The Truth About Fighting DUIs

DUIs are extremely common. They are usually misdemeanors, punishable by up to six months in jail and over $4000 in fines and fees, plus issues with the DMV. Reality is that the prosecutors want the cases to resolve quickly so they give offers to resolve the case. Maybe the offer is good, maybe it is bad. An experienced attorney representing your interests will let you know. the court will not let you know, and the prosecutor will not let you. They may encourage you to take whatever offer they give, but that is not a good idea in most situations.

What I am about to say in no way undermines the value of having legal representation in criminal court. There are many issues that an attorney watches out for you, and has your best interests at heart. Attorneys see problems that you would not even know needed to be fixed. Attorneys explain to you what the judge means, what is happening, what the issues are, what you need to balance and consider in making decisions about your case, negotiates and fights for your position, to protect your rights and get the best resolution to your criminal case, among many other things.

However, the fact that you have an attorney that fights for you does not does not mean that you will win at trial. It does not mean that your case will magically be dismissed. The best criminal defense attorneys still have a majority of clients who plead guilty. Granted, that is not how they market their services. And it is not what people want to hear. However, the reality is that your attorney will fight for you, and will probably get you a much better resolution to your case than you would have gotten on your own, but that probably includes pleading guilty to something.

Realize this, that most cases never go to trial. Statistically, almost nothing goes to trial. For example, in West Justice Center, about a week ago, the Orange County District Attorney had 41 misdemeanor cases set for trial on the same day. The court does not even have half that many courtrooms. Consider that on that same day, there were hundreds of new criminal misdemeanor cases set for arraignment, maybe almost a hundred continued cases set for pretrial conferences, plus more cases continued for arraignment, and one or two cases actively in jury trial, if at all, in that courthouse on that day.  This does not include felonies and infractions. (Fewer felonies but they are more involved. Way more infractions, but they are less involved.)

Percentage wise, less than 2% of all cases ever go to trial. And a much smaller percentage actually proceed with trial. This statistic is generally used in reference to all types of legal cases, not criminal alone. However, based on the numbers above, one can clearly see that if even one percent of all criminal cases actually proceeded with trial, the District Attorney’s Office and the Courts would be overwhelmed. Consider one new trial starting every day in the courthouse. The courthouse would be full of jurors waiting to be selected. The shortest DUI trials, for example, may take two days if any one courtroom gave all of its resources to that trial alone, all day, and all parties were ready to proceed and there were no interesting issues. The numbers just do not allow jury trials happen.

DUIs are not an exception. Most DUIs resolve by the defendant pleading guilty. No honest attorney would tell you otherwise. I heard a certain radio advertisement from an attorney’s office that has a catchy phrase. I like the phrase. It is brilliant marketing. It is exactly what people want to hear. Without being too direct, it is about if someone is your friend that they would not let a friend plead guilty. Well, I understand what he is portraying; it is what people want to hear. They do not want to plead guilty. And nobody wants to hire an attorney that starts the conversation with, “I’m your attorney. You will probably plead guilty.”

 

What a good attorney will do for you is explain the legal process, your rights, listen to you concerns, look for ways to fight your case, look for defenses, find holes in the prosecutions case, and keep you informed along the way. A good attorney is also valuable because they go to court for you, without you having to worry about. This saves you time and resources. The truth is that cases usually do not resolve right away, they take some time. The court does not allow attorneys to set cases too soon because the court’s calendar is booked in advance. Case take time for many reasons and your life does not wait around, but keeps going. Leaving the burden on your attorney is golden. Your attorney will discuss options with you once there are developments in your case.

There are ways to suppress the prosecution’s evidence against you. There are multiple ways to negotiate. There are different ways and sources for seeking favorable resolutions to your case. Maybe your case is ripe for trial. Maybe your attorney got you a great plea-bargain that outweighs the risk of trial. You just cannot know these things until an attorney takes a good look at your case and talks to you about it.

In the meantime, keep yourself informed, enjoy life and family, and work hard.

Probation Violation 101

After a case is resolved with probation (for example, plea-bargain/sentence was to serve ten days jail and three years of informal probation, in lieu of six months in jail), a defendant is subject to terms of probation. On misdemeanor cases, probation is most often informal and unsupervised. This means the court may order a defendant to notify, essentially self-declare, any violations of probation within so many days, usually ten days. No one is watching over your shoulder, so as long as you stay off of the police’s radar, everything remains cool, undetected, “informal” and “unsupervised.”

Most probation violation issues arise from failures to satisfy the sentence (the punishment imposed by the court) whether agreed to in a plea-bargain or imposed after being found guilty at trial. This may include not paying a fine timely, or not attending a self-help class as ordered by the court, like AA meetings. Fortunately, so long as a defendant is not blatantly ignoring the court and has taken some steps in the right direction, judges tend to give at least one second chance to do the right thing. That means usually no jail for post-conviction short falls taken care of as soon as possible.

Before we go on any further, we should be aware of what the terms of probation include. One term that is virtually always included is to violate no law. This means no new criminal cases. It can mean a criminal violation that does not result in a case, in theory. However, usually probation violations are triggered by new criminal charges, a new case. Criminal activity or cases includes things like being in the park after closing, drinking in public, urinating in public, prostitution, drugs, and many other crimes. It does not include infractions, such as speeding, or parking tickets, such as not moving the car on street sweeping day. Crimes are things punishable with jail time. Note that some speeding is a crime, when it rises to the level of fast and furious driving. That is called a speed contest, a.k.a., racing.

Other common terms of probation include do not drink and drive with a measurable amount of alcohol in your system, do not drive without current and valid license and insurance, obey all orders and rules of the court and probation department, use your true name and date of birth at all times, carry a government issued identification card at all times, disclose the terms of your probation when asked by law enforcement, etc.

The best way to avoid the police radar while on probation is stay away from where police are frequently found, a.k.a., do what your mother told you to do. Mothers are just looking out for our best interests, telling us not to hang with the wrong friends or places of mischief. Let me simplify what our moms meant. To avoid the police, do not hang out on weekends where the police patrol, e.g., no partying in public places or loud friend’s places. Maybe avoid the local pub in the wee hours until after probation terminates. All too often, a good time with intoxicating substances, legal or not, results in noise and boisterous behavior, for better or worse. Too much partying grabs the attention from those who would call the police, regardless of whether or not there are fights or illegal activity. And, it goes without saying, do not smoke marijuana in public, even with a doctor’s recommendation (many judges do not accept it as a prescription, merely referring to it as a “recommendation”). We all get the idea: avoid any chance of close encounters of the police kind.

The more concerning probation violations are new criminal cases when the prior case is for the same thing. A repeat offender is a flashing neon sign to the judge saying, “If you let me out of this court house, I will do it again, and again, because public safety is not my concern.” Then, a judge is more inclined to require bail, i.e, you have to give the court money that you do not get back unless you are good and return to court.

The reason probation violations are so serious is because they are punishable with jail merely based on a preponderance of the evidence. That is drastically different from the beyond a reasonable doubt standard that must be proved at a criminal trial. For example, if a cop says someone violated the law and the prosecutor agrees by filing a criminal complaint, the judge will probably then be able to fairly easily find enough evidence that it was more likely that a crime was committed than not committed. A much easier standard of proof than beyond a reasonable doubt.

If someone picks up a new criminal case in the same county that had jurisdiction over the old case, that will almost always result in a probation violation. Once a new case occurs, and triggers a probation violation on the old case, that probation violation is a whole new matter. Not even the courts consider if a client was represented by an attorney initially, pre-conviction. The probation issue is between the defendant and the court.

However, a defendant may hire an attorney to represent them on a probation violation. Having an attorney on a probation violation can be invaluable for many reasons, even if the ultimate resolution is to admit the violation of probation. Attorneys will often know which judges impose jail on probation violations and which judges merely reinstate the terms of probation without further punishment.

On a probation violation, a defendant can be punished up to the maximum sentence less any sentence served already on the original case. Back to the criminal repeater issue, judges tend to punish more when they think that the probationer will go out again and do the same thing. Thus, the judge has no confidence that he can keep the defendant from harming the public. Therefore, repeaters may get thrown into jail on the spot, remanded into custody.

Here is where the value of an attorney really comes into play. The attorney knows ways to soften the probation violation, to mingle it with the resolution of the new case, to keep the case at the same stage or progress if forward, and many other factors that directly affect the ultimate outcome for the client. In addition, and probably most important, if the attorney is able to appear without the client present, under what is called “977 authority,” then the client is not thrown in jail when he is not present in court.
Because the probation violation matters are effectively separately punishable from original cases, they are treated as separate cases, like a new case with less steps. Although less involved, there still may be many appearances and issues to consider in a probation violation matter.

Here is an example of a fairly common scenario. Attorney represents client on driving on a suspended license and is able to resolve the case without actual jail time. Nevertheless, the case was punishable for up to six months in jail and $4200.00 in fines and court fees. The client agrees to be on probation for three years to avoid a more serious sentence that would have involved jail. Here, the client serves no jail time.

However, one year later, the client drives without a license, a misdemeanor. This new criminal case is plead guilty to as a misdemeanor for a low fine, no jail, and no probation. The court finds a violation of probation on the older suspended license case, but merely reinstates the terms of probation without additional sentencing.

A few months later, the client gets caught again for driving on a suspended license. The defendant decides not to hire an attorney this time since last time he thinks he got off pretty easy. However, when he appears in court himself, the court sees that this person is going to continue violating the law if minimally punished. The court immediately takes the person into custody when he shows up in court to resolve his “easy” case, just like the time before. The defendant failed to realize the when the attorney showed up on the previous case, that the attorney worked things out. An experienced attorney will know the ins and outs of the courtroom and judges and how to use this information to his client’s advantage.

As this example shows, the defendant’s perspective throughout this scenario was based on risk, history, and, ultimately, the assumption that the same outcome would follow. However, the attorney sees a method to the court’s thinking and process. This helps mitigate (reduce) risk and helps with risk avoidance.

Let’s explain a little more about probation punishments. For instance, if a client pleads guilty on a case punishable by up to 6 months jail, but is only sentenced to 10 days jail, serves the time, pays his fines, then he is done with that sentencing, the case may be closed. However, more often than not, he will have probation for three years. If he has any new criminal conduct, that violates his probation. A violation of probation is punishable by up to the maximum less sentence served. In this example of 10 days jail served on a typical misdemeanor, that leaves 5 months and 20 days in jail remaining. This remaining jail time is now the maximum punishment for the Probation Violation. Thus, we have a client with a whole new problem that did not exist when we pled him out on the case initially. A PV is treated like a whole new case and new set of problems.