What Factors Do You Consider When Deciding To Take A Case To Trial?
When a client comes to us, we will talk about the facts of their case confidentiality. We are looking for one thing in almost every case, and that is how we are going to get this case dismissed, or per our previous questions, is there a way in pre-filing decisions to have an influence within this case. In most cases, is there a way to get this case dismissed? We look at the elements of the offense, can they prove them, and is there a reasonable doubt? Therefore, in every case, our first goal is to try to get it dismissed. We do everything possible, which means going through the discovery process, seeking any videos, or audio that exists, 911 calls, machine records, blood records, witness statements, anything that we think can help to make the case go away, that is what we strive to do for our clients.
Once we have gone through that process, and by the way, from the beginning, we look at every case as if it might go to trial. Not a lot of cases go to trial, but the ones that do you need to be ready. That reason, we are doing everything we would need to do if the case did go to trial. At some point in a case, a decision is made. If it looks like it is not something that can be won at trial, and not something, that is going to be dismissed, we advise the client on his or her options. We will discuss what route they want to take if the odds are poor at trial and the case is not going to be dismissed.
In most cases, the client will want us to get the best deal we can get, and there may have already been some negotiations started, but at that point, when the client decides; not the attorney, to take the best deal we can negotiate, then that is the route we follow. Sometimes it takes pushing a case to trial where we will get the best offer. The problem with that for any client is that we have to be ready for trial, and the fees will be higher. Nevertheless, if that is what it takes to get the best offer, then that is what we will do.
The clients need to know in certain counties there are judges, it does not happen often, or DA’s offices that will take these offers off the table once the case is set for trial. The client needs to know that as well, and what their choices are going to be from this standpoint. The plea bargain is something that can be negotiated typically with the DA’s office. In some counties, the courts are involved in determining the sentence if someone pleas to a specific charge. In San Matteo County, this happens often. Most other counties leave it up to the DA’s office for negotiations.
What factors do I consider? Strength of the case is it something where we think we can have a hung jury. The juries are very tough to get a unanimous not guilty verdict, but if we have a compelling case, whether it is a no drive defense or lack of proof beyond a reasonable doubt. We look at all the facts, was the case at, or over 0.08% BAC, was their lack of impairment? We look at field sobriety tests, machines, blood tests, rising blood alcohol level cases, was there a margin of error on the case, which would make the results potentially lower than what is on the paper? Did the case show a 0.08% or a 0.09% BAC? The lower BAC is a better defense in these cases. We look at strengths, and weaknesses, all the issues, and then advise the client of their options. The client makes the final choice.
Is The Initial Plea Deal Offered To First Time Offenders Better Than The Actual Sentence?
In almost every DUI case, the prosecution is going to offer probation. Typically, it is a three-year probationary deal. On a misdemeanor DUI, it is three to five years. The prosecution will offer that, if you go on probation for three years, you must stay out of trouble for those three years. You need to jump through hoops, complete these things, and that will be our deal. As a defense attorney, we try to negotiate that lower and lower. You have the right to refuse this offer. “I am not going to take the plea deal; I am just going to plead to a DUI. I don’t want to be on probation.” The maximum penalty for this is six months in jail.
Someone has a right to serve their full sentence, and they can ask for it. I have never seen anybody do that. If someone is facing other types of charges, like a felony, they may want to do something like this. If someone is on probation, and if they do a plea-bargain to a standard first DUI offense, or it may have enhancements for high blood alcohol level, but that usually results in a three year probation, and a fine around $2,000, sometimes more. They might be able to attend a DUI school, typically anywhere from three to nine months, depending on the blood alcohol level with the first offense.
There are zero tolerance requirements during your three years of probation. You cannot have any alcohol in your system when driving. In addition, if you violate any of these terms of probation, you can get up to six months in jail. In most counties, they want at least a couple of days of jail time, very often you get credit for time served. If you are in custody over two calendar days, which can mean arrested at 11 o’clock at night, and released and 4 o’clock in the morning, sometimes you may have to do jail time, which in almost every first offense case, you can go through the sheriff’s work program. With some plea offers there could be additional penalties, and it depends on blood alcohol levels. In some counties, if you had a prior DUI more than ten years old, they may penalize you for that as well.
If it is a second offense, everything goes up, and you are looking at a suspended sentence or a suspended license on a first DUI for at least a month followed by five or more months of restricted driving. That would be a penalty that the DMV would place on you for the administrative hearing. On a second offense, you are looking at having an ignition interlock device placed in your vehicle for a year or two, sometimes more. Actually, I have seen more counties asking for ignition interlock devices. For example, Napa County asks for them all the times if you show a BAC level above a 0.15%. There is a law in California that will begin in 2019. In less than two years, that will require anybody convicted of a first offense DUI in California to install an ignition interlock in his or her vehicle in order to drive again.
A little more on second offense DUIs, the DUI School is an eighteen-month program, the maximum penalty is a year; minimum penalty is ten days in jail. This can begin with alternative sentencing, work programs, and those alternative programs. In California, A DUI is not a deferred entry of judgment, or deferred judgments, in some states it is, but California definitely does not for any DUI cases. The law on this is influx in regards to veterans, is something being dealt within the courts, and they are still trying to figure out what the final ruling will be. A decision is expected sometime this year on that issue.
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