DWI: A Problem With Plea Bargaining Policies

As a criminal defense lawyer sometimes we get cases where we have pretty good but not overwhelming evidence that our client is innocent.

In some counties, I contact the prosecutor and explain the evidence. Sensible prosecutors will agree to a deal where my client pleads guilty to a lesser offense that's better than the original charge. Yes ideally it would be dismissed but this compromise tends to make everyone happy.

Then there are counties where the District Attorneys have strict plea bargaining policies.

An example is a recent DWI case where we had great evidence. Police documents indicated our client may not have been driving (something they have to prove beyond a reasonable doubt). On video, one of the cops said he was surprised the breath test result was so high because our client seemed sober. And he looked and sounded completely sober. This took place in a county where the DWI has a strict policy on plea bargaining for DWI cases. Due to policy, the only offer was for our client to plead to the charge (link is to a previous post about such policies).

A reduction to DWAI would have been reasonable and my client would have accepted it. I'd prefer a dismissal or a better deal of course, but it would have been reasonable.

Since that was not possible, we did not discuss the evidence with the DA. We simply prepared for trial. When trial came, the flaws suddenly became apparent and the case was dismissed.

The policy led to a lot of waste. My client spent a lot of time and money. The judge and court staff wasted time. So did the prosecutors. If they made deals on cases like this, they'd have more time for the stronger and more important cases. This is a DA's office that has blown some big ones.

Perhaps the worst, about 30 prospective jurors sat in court for hours.

I appreciate the concern about drunk drivers. Through my work I've seen the harm more than most. But the punitive approach is wrong, especially with defendants who have clean records. The focus should be getting drunk drivers off the road and into treatment. Plea bargaining accomplishes that.

Plea to the Charge

As lawyers handling traffic and criminal cases, we will generally talk to the prosecutor and see what kind of deal they're willing to do. In most cases we get some offer for our client to plead guilty to a reduced charge. Simple examples include reducing a moderate speed to a parking ticket, a high speed to a lower speed, a misdemeanor to a violation, or a felony to a misdemeanor.

Sometimes it's straightforward like that, although in many cases there are subtleties about what reduced charge is best for the client. In drug cases, it's important to get a deal for a non-drug-related charge for young clients who might go to college. Drug convictions can make a person ineligible for financial aid. The reduced charge in traffic cases can make a big difference in things like insurance rates.

There are some situations where the defense lawyer is confronted with the offer of "plea to the charge." This is not really an offer. Plea to the charge means that the defendant pleads guilty to the offense they're charged with. If you're charged with a 97 mph speed, it means pleading guilty to a 97 mph speed. If you're charged with DWI, it means pleading guilty to DWI -- you get no reduction.

I attend seminars as often as possible, and one of my favorite speakers at these seminars put it this way once: "Why would anyone plead to the charge?" The point is, if you reject this deal the worst thing that can happen is that you're convicted of the same thing. On the other hand, all sorts of things can happen to lead to either a dismissal or conviction on lesser charges.

We put this into action a lot. Certain situations make the "plea to the charge" offer more likely, and we charge more for these. A typical example is a DWI with an accident, refusal, or a high BAC. In some counties speeding in a work zone leads to this as well. We charge our clients enough to cover our time to fight the charge, rather than just making a deal.

Many lawyers walk into this situation unprepared. They come back to the client and tell them they did the best they could, but the DA wouldn't agree to a reduction, so they pled the client guilty to the charge. At this point the client is wondering why they hired a lawyer. I'd like to say we've never done this in our practice, but it has happened once or twice. In one speeding case I remember, we had not charged the client enough and said we would require an additional fee to do a trial. The client declined. I can live with that one - though I still didn't like it.

In another, we had an attorney appear for us in a distant court and he pled to the charge rather than do a trial. I got pretty mad, but restrained myself and simply explained that in the future he would have to do a trial in that situation. I'm comfortable he understands this now.

When you are prepared (and adequately paid), you fight rather than plead to charge. We have won many cases like this. Sometimes it is so simple as the police officer doesn't show up for the hearing or trial. In other cases the officer testifies poorly, reflecting that he did a poor job at the time of the incident, or in his paperwork afterward. And of course, sometimes you lose. I've been surprised at how often we win in these situations.

One of my hopes is that, over time, the "plea to the charge" prosecutors will learn that offering better deals means less work for them and also, maybe they'll decide they don't like losing. Of course, the "plea to the charge" position is not necessarily the fault of the ADA at the court that night. Especially in Albany this is the result of a policy decision by the higher-ups in the DA's office, and maybe the DA himself.