted by the time you were tested doesn't prove that you were smashed when you crashed.

He is interrupted by a phone call from a lawyer in Denver, one of about 100 telephone consultations he provides each year, at $1,500 to $2,500 per case. In this instance, he learns, a police officer claims the woman he arrested staggered during her roadside balance tests. "Find out if she has any type of condition—knee, leg, back, anything at all," Essen advises. "Then ask the officer, 'If you had known about her condition, would that have had any effect upon your decision to arrest?' If he says yes, it means he was wrong to arrest her. If he says no, it means he doesn't care what the truth is. It's like 'Have you stopped beating your wife?' only it doesn't sound like it."

Essen clunks down the receiver with the authority of a judge pounding his gavel. Next case.

"We look for details that the state calls technicalities and that we call protecting our clients' rights," he says. Of course, he admits, "You sometimes win on grounds that would be very difficult to describe as anything but a technicality." In one manslaughter case, for example, he succeeded in having a blood test ruled inadmissible because the license of the nurse who drew the blood had expired two months earlier. In another case, a man arrested while driving the wrong way on a one-way street had his breath-test results thrown out because they were recorded on the wrong form. In yet another case, says Essen, "The officer trampled on our client's rights because he didn't write 'Dade County' on the ticket." Essen can't help but chuckle, delighted by his own cleverness.

Yet his most reliable tactic is somewhat less ingenious. It is that old defense standby, delay. In Florida, drunk-driving cases must be brought to trial within 90 days or be dismissed. One of Essen's favorite stratagems is to schedule a deposition at a time when a prosecution witness can't be there. "This is a war," says Essen, "and I approach it like that. I come in with one mission: Within the boundaries of ethics, win the case."

Even his adversaries concede that Essen stays within ethical bounds, though he sometimes strains them to the limit. "He's very thorough," admits Jill Menadier, chief of the Driving Under the Influence unit for the state attorney in Dade County, "and obviously very skilled."

The true test of a defense attorney's skill, of course, is his ability to get clients off. How often are the men and women Essen defends actually innocent? "Not too often," he admits, "but it doesn't matter whether someone is innocent or guilty in the nonlegal sense, in the real-world sense. What matters legally is whether there is a presentation of sufficient evidence to convict beyond a reasonable doubt. If we don't demand that the government meet such a burden, then we all lose our rights."

He does not pretend, however, that the lofty goal of defending civil liberties is his main motivation. "I didn't go into this as a matter of principle," he says. "It was a business decision. This was a great opportunity, and I took advantage of it."

Indeed. He charges $2,500 if the case involves a first offense, $5,000 if a second offense, and so on. There are plenty of lawyers in the Yellow Pages charging half as much, but Essen's clients want more than their fingers to do the walking. "It's been said that our fee is part of the punishment," Essen observes cheerfully. As his share of justice's bounty, he owns a very comfortable home with a swimming pool and a pair of Mercedes in the driveway. Yet beyond what is necessary to live free from worry, he says, he is not really interested in money, though he reputedly earns half a million dollars a year. "That's probably an underestimate," he says, with perhaps just a trace of embarrassment.

His success has come at a price. He keeps a 100-pound Doberman attack dog at home, as well as several handguns, because he has received letters threatening his life. In fact, he receives more criticism for defending drunk drivers than he did for defending dope pushers or murderers. And some of the criticism hits home. His daughter, Elena, 16, had planned to be his partner some day, but Essen says she was "so appalled at what I was doing that she lost her desire to be an attorney."

Such considerations are less troubling to Essen. He feels no qualms when he defends a drunk driver successfully because he believes the penalties courts impose just don't work. "MADD's solution is more jail time," he explains. "Instead of doing anything to solve the problem, what they're looking for is retribution, vengeance. But jail isn't a deterrent to this kind of thing. These people aren't criminals. Seventy-five to 90 percent of them are problem drinkers. Most people who drive in that condition really believe they can get home safely. They don't realize they're drunk."

Essen's sympathy for alcoholic clients stems from his own battles with another compulsion. "I am a foodaholic," he says. "It makes me more aware of the problems of addictive behavior, and that punishment is not treatment. You could put me in jail for as long as you wish and you couldn't deal effectively with my food problem. I need professional help." Though Diane Holmes, president of the Dade County chapter of MADD, has no patience with this line of argument, she finds Essen himself a warm and compassionate man. Her 18-year-old son, Sean, was killed 3½ years ago by a hit-and-run driver who had been drinking, and since then she has appeared on several talk shows with Essen. "He and I do not agree on drunk-driving issues," she says, "but he really wasn't what I expected. We've become friends." A legal secretary in the state attorney's office, Holmes understands that defendants have rights—among them, access to a lawyer as adroit and aggressive as Richard Essen. "I just wish," she says, "that he wasn't so good at what he does."

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