.The Devil’s Advocate

You wake up in a jail cell with a hangover, a felony DUI, and a single phone call. Here's Blackie Burak's number.

Walnut Creek attorney Blackie Burak stopped by his downtown office just long enough to retrieve his organizer and pick up a few phone messages. He’d just returned from the airport after spending the morning in Susanville with a new client, and the afternoon ahead of him looked like a wall of court appearances and meetings: a hearing in Martinez; an arraignment in Oakland; a quick pretrial conference back in Walnut Creek. “This is nothing,” said the 59-year-old lawyer, holding up a fan of paper notes. “After the holidays, things really pick up.”

Burak makes his living defending drunk drivers. Over the past twenty years he’s earned a reputation as one of the East Bay’s best DUI attorneys — and certainly among the busiest in the state. He’s taken on as many as 175 cases per year, piloting his single-engine plane to the far reaches of California to represent the legions of citizens who’ve guzzled a few, or fifteen, stumbled their way to the driver’s seat, headed out on the highway, and gotten nabbed.

“He’s one of the most feared DUI attorneys around,” says Joe Mada, a Contra Costa County prosecutor who has squared off against Burak more than a dozen times. “He’ll fight for every little thing. He’s got that tough-guy Marine spirit in him.”

The annual holiday crusade against drunk driving that revved up last weekend will bring a nice bump in business for Burak. Over the next three weeks, if recent history is any indication, some 2,200 drivers in Alameda and Contra Costa counties will be arrested for driving under the influence of alcohol, meaning their blood alcohol content exceeds the legal limit of 0.08 percent. Come January, Burak’s phone will ring off the hook with clients ranging from the businessman caught up in a post-happy hour checkpoint to the alcoholic repeat offender who plowed through an occupied crosswalk, to the soccer mom heading home from a church luncheon to the college student hustling to the next kegger.

Burak has represented them all.

When he started out in the business two decades ago, a DUI was treated like a heavy traffic ticket: As long as nobody was hurt, the offender merely paid a fine and hoped not to get caught again. Since then, however, the rise to power of Mothers Against Drunk Driving, the continued lowering of the legal blood alcohol limit, and other get-tough legislative acts have combined to create the modern-day villain known as the Drunk Driver, and, as a consequence, his equally reviled sidekick: the Drunk Driver’s Attorney. “You’ve gotta have thick skin to do this job,” says Burak, “and be a little bit crazy, too.”

In fact, even as the number of DUI arrests has decreased over the past decade, Burak and his colleagues — or at least their services — are becoming more popular. According to DMV estimates, arrests in California rose to an all-time high at 366,000 in 1990, the same year the legal limit was lowered to 0.08 percent. After declining for years, the arrest rate recently steadied at around 190,000 per year. Many of the defendants slinking through Blackie’s doors simply want to avoid the stigma of a DUI on an otherwise spotless record, he says. Others hope to escape the stiff punishments, which now can include jail time, thousands of dollars in fines, hours of community service, and months spent in “alcohol education classes,” which blend traffic school and AA-type meetings.

In the past, drunk-driving defendants hired run-of-the-mill defense lawyers, but stability in the client pool has entrenched a new legal specialty. Burak is a founding member and past president of the California Deuce Defenders, a statewide coalition of DUI attorneys. In 1988, the year the association was established (state DUI codes all begin with the number 2, hence “deuce”) it had roughly 100 members. Today there are 225.

Burak grew up in Philadelphia, and earned his nickname as a tough kid running numbers for a neighborhood bookie. (His real name is Barry, but even judges in open court call him Blackie.) He’s kept fit over the years, and he’s still capable of leveling a bully’s gaze. “People take one look at me and think I’m an asshole,” he admits. “But it’s usually because I’m off thinking about something else, and I don’t realize I’m looking right through them.”

Behind that glare, he’s also a left-leaning baby boomer who migrated to the West Coast in the late ’60s and, as he puts it, “fully participated in the era.” Now, as a seasoned lawyer who defends those among us who are considered rather indefensible in this zero-tolerance age, Burak has adopted a working philosophy that’s part latte liberal, part Philly street smarts: Engage in the case only when you’re in the courtroom. Once you step outside, fuggeddaboudit. “I know my clients are very stressed out, and going before a jury can be a very stressful thing,” Burak says, waving a hand. “But I don’t get that way anymore. I don’t take the cases personally, and I can’t take them home with me. I’ve forgotten half of them already.”

The lawyer can still recall one case, however, as easily as if it took place this morning, even though it happened decades ago. A young Southern California mother named Rita was out one day with her husband Jay and their two children. They were headed toward home in the family car when a truck came from the other direction, its driver loaded as all hell. He smashed into the car head-on, says Burak, and the entire family was killed.

That fatal day stood out for Blackie because Rita was his cousin. Burak’s closest friends growing up in Philly, apart from the kids he ran with on the streets, were his first cousins. “They were like my brothers and sisters,” he says. Rita was just a year older than Blackie and was one of his favorite people. “I can still remember the moment when I got the news,” he adds, staring straight through his visitor for a moment. “So yeah, I know what that’s like.”

If you find yourself standing inside Blackie Burak’s office, the first thing he’ll do is size you up. Resemble W.C. Fields? Find yourself another lawyer. “I can do the best job in the history of DUI attorneys, but no jury in the world will believe a guy if their client’s nose is red and he reeks like booze.” The walls in Burak’s office are decorated by three framings: a Marines recruitment poster that reads “Smack ’em down!,” a Grateful Dead poster from a 1971 concert, and a portrait of Abraham Lincoln who, Burak notes, was known as a pretty good country lawyer himself.

“In many ways, defending a common murderer is much easier,” he says. “At least the jury is already familiar with the concept of ‘a reasonable doubt.’ Drunk-driving juries are against your client from the start. Who could ever be for drunk driving? The witnesses are mainly law enforcement agents — very believable — and they’re experts at performing in court. They’ve been up in that chair thousands of times and they know what the prosecutor is going to ask them; they know exactly what they’re going to say, and just how they’re going to look over at the jury when they say it. Really, it’s become a dog and pony show.

“But I feel I can walk into any DUI trial and, at worst, neutralize a cop’s testimony regarding the driving or the field sobriety tests,” Burak says. “Or make it work to my benefit — I don’t care what the police report says.”

That the blood alcohol of his clients measured above 0.08 is a given. What happens next is what’s important. Any misstep in the police report, any inconsistency, any iota of scientific data that can be challenged — and it’s all subject to challenge — that’s where the DUI attorney makes his living. At one trial Burak listened to a cop on the stand who testified that Burak’s client was balancing poorly on his left leg. As the testimony went on, the cop slipped and said the client was standing on his right leg.

“Now officer,” Burak interrupted, “if my client was balancing on both legs at the same time, do you understand what you’re suggesting?”

The cop’s credibility was blown: Which leg was the defendant standing on? Not sure. Not sure?

The client walked.

Blackie Burak didn’t start out so clever. Until his father pressured him into joining the Marines at age seventeen, “I didn’t have a cogent or lucid thought in my mind,” he says. In Blackie’s view, catching a sergeant in his ear the moment he stepped off the plane at Parris Island, South Carolina, was the best thing that ever happened to him. By 1963 he was over in Vietnam, firing bullets from helicopters into the brush below. While making a pickup in a landing zone, Burak’s helicopter was ambushed and the soldier took shrapnel in the shoulder. He left the country with a Purple Heart. “It was so early in the war they sent me home just for that,” he says. “Later on, it wouldn’t have even counted. They would have sent me right back in.”

During his tour of duty, the young Marine spent his downtime reading books that featured crusading lawyers like Clarence Darrow, and developing some romantic notions. Back home, he took the government up on its G.I. Bill, and enrolled in law school at the University of San Francisco. Many of his graduating classmates took jobs with the local district attorney’s office, a popular training ground for young lawyers, but Burak had come to embrace a contrarian viewpoint: The way to uphold the Constitution, he believed, was to challenge it by making the government prove its case each and every time. “Without us [defense lawyers],” he says, “the government would run roughshod over the Constitution.”

Blackie started out as a personal injury lawyer in Oakland, winning his first blurb in the newspaper (and a $2,500 verdict) for representing a woman who had the misfortune of being locked inside the bathroom of a Greyhound bus when it crashed and rolled on its side. The cases were easy to pick up, and the money was steady. But he wasn’t crusading about town, not like the lawyers in the books.

In 1970, at a friend’s suggestion, the fledgling defense attorney attended a weekend seminar that changed his life. Titled “Jealousy, Money, and Possession,” it was offered by More University, a nonaccredited college in Lafayette best known for its classes in spirituality and sexuality. The school was founded in the late 1960s by self-proclaimed gurus Victor and Susan Baranco. Among Burak’s classmates, he says, was Werner Erhard, who went on to found est. “In a nutshell,” the lawyer says, “their philosophy taught me this: The universe is perfect, we’re all perfect, we’re all responsible for being that way, and we’re all responsible for whatever we do.”

For the next nine years, Burak lived in More’s Oakland commune and continued to practice law. There he met his first wife, with whom he had a son. But that relationship eventually fell apart. In 1979, Burak divorced his wife and left his spiritual comrades behind; he gained custody of his boy and moved to Concord. “It was just time for me to move on,” is all he’ll say of those radical life changes. “They had interesting things to say, and I bought into it.”

Back in the straight world, Burak found love again and remarried a year later. He also expanded his law practice to include bankruptcies, divorces, and felony crimes, and ultimately took on some of Contra Costa County’s most prominent defendants, including former Supervisor Gayle Bishop, who was convicted on nine felony counts for using public employees to work her re-election campaign on the county’s dime.

Burak still handles a few major felonies, but he estimates 90 percent of his workload these days consists of DUIs — cases, he boasts, he can try in his sleep. Rapes? Murders? Those trials are full of procedural nightmares that keep him up at night.

Overall, he says, his life as a defense attorney has been fulfilling. He learned at More a long time ago that one of life’s greatest pleasures is to offer your services to another — and he’s done that. He’s successfully defended many innocent men accused of all sorts of horrible crimes, and for that alone he feels like he’s embraced a mantra he learned at the commune: Serve the world unselfishly, and make a profit at it.

“The profit,” he points out, “isn’t always making money.”

From the perspective of Blackie and his peers, there’s a much deeper motivation driving them to do what they do: It’s all about defending the Fourth Amendment. That call to arms was celebrated loudly one night last month, as some fifty California DUI attorneys descended on an Oakland Italian restaurant to discuss the state of their craft, eat noodles buried in sauce, drink red wine, and then, presumably, drive home. At the quarterly gathering of the Deuce Defenders, lawyers cheered as keynote speaker Michael “Captain Motions” Kennedy, a boisterous procedural expert, took to the stage wrapped in an American flag. Kennedy knew his audience; the Deuces view themselves as patriotic soldiers, fighting an unpopular war to uphold constitutional protections.

The war began in 1980. That’s when a California mother named Candy Lightner started a victims advocacy group, then called Mothers Against Drunk Drivers. Citing grim studies from the National Transportation Safety Board, Lightner publicized the fact that 20,000 people were getting killed annually in alcohol-related car accidents, her child among them. As MADD grew, it developed a flair for visual media that yanked directly on the heartstrings. Crumpled cars, along with faux headstones engraved with the names of the dead, arrived on high school and college campuses. The group’s activists showed up in force in courtrooms to publicly shame DUI attorneys and their clients. They successfully pressured lawmakers to ratchet up punishments against convicted drunk drivers while simultaneously pushing legislation to lower the legal blood alcohol limit. Over the past twenty years, California’s limit has dropped from 0.15 percent to 0.12, then to 0.10, and finally to 0.08 percent, the current national norm. Yet the action that really rallied DUI attorneys — their provocation to battle, they say — was the US Supreme Court’s 1990 decision to uphold sobriety checkpoints. The top court reasoned that the danger of drunk drivers on the road was so great that the government had a justifiable interest in stopping and searching random drivers for alcohol use. To Fourth Amendment defenders, including the American Civil Liberties Union, it was the single worst allowance of government intrusion without probable cause since the birth of the document. (In the case of hard drugs, these attorneys like to point out, such checkpoints have been ruled unconstitutional.)

“The Supreme Court justices should hang their heads in shame for that ruling,” says Eugene Ellis, aka “Mr. DUI,” another of the state’s more prominent DUI lawyers in attendance at the Deuces dinner. Ellis is working on a book entitled The Dark Side of DUI Enforcement, which he says will show how the War on Drunk Driving has taken as many constitutional shortcuts as the now much-maligned War on Drugs. The politics and patriotism somehow implicit in battling drunk driving, Ellis says, has morphed into a machine run amok. Consider the Fourth of July holiday, he offers. This most American of weekends is now called “National Sobriety Checkpoint Week.” Chilling, he says.

As in cold cash. The rise of sobriety checkpoints, annual holiday crackdowns, and the semiregular call to reduce the blood alcohol threshold have spawned a reliable money machine for lawyers just like Ellis. Eight years ago, the National College for DUI Defense opened its doors in Houston, Texas, and has since graduated hundreds of attorneys schooled on the intricacies of DUI law and the booze-testing technologies they’ll dispute.

True to the Defend-the-Fourth rebel yell, the school’s mission statement reads: “There is no other crime where more innocent people are arrested and convicted then there are in DUI/DWI prosecutions. This is because DUI/DWI arrests are based on opinions of strangers and on the results of machines that are not always accurate and reliable for testing human beings.”

Over the past decade, no fewer than six “DUI colleges” have opened up for attorneys looking to specialize. “There are more of us now because the laws and the enforcement has gotten so out of control,” says Ellis. “Where there’s politics and money and power, there’s trouble.”

If MADD has its way, there’ll be more trouble to come. Every year in the United States, around 15,500 people are killed by drivers under the influence. MADD has pledged to continue its emotional ad campaigns and calls for yet more legislation and tougher enforcement in order to reduce that number to 11,000 by 2005. Despite the group’s successes, however, the fatality statistics have flipped in the wrong direction. Last year showed a slight increase in deaths for the first time in five years. “We have reached a complacent plateau in the war on drunk driving,” said Millie Webb, MADD’s national president, in a recent statement.

And so, a strange cycle continues: MADD ramps up its efforts, legislators listen, cops crack down, defense attorneys continue their resistance. Like his brethren in the Deuces, Burak believes passionately in preserving the Fourth Amendment, no matter how unpleasant the task.

“Believe me,” he says, “I don’t do this because I have any love for drunk drivers. I think it’s stupid. I think it’s dumb. But what I don’t like is how it’s being used as a tool to destroy the Constitution.”

Burak is thinking about his cousin Rita when he says this, and goes on to list names of his legal colleagues who’ve also lost family members to drunk drivers. Just because he’s experienced that pain himself doesn’t mean he can’t do his job. He mentions a Contra Costa County judge whose sister was killed on the road. Burak tries cases in front of the judge regularly, and says he admires that the jurist has always been able to offer fair and professional rulings. “I’m not the only one,” he says. “All I want to do,” continues the attorney, shifting the subject back to his courtroom strategy, “is show the jury what the cop’s saying you did is not so bad.”Burak rarely looks at the results of his client’s field sobriety tests. The tests are rigged in the authorities’ favor, he says. Just like the cops who hear the clich√©, “But officer, I only had two beers,” a good DUI attorney knows the boilerplate language regarding field tests. Whether the suspect’s blood alcohol is borderline, or whether he’s sloshed and stupid, the statement reads about the same: Subject had to be instructed twice. Subject’s eyes jumped while following the pen. Subject couldn’t balance on one leg.

“You couldn’t imagine how many of my clients say, ‘But I passed that test! The cop’s makin’ it up!'” Burak says. “But who’s going to believe them? It’s only them out there and the cop, and one of them is supposed to be drunk.”

And just like the cops, DUI attorneys like to share strategies. One of Burak’s colleagues argued that his client’s dentures had trapped a pocket of alcohol over the course of the evening, and were therefore responsible for his defendant blowing “hot” on the breathalyzer test. Another lawyer’s client belched so loudly the moment before he blew into the apparatus — the cop dutifully jotted the detail in his report — the attorney was able to persuade jurors the machine was thrown off by the warmth of the burp. Then there’s the story about the attorney who proved his client suffered from a rare blood condition that heated his blood, throwing off the results, and the one about the client who suffered from a rare eye condition that resulted in undue shaking as he followed the pen.

All of the clients, not guilty. All of the tactics, sure to be recycled.

In the courtroom, Burak shows enthusiasm, but not flamboyance. If the blood sample was mishandled, he slowly but surely lays out for the jury the chain of hands through which it passed, and where it was molested. If there’s any error in the official reporting — a contradiction in the paperwork, a mismatch in clock times — he pounces.

Burak had one client (an attorney, no less) who was leaving a ski lodge after drinking one too many. Backing out, the client smashed his SUV into another car and then took off: a hit and run. Witnesses called police, who quickly tracked down Burak’s client and booked him for drunk driving and leaving the scene of an accident.

When Blackie compared the time police were called with the time of arrest, he realized the call took place, somehow, an hour after the arrest. Where was the probable cause to stop his client? Maybe the cop got it wrong. Maybe the dispatcher got it wrong. Maybe it was daylight savings. Didn’t matter.

The client walked.

For Burak’s efforts, which cost clients about $7,000 if the case goes to trial — about $5,000 more than most first-time offenders pay in fines — the lawyer wins just better than half of his cases. Which, given the difficulty of getting an acquittal in a DUI case, puts him among the best in the business. According to statistics compiled by the DMV, the conviction rate of accused drunk drivers was about 68 percent in the early ’90s. Today, it is 75 percent.

Burak’s job has been made more difficult, in part, he says, by the demise of the urine test. Defense attorneys once hammered away for clients who made the wise choice of selecting urinalysis, a test with a higher false-positive rate than blood and breath tests. With a bloated plus-minus error margin, juries were swayed to doubt if the client was indeed drunk. About eight years ago, the CHP ditched the test, claiming it was too expensive. “We’ve found ways to work around it,” he says.

Now approaching age sixty, the veteran lawyer says he’s going to slow down, complete his other remaining felony cases, and focus solely on DUIs, his bread and butter. His friends have already suggested he offer his name for a vacant judgeship in Contra Costa County, since he’s been a longtime contributor to the Democratic Party. He’ll consider that later; right now he’s intent on winnowing his workload to about 75 cases a year. “Felonies are a young man’s game,” Burak says. “I like being relaxed now. I’m trying to sleep at night.”

Prosecutor Mada says he’s noticed Burak easing up in recent years from his feistier days. This is the guy, Mada notes, who once nearly came to blows with another prosecutor in the courtroom over a motion to suppress — instead, a bailiff had to be called in to suppress the impending fisticuffs. “I’m not going to say Blackie’s lost a step — he hasn’t,” Mada says. “He’s still got the desire. I’d say he’s just mellowing with age.”

Yet the aging lawyer still has some tricks. After twenty years of marriage, he only recently started wearing a wedding ring — and that’s only because a friend told him juries are more likely to believe a married lawyer. His new ring is forged of two intertwining gold dolphins, a style more More University than Philadelphia streets.

It could come in handy in Burak’s next trial. The case is a heartbreaker, he says. After landing his V-Tail Bonanza in Susanville, he met his client, a single mother who’d been driving home along the area’s winding mountain roads with her daughter asleep in the reclined passenger seat. She lost control, swerving off the road. The daughter’s seat belt couldn’t hold the girl in the car; she slipped out the window and was killed by the impact. The mom admitted she’d been drinking earlier in the weekend, but told police she hadn’t had a sip for a full 24 hours before the accident. Still, she tested over 0.08, and the local DA charged her with vehicular manslaughter in her daughter’s death.

Blackie wasn’t yet sure how to attack the case, but he would undoubtedly find a way. “I haven’t seen the file yet,” he said.


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