Saturday, May 17, 2008

Albany DWI and DA Soares' New Policy

Kudos to the Times Union for breaking an important legal news story. The Albany District Attorney's office has adopted a new policy regarding plea bargains in drunk driving cases.

For starters, a big chunk of the policy depends on the accused person's blood alcohol content, or BAC. Also, the accused must also complete an "alcohol evaluation" before there will be any plea bargain offer.

If the BAC is 0.14 or lower, the DA may agree to a reduced charge of DWAI, along with a sort-of standard package -- fine, the "Victim Impact Panel" (aka VIP), waive appeal, and do the Drinking Driver Program (or DDP). For those charged with DWAI already (usually 0.05 to 0.07 BAC), this is what is known as "plead to the charge." I'll discuss that concept more later. I should note though, that the policy may be different if the BAC is 0.05 or 0.06.

For 0.15-0.19, the offer is plead guilty to DWI, with the same package as above. For the 0.15-.17 part of the range, the offer is "plead to the charge."

For 0.20 and up, (.18 and up is the relatively new "Aggravated DWI"), the deal is plead guilty ("plead to the charge" again), do 3 years probation along with the package, and a requirement of an "ignition interlock device" for the remainder of the 3 years probation.

There are other details related to cases with accidents or defendants with prior convictions, but I won't get into the details of that here, except that they also require a plea to the charge.

So we have an election year, and the DA has suddenly decided after three years in office that his previous approach to DWI was too soft, and now he's getting tough on drunk driving. Politically, it seems the media should be jumping all over him for playing election year politics with people's lives. Either that, or nail him for being too soft on DWI in his first three years in office.

But let's talk about why this matters. The biggest problem initially is the "plead the charge" offers. That's not an offer. A defendant doesn't need the DA's offer to plead guilty to the charge. All they have to do is walk in and tell the judge they plead guilty. You don't even need a lawyer to do that. If you plead guilty to the charge, you'll get the same deal that the DA's policy includes, and in some cases you'll do better. An offer is a reduction to a lesser charge. for most of the Soares' policy, there's no offer.

I had a client who was in an accident, someone was injured, and she was charged with DWI. This was an active duty soldier. The offer was plead guilty to the charge and do 3 years probation. For those who don't know, probation typically requires someone to stay in the area where they're on probation - you know, "don't leave the county." That's kind of tough to do if you're on active duty in the military, and this soldier was getting ready to be deployed overseas.

In that case the offer was reasonable for the circumstances of the incident, except for the soldier thing. For some reason the ADA refused to agree to have him plead guilty without probation. I like this particular ADA. He's usually reasonable, often more so than others. But I guess he had a thing for accident cases and just wouldn't budge. The client did not want to fight the charge, so I had her enter a plea of guilty. There was a "pre-sentence investigation" (PSI) where my client met with a probation officer who made a sentencing recommendation to the judge.

Aside from this DWI incident, this client turns out to be a really good person. The probation officer recognized that she did not need to be supervised by the probation department -- they deal with people who have far more serious problems, and the client was already in a heavily supervised environment. The recommendation was even better than that - no fine. I'm still not sure a judge can do this, but there was no fine, saving the client $500.

For DWI lawyers, "plead to the charge" is unacceptable. Faced with that offer, a good DWI lawyer will insist on the entire process, including a trial if necessary (as long as we have a client willing to pay, of course). We win a lot of these cases, more than half of the ones we fight (warning - your mileage may vary - okay officially: prior results do not guarantee future performance - we might lose your case). I should define win also ... if as a result of fighting the case we get a better deal (such as a speeding ticket), that's a win. This usually happens because something in the case has gone well and the ADA knows the case is in trouble. But we win for real too. We won a jury trial a couple months ago (BAC of .32, offer was plead to the charge - he wasn't driving, listening to the radio in the parking lot with the engine running). We've gotten evidence suppressed in a bunch of cases - this usually means the results of the chemical test (BAC), and that usually means the prosecutor can't go forward. We've gotten cases dismissed on "speedy trial" grounds.

If the case isn't going well, we can always make the "plead to the charge" deal before trial (even during trial). And if we lose at trial, the PSI might suggest a lesser sentence than the deal anyway -- they rarely suggest worse.

More and more DWI lawyers are fighting. As a result, courts are getting busier and the front line prosecutors are getting overwhelmed. We've seen ADAs get fired for making one mistake - if it hits the media anyway. The office already had high turnover, and it seems to be getting worse. Some other DAs have adopted similar policies, but in practice their front-line ADAs have more flexibility.

The increased number of hearings and trials shows what we've known for quite a while. The police make a lot of mistakes. We're also finding that a lot of jurors don't like DWI cases. Maybe some of them drink?
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