RULES GOVERNING BOARD CERTIFICATION BY
THE NATIONAL COLLEGE FOR DUI DEFENSE, INC.
(As revised September 11, 2014)
The National College for DUI Defense, Inc. (NCDD) Board Certifies attorneys in the specialty practice area of DUI Defense Law. This specialty area of law is recognized by the American Bar Association, and the National College for DUI Defense, Inc. has been accredited by the ABA to certify lawyers in the specialty area of DUI Defense Law since 2004. It is currently the only organization accredited by the ABA to certify lawyers in this area of law. The National College for DUI Defense, Inc. is dedicated to the identification of lawyers who possess an enhanced level of skill and expertise and to the development and improvement of the professional competence of lawyers. Additionally, the Board Certification Program serves to assist the public in identifying qualified lawyers in the field of DUI Defense Law.
1.1 THE CERTIFICATION COMMITTEE
The Dean of the National College for DUI Defense, Inc. shall appoint the members of the Certification Committee. The Certification Committee is responsible for reviewing all applications for certification and recertification, and reporting upon them to the Board of Regents. The Certification Committee is authorized to create the content of the examination, including state-specific content to be tested upon where necessary or required. The Certification Committee shall administer the examinations for certification. The Certification Committee investigates and reports to the Board of Regents regarding issues pertaining to revocation of certification. The Certification Committee shall act by majority vote.
1.2 DURATION OF CERTIFICATION
Board Certification will be for a term of five (5) years, and is subject to recertification.
1.3 APPLICATION FOR CERTIFICATION OR RECERTIFICATION
Application forms are available from the NCDD website, or from the Executive Director. An applicant need not be a member of the NCDD to apply for certification, or to become Board Certified. As is the policy of the NCDD, the certification process shall not directly or indirectly discriminate against any applicant for reason of race, color, gender, age, religion, disability, national origin, ancestry, marital status, sexual orientation, parental status, military discharge status, or income status.
1.3.1 APPLICATION FOR BOARD CERTIFICATION
The filing fee for an application for Board Certification is $250.00, which is non-refundable. The filing fee is in addition to the examination fee discussed in Section 3.0. There is currently no filing fee to apply for recertification. Both the application fee and the examination fee must be tendered at the time of the application. An “Affidavit of Conduct” must accompany all Applications for Board Certification.
The completed application for Board Certification, including the reference requirements of Rule 2.2.1, must be received by the Executive Director of the NCDD by August 31st. If the application is accepted as meeting the requirements for Board Certification, the applicant may sit for the next Board Certification Examination. The applicant must successfully pass the Board Certification Examination within the succeeding two (2) examinations from the time of applicant’s Board Certification eligibility.
Should the applicant fail to pass the Board Certification Examination within the succeeding two (2) examinations from applicant’s eligibility, he or she shall not be eligible for reapplication for one (1) year from the date of the last examination taken by the applicant. Should the applicant fail to complete all requirements for Board Certification after the first two applications, applicant will not be eligible for reapplication for a period of four (4) years from the date of applicant’s last examination.
1.3.2 APPLICATION FOR BOARD RECERTIFICATION
Applications for recertification must be received no later than ninety (90) days before the expiration of Board Certification, and must be accompanied by a “Recertification Affidavit of Conduct.” Should an application for recertification be received within ninety (90) days of expiration of Board Certification, the Board may consider the application; however, a lapse in Board Certification may occur if the Board does not act upon the application before its expiration. An application received after the expiration of Board Certification may, upon good cause, be considered by the NCDD; however, an application for reconsideration will not be considered if received later than one (1) year following the expiration of Board Certification.
2.0 CERTIFICATION STANDARDS
An attorney shall be required to satisfy the minimum standards set forth below to become Board Certified by the National College for DUI Defense, Inc.
2.1 SUBSTANTIAL INVOLVEMENT
An applicant for Board Certification must demonstrate substantial involvement in the practice area of DUI Defense Law. In order to satisfy this requirement: The applicant must have practiced in the area of DUI Defense Law for a minimum period of five (5) consecutive years immediately preceding the application; The applicant must meet the experience requirements detailed in Section 2.1.1; and, The applicant must devote at least fifty percent (50%) of his or her practice at the time of application to DUI Defense Law.
2.1.1 EXPERIENCE REQUIREMENTS
An applicant for certification must have fulfilled the following minimum experience requirements for Board Certification within the three (3) years immediately preceding the application:
A. Applicant must have been lead defense counsel in at least 15 DUI trials to verdict or judgment; and
B. Applicant must have been lead counsel in 40 contested matters involving the taking of evidence (i.e. hearings or motions) not included within the trials referred to above. Contested matters are typically matters which are: 1) argued against a prosecutor; 2) in a court of law; 3) where evidence is admitted at the proceeding by stipulation or by testimony of witnesses; and 4) decided by a judge licensed to practice law in the jurisdiction of the proceeding.
C. In the event an applicant requests a waiver of any of the Experience Requirements as contained herein, no application will be accepted as meeting the requirements for Board Certification without the express permission of the Board of Regents. A waiver of any of the requirements of these rules shall be issued only by a two-thirds vote of the Board of Regents for good cause shown prior to the applicant sitting for the Certification Examination.
2.2 INDEPENDENT INQUIRY AND REVIEW
The NCDD must receive in an applicant’s behalf a minimum of three (3) references from judges, and a minimum of three (3) references from attorneys, in accordance with the document entitled “NCDD Policy and Procedures Regarding References,” in order to be considered for Board Certification. These references must be personally knowledgeable regarding applicant’s competency in the area of DUI Defense Law, and must have observed applicant try a DUI matter within the past three years.
References may neither be related to, nor engaged in the legal practice of law with, the applicant. All applicants will be reviewed by the NCDD to assess whether the applicant possesses an enhanced level of skill, knowledge pertaining to the science and law involved in DUI Defense, experience in trial advocacy within the area of practice, and whether applicant has demonstrated integrity and dedication to the best interests of his or her clients. The NCDD’s independent inquiry and review may extend beyond material submitted to the college by the applicant or applicant’s references.
In order to satisfy the minimum reference requirement for Board Certification, the applicant will provide the NCDD with no fewer than eight and no more than twelve names and addresses of attorneys and judges the applicant wishes to use as references. The list of names must include a minimum of four judges and a minimum of four attorneys. Applicants are cautioned to use care when providing references, as there will not be an opportunity to submit more than twelve names for reference, unless, at its sole option, the NCDD requests additional references. Persons providing references for certification must have seen the applicant litigate issues in the DUI Defense practice area within the past three years. References submitted by applicant may be asked to provide additional references for the applicant.
Communication will occur strictly between the NCDD and each provided reference. The applicant will neither deliver the blank form to a reference, nor return a completed form to the NCDD. Although applicants should advise designated references of their wish to use them, under no circumstances will an applicant contact a reference concerning the status or content of a statement of reference thereafter. The NCDD will send a form and a postage-paid envelope to persons designated by the applicant as references. If a reply is not received within a timely manner, the NCDD will re-send the form one additional time to any designated reference person who has not responded. If two requests to a reference have gone unanswered, the reference will no longer be considered, and the lack of a response from that reference person will be noted in the applicant’s file. Should an applicant be unable to meet the reference requirements, he or she is ineligible for Board Certification.
In addition to references provided by the applicant, the Certification Committee may solicit additional statement(s) of reference upon notice to the applicant that additional references will be sought. Notwithstanding said notice, the identity of all references, whether provided by the applicant, or otherwise, shall remain confidential. Moreover, in order to promote accurate, candid comments from references, the substance of all communications with any reference shall remain confidential and not be subject to review by the applicant, or anyone acting on applicant’s behalf.
2.3 EDUCATIONAL EXPERIENCE
Within three years immediately preceding an application, the applicant must have completed either a minimum of thirty-six (36) hours of College-approved education in the field of DUI Defense Law, or the educational experience requirements of the state(s) in which the applicant seeks certification, whichever is greater. State approved continuing legal education programs in the area of DUI Defense Law, and programs provided and sanctioned by the College will be deemed to satisfy this requirement. The NCDD, in its sole discretion, may accept in satisfaction of this requirement, attendance at programs of continuing legal education, or coursework, offered by ABA accredited law schools in the area of DUI Defense Law; teaching courses or seminars related to DUI Defense Law; commentary on DUI Defense Law issues and cases; participating as a panelist, speaker, or workshop leader at educational or professional conferences relating to DUI Defense Law; or, writing published books or articles relating to DUI Defense Law.
2.4 CURRENT ELIGIBILITY TO PRACTICE LAW FOR CERTIFICATION
In order to be Board Certified or recertified, the applicant must be admitted, be a member in good standing, and be currently eligible to practice law in one or more states or territories of the United States or the District of Columbia, or in any of the United States Courts. Attorneys practicing in foreign jurisdictions who can otherwise demonstrate eligibility may petition to be considered for Board Certification on an individual basis.
Satisfactory passage of an examination is required for Board Certification. The examination shall require a demonstration of knowledge in substantive, procedural and scientific areas, and shall include recognition of ethical, evidentiary and constitutional issues that arise in the defense of a DUI case. The examination will consist of both written and oral parts, administered by the NCDD as directed by the Board of Regents. The written and oral portions of the examination will reflect the knowledge and skills needed for an enhanced level of DUI defense trial advocacy. The fee for the combined written and oral examination is one thousand dollars ($1000.00). The examination fee must accompany the application. The Committee, with the approval of the Board of Regents, may consider requests for a waiver of all or part of the examination fee. If the applicant’s application is rejected, the examination fee of one thousand dollars ($1000.00) will be refunded to applicant, and the applicant will be ineligible to sit for the examination. If the applicant fails the initial examination and seeks to re-test pursuant to these rules, the fee for any re-test of the written examination is seven hundred fifty dollars ($750.00). The examination fee must accompany the application for re-test.
Any applicant desiring to re-take the examination pursuant to these Rules may elect to retain their score from one or two of the three segments of the prior examination: 1. multiple choice; 2. essay; or 3. briefing and oral argument. Should an applicant desire to retain such segment(s) of the previous examination, such applicant shall, prior to November 1 of the year preceding the applicant’s second examination, elect which portion(s), if any, of their previous examination they wish to retain.
One week after the previously stated deadline for such applicant to designate their retention election, if any, the applicant's previous test score for the retained section shall be reduced to zero.
4.0 CONTINUING CERTIFICATION FEE
Attorneys who have been designated by the NCDD as Board Certified or Board Certified, Senior Status, shall be required to pay an annual certification fee following the first full year of certification unless waived by the College.
5.0 RECERTIFICATION STANDARDS
The following subsections detail the minimum standards that an applicant must meet for recertification.
5.1 SUBSTANTIAL INVOLVEMENT FOR RECERTIFICATION
An attorney who is Board Certified must maintain and certify substantial involvement in DUI Defense Law during all periods of certification. Substantial involvement requires that the experience requirements below be met, and that DUI Defense comprises at least fifty percent (50%) of the total practice of the applicant.
5.1.1 RECERTIFICATION EXPERIENCE REQUIREMENTS
An applicant for recertification must have fulfilled the following minimum experience requirements for Board Certification within the applicant’s existing certification period (last 5 years):
A. Good Standing. The applicant shall furnish satisfactory evidence of good standing in the state of his or her admission or, if admitted in more than one state, in the state of his or her principal practice.
B. Substantial Involvement. The applicant must make a satisfactory showing of substantial involvement in the specialty area of DUI defense with at least fifty (50) percent of his or her time spent practicing DUI defense litigation during the five years preceding recertification.
1. The applicant must further demonstrate substantial involvement in specialized practice of DUI defense during the five (5) years preceding recertification by showing that he or she has actively participated as counsel for Defendant in
a. Not less than fifteen (15) trials of criminal DUI matters; or
b. As an alternative, one of the following:
(i) Participation in forty (40) contested DUI matters, either directly handled to conclusion as lead counsel or in a supervisory capacity to lead counsel. “Contested matters” shall be defined as noted in Rule 2.1.1(B). Or,
(ii) Participation in a combination of DUI trials, participation in other contested DUI matters, and/or other substantial involvement in this specialty area of practice which exhibit such proficiency in the defense of DUI defendants so as to demonstrate the equivalent of the subsections above. In the event that an applicant requests to be recertified pursuant to this subsection, no application will be accepted as meeting the requirements for board recertification without the express permission of the Board of Regents. Satisfaction of the requirements under this subsection shall be issued only by a two-thirds vote of the Board of Regents for good cause shown.
5.1.2 RECERTIFICATION REFERENCE REQUIREMENTS
Applicants for Recertification shall submit at least 3 attorney references in accordance with Rule 2.2.1. References submitted by applicant may be asked to provide additional references for the applicant. In addition to references provided by the applicant, the Certification Committee may solicit additional statement(s) of reference upon notice to the applicant that additional references will be sought. Notwithstanding said notice, the identity of all references, whether provided by the applicant, or otherwise, shall remain confidential. Moreover, in order to promote accurate, candid comments from references, the substance of all communications with any reference shall remain confidential and not be subject to review by the applicant, or anyone acting on applicant’s behalf.
Communication with references shall be governed as stated in Rule 2.2.1.
5.2 RECERTIFICATION INDEPENDENT INQUIRY AND REVIEW
Independent inquiry and review may be performed in the manner set forth in Section 2.2, et seq., or as otherwise directed by the Board.
5.3 RECERTIFICATION EDUCATIONAL EXPERIENCE
An applicant for recertification must have completed either a minimum of thirty-six (36) hours of College-approved education in the field of DUI Defense Law as described in Section 2.3 within the preceding three (3) years, or the equivalent of their certifying state’s educational requirements during the current certification period, whichever is greater.
6.0 SENIOR DUI DEFENSE LAW SPECIALIST
Any lawyer who has been Board Certified in DUI Defense Law under these rules for a minimum of ten (10) years preceding the initial application for “Senior Specialist,” may apply to be designated as a “Senior DUI Defense Law Specialist.” A “Senior DUI Defense Law Specialist” must comply with all qualifications of a lawyer applying for re certification in DUI Defense Law.
6.1 SUBSTANTIAL INVOLVEMENT
The candidate for “Senior DUI Defense Law Specialist” shall devote at least 50% of his or her practice at the time of application to DUI Defense Law. The term “practice” shall include, but not be limited to: case review, case development, mentoring associate lawyers, preparation for litigation, litigation, scholarly writing, commentary on developments in the field of DUI defense, teaching in the field, and preparation of CLE materials.
6.2 WRITTEN EXAMINATION
No written examination shall be required for initial certification or any subsequent recertification as a “Senior DUI Defense Law Specialist”.
6.3 USE OF BOARD CERTIFICATION NOMENCLATURE
An applicant who has been granted the status of “Senior DUI Defense Law Specialist” Board Certification by the National College for DUI Defense, Inc. shall be permitted to use one or more of the following designations: “Board Certified in DUI Defense Law, Senior Specialist,” “Board Certified in DUI Defense Law, National College for DUI Defense, Inc., Senior Specialist,” or “Board Certified in DUI Defense Law, Senior Status,” “Board Certified in DUI Defense Law, National College for DUI Defense, Inc., Senior Status,” only in accordance with the rules and regulations which both legally and ethically bind such applicant in their respective state(s). The term DUI may be replaced by DWI, OUI, OWI, or DWAI. Upon petition to the NCDD, an alternative nomenclature appropriate to the jurisdiction of the certified specialist may be approved for usage on a case-by-case basis.
7.0 RECOMMENDATION FOR CERTIFICATION OR RECERTIFICATION
Upon successful completion of all requirements for Board Certification, the Certification Committee may recommend to the Board of Regents for or against Board Certification or recertification. Approval of an applicant for Board Certification or recertification shall require a two-thirds vote of the Board of Regents.
7.1 DENIAL OF CERTIFICATION OR RECERTIFICATION
An applicant for Board Certification or recertification who fails to successfully complete all requirements shall be denied certification or recertification. The applicant will be notified in writing by the NCDD of such denial, and the reason(s) for the denial. After written notice has been sent by the NCDD that an application for Board Certification or recertification has been denied, or a certification has been revoked, the applicant seeking review must comply with the Appeals Procedure set out in Section 10.0.
8.0 REVOCATION AND SUSPENSION OF CERTIFICATION
The following subsections establish the criteria and the process by which the Board of Regents may revoke certification.
8.1 REVOCATION CRITERIA
The NCDD may revoke a certification, if: Board Certification was granted contrary to the Rules Governing Board Certification; Board Certification has been granted to an attorney who made any false representation or misstatement of material fact to the College in the process of Board Certification; The attorney who is Board Certified has failed to abide by the Rules Governing Board Certification; The attorney who is Board Certified has failed to pay any applicable fee; The attorney who is Board Certified no longer meets the established qualifications; The attorney who is Board Certified has been disciplined, disbarred, or suspended from practice by any body authorized to impose professional discipline; The attorney who is Board Certified has been convicted of a crime; or, The attorney who is Board Certified has admitted malpractice, or a final malpractice judgment has been entered against the attorney.
8.2 REVOCATION PROCESS
Prior to any action of revocation of certification by the NCDD, the certificate holder is entitled to written notice of the prospective action, and the opportunity to respond. The NCDD will deliver written notice of the proposed revocation, and the reasons therefore, to the last address of the certificate holder reported to the NCDD. The notice shall be sent by certified or registered mail, return receipt requested. The attorney who is Board Certified may respond to the prospective revocation action, in writing, within thirty days of the date the notice was mailed, by posting his response to the Executive Director of the NCDD, by certified or registered mail. The certificate holder’s response should include all documents and exhibits supporting the position that the revocation action is erroneous or inappropriate. The certificate holder is not entitled to a hearing, or to appear in person to contest the revocation, although the NCDD reserves the right, at its sole discretion, to invite the certificate holder to appear in person to respond. The certificate holder is entitled to appeal the revocation decision in accordance with the Appeals Procedure set out in Section 10.0 below.
9.0 CERTIFICATE HOLDER REPORTING RESPONSIBILITIES
Within thirty (30) days of learning of any fact or circumstance described in Section 8.1 above, the attorney who is Board Certified is required to report that fact or circumstance in writing by certified mail, return receipt requested, to the Executive Director of the NCDD. A failure to report such a fact or circumstance is a material misstatement of fact and may be cause for revocation of Board Certification. Within thirty (30) days of any change of address listed with the College, the attorney who is Board Certified shall provide the Executive Director with written notice of the new address. Any notice that is required by these rules to be sent to the certificate holder may be sent to the last address reported to the NCDD, and notice sent to this address shall serve as notice to the certificate holder.
10.0 APPEALS PROCEDURE
An attorney who is refused certification (other than for a failing examination), who is denied recertification, or whose certification is revoked, may appeal in accordance with the following rules and regulations. Exhaustion of the right to appeal shall be a condition precedent to judicial review. Any appeal shall comply with the rules and regulations in effect on the date the appeal is filed.
If the NCDD denies a request for certification (for reasons other than a failing examination), recertification, or revokes a certification, the following appeals procedure shall govern: The applicant will be notified that the certification or recertification has been denied, or that certification has been revoked, and will be provided a written statement of the reason for such action. If an appeal is desired, within thirty days of the mailing date of the notice being appealed, the applicant shall file a written notice of appeal, together with a written response to rebut the adverse finding. The rebuttal statement may include argument as to why the decision of the NCDD is believed to be in error, but may not include new materials that could have been submitted to the NCDD prior to its decision. The matter being appealed shall be referred to an Appeals Panel consisting of an odd number of at least three members appointed by the Dean of the NCDD, and drawn from the Board of Regents, Fellows of the NCDD, or Board Certified Founding or Sustaining Members of the College. No more thantwo members of the Board of Regents shall be appointed to the Appeals Panel. The Dean shall appoint the Appeals Panel not later than 30 days after receipt of the notice of appeal. Members of the Appeals Panel cannot have taken any part in the decision being appealed. The Appeals Panel will consider the matter inexecutive session, not later than 90 days following appointment of the Appeals Panel. The Appeals Panel will determine the manner in which the appeal shall be heard, which may be in person, telephonically or by other electronic means. A majority vote of the Appeals Panel will determine the appeal; however, in the event of a tie vote, the appeal will be denied.
The appellant may make a presentation to the Appeals Panel personally or through counsel. The Chairman of the Certification Committee, or a representative designated by the chairman, may make a presentation to the Appeals Panel not later than 90 days following appointment of the Appeals Panel. A review of the Appeals Panel decision may lie to the Board of Regents of the NCDD, but only under the following conditions:
(1) The request for Board review may only be made by the person aggrieved by the original decision, the Chairman of the Certification Committee, the Dean, or a minority-voting member of the Appeals Panel;
(2) A request for Board review must be made inwriting to the Executive Director within thirty days of the date of the Appeals Panel decision;
(3) There can be convened at least two-thirds of the membership of the Board of Regents who took no part in the original decision being appealed, or the Appeals Panel decision;
(4) If the Dean requests Board review of the decision of the Appeals Panel, he or she may not cast a vote in any review, and may not be considered as part of the two-thirds membership of the Board necessary for review.
(5) In any Board review there shall be no right of personal appearance by the person aggrieved by the original action, or the person requesting the appeal;
(6) The Board of Regents may request an appearance by the Chairman of the Certification Committee, or his designee, as a part of its review, but in such case the person aggrieved by the original action shall be extended an invitation to make a personal appearance; and,
(7) A two-thirds majority of the Board of Regents sitting in review is required to reverse the decision of the Appeals Panel. Such review shall take place at the next regularly scheduled Board of Regents meeting. If the Board of Regents reviews the matter, its decision shall be final, and the person aggrieved by the original action shall be notified in writing not later than 30 days following the Board of Regents’ decision.
No written materials from the appellant, beyond the rebuttal statement and the materials already on file with the NCDD at the time of its adverse decision, will be considered on appeal at the next regularly scheduled Board of Regents meeting except decisions by a state ethics panel or court of law or written material expressly requested by the Appeals Panel or Board of Regents. Materials within the control of the appellant at the time of the NCDD action, but not provided, will not be considered.
10.1 GOVERNING LAW; JURISDICTION; VENUE
Applicant agrees and acknowledges that any dispute relating to Board Certification, including but not limited to rules, application, evaluation, qualification, examination, grading, and results, will be governed by the laws of the State of Washington. Applicant further irrevocably agrees to submit to the exclusive jurisdiction of and venue in the Superior Court of King County, Washington. This provision shall be enforced without reference to any conflict-of-laws provision that would require application of a different choice of law.
11.0 USE OF BOARD CERTIFICATION NOMENCLATURE
An applicant who has been successfully granted Board Certification by the National College for DUI Defense, Inc. shall be permitted to use the designations “Board Certified in DUI Defense Law,” “Board Certified in DUI Defense Law, National College for DUI Defense, Inc.,” or “Board Certified, National College for DUI Defense, Inc.” only in accordance with the rules and regulations which both legally and ethically bind such applicant in their respective state(s). The term DUI may be replaced by DWI, OUI, OWI, or DWAI. Upon petition to the NCDD, other nomenclature for ‘DUI’ appropriate to the jurisdiction of the certified specialist may be approved for usage on a case-by-case basis.
No applicant may claim to have passed the Board Certification Examination without first being granted Board Certification by the NCDD pursuant to these rules.
12.0 STATE SPECIFIC ADDENDUMS
This section is reserved for state-specific requirements for Board Certification.
12.1.1 FLORIDA (cont).
In the event that an applicant or Board Certified member of the Florida bar reports any fact or circumstance required to be reported under Rule 9.0, the NCDD shall report such matter as soon as practicable to the Florida Bar Board of Legal Specialization and Education.
In addition to references provided by the applicant, the Certification Committee will solicit at least two (2) statements of additional reference apart from those submitted by the applicant.