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Do You Get a Public Defender for a DUI Case?

By Deanne Katz, Esq. on January 17, 2013 | Last updated on March 21, 2019

If you're facing a DUI case you may be wondering when they're going to bring in your public defender. Well you might have to keep waiting, depending on the circumstances.

It's true that for many crimes, the accused is entitled to a public defender. But contrary to popular belief, every suspect doesn't get a public defender automatically. Even if the crime you're charged with might qualify, you personally might not.

The right to have an attorney is part of the Constitution, and state laws have to comply with that. But even constitutional rights have limits.

To be specific, what the Constitution guarantees in the Sixth Amendment is that "In all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel."

Notice that the Sixth Amendment does not say "free" or "at no charge." It was the Supreme Court that decided in Gideon v. Wainwright that in all felony cases, defendants who cannot afford a lawyer will be provided one.

A later case, Argersinger v. Hamlin, said that if the sentence results in "actual imprisonment," then indigent defendants must also have a lawyer provided.

That means if you're charged with a felony DUI or you face serious jail time, you can probably get a public defender. But first you have to prove that you need one.

Public defenders aren't available to everyone; you have to show the court that you can't otherwise afford an attorney. Most states have an income or asset test to determine if you qualify financially.

Be aware that lying about how much you make can lead to other criminal charges down the line. It's best to keep it honest, even if that means you won't get a public defender.

If your DUI isn't charged as a felony, state law will determine whether you can have a public defender. The best way to find out if you can have one in your case is to request one. You can ask anytime after you've been arrested.

After all that, you may not even want a public defender. While they're well qualified and know the system, most public defenders also a heavy caseload.

You might prefer having a lawyer who can spend more time on your case.

But if you can't afford it, know that a public defender will be provided if you run the risk of being put in prison. That's a right no one can take away.

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