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What Actually Happens At A DUI Sentencing Hearing?


A DUI sentencing hearing depends on what type of a DUI we’re talking about. There are felonies, misdemeanors and sometimes there are infractions if it’s an under 21 situation. Typically what will happen in California, in the San Francisco Bay area, is someone will be in front of a judge with their attorney or sometimes it’s just the attorney with paperwork that waves a client’s appearance and a change of plea from not guilty to guilty would be entered and then a sentence would happen. Typically that sentence has already been agreed upon and negotiated between the attorney and the prosecutor. The court usually has very little say in what’s going to happen.

Sometimes, if the district attorney is not being reasonable or is unable to reach an agreement and the client does not want to go to a jury trial, then we might be able to get the judge involved with doing what’s called Pleading Open; this is where you plead to everything you’re charged with and then the charges would be dismissed as often one or more are when we negotiate with a DA and reach a disposition that way. The court would usually let us know ahead of time if we plead open what the penalty would be and that would be something that we would agree to if it looks like it’s a better result for our client. Now, many judges will not do that, will not do a plea open in the DUI; some will in certain circumstances but it’s not something that we can expect to happen in those cases.

The sentencing hearing is something for a misdemeanor that would more likely just be that the sentence is read after the change of plea. The judge would make sure that the client has been admonished by the attorney, that the client has gone over the plea form showing the constitutional rights that they give up by entering a plea of no contest or guilty. A no contest plea is the same as the guilty plea for purposes of the criminal conviction. The sentence is read by the judge. Usually they will say, “You have to do this DUI school, this length, pay X amount in fine”, then maybe jail or a sheriff’s program time, and probation typically for three years. It can be from three to five years and in almost every case now for misdemeanors it is three years in most counties and in the Bay area. There may be some type of community service. There may be AA meetings. There could be a number of different penalties that they bring up and you, as a client, would be aware of it for the sentencing and there usually are no surprises there.

What we’re dealing with in felony sentencing hearings can be a little bit different. Sometimes we’re dealing with usually a probation report from the probation office, which is recommending a specific sentence or guidelines for the judge in sentencing, X amount of time, jail or they may be recommending alternative jail programs such as residential treatment, alcohol monitoring, home detention and those kinds of things. The judge will take that into consideration. The judge will hear from the defense and from the prosecution about why they believe what type of sentence is appropriate. Typically, the judge finds something in the middle, often close to what the prosecution wants but sometimes they’ll side with where we’re going.

It’s a culmination actually of usually many months of discovery, negotiations between the defense attorney and the district attorney and sometimes conferences with the judge to help work things out. In some counties, the judges want to get involved; in others, they don’t want to get very involved. There are a lot of different things that can be done to try in felonies or misdemeanor sentencing hearings. There’ll be many things that someone can do to try and get a better result in their case. It would be something that everyone who gets arrested for a DUI should be considering from day one. Whether or not you talk to an attorney or talk to an attorney who is giving you this information, and not all of them do, some do, the better ones do; others aren’t going to give you all this information if you’re going to a bigger firm that is handing up the case to a number of people or a lead generation firm or someone where they’ve got call screeners who aren’t the actual attorneys who are dealing with the judges and the DAs on these cases. If you’re hiring a company that has someone talk to you and someone else does the case, you may not be getting the information that you need, which is why it’s very important in the San Francisco Bay area to talk with the attorney or one of the attorneys who’ll be handling your case. It’s got to be someone who is experienced or who mainly does DUI defense or in my case, someone who only does DUI defense. This has helped a lot of clients who I’ve represented over the last 25 years plus to minimize the penalties that happened.

Whether it’s a first, second, third, fourth DUI or however many you have, one area that is very important is from the beginning is to start doing a program, a self-health program that will show the court or show the prosecutor handling the case, the DA’s office, that you’re taking this serious and they’re not going to have you back here again. Most of the time when my clients do this it helps them realize the severity of something like this and how important it is to not do it again. It helps people change their ways; not everybody can stop drinking or using drugs but many can. Most make one heck of an effort especially while the case is going on. For some, it sticks; for others, if it doesn’t, at least they’re a lot more careful in the future and that’s what you’re trying to show someone who is going to be looking at you. A prosecutor who looks at your case looks at hundreds or thousands of cases and they see someone that they may cut a break to versus someone who doesn’t get a break. Start going to AA meetings right away, and the more you do per week the better, and keep doing it while the case is going on and afterwards as well. If I can walk into court or into a meeting with the DA and show them that my client has done so many AA meetings over a period of time and I have written proof of that because you get signatures when you go to meetings, that helps, especially when the case involves accidents, high blood alcohol levels, multiple offenses, injuries, refusals, and things like that. You need to help me help you.

There are AA meetings or non-religious based alcohol awareness meetings and there are NA meetings. Someone especially who has multiple offenses and a real high blood alcohol level, accident, injury, or any felony especially, should definitely be considering doing a residential treatment program whether you think you need it or not as it can really help. If you start looking into that and get enrolled right away, you will really help your lawyer get a better result for you. Someone who goes into treatment right away versus someone who goes into treatment three or four months down the road makes a big difference; it’s still effective but it’s a lot more effective if you do it as soon as possible. There are different residential treatments that people can do. If your insurance is Kaiser, they may be willing to foot the bill for a day treatment, which would be a certain number of days a week, or they have evening programs, it just depends on which one works for you before they would foot the bill for a residential treatment program. They want to make sure day treatment works. It may be the best you’re able to do through insurance but it sure is nice when they pay for it. You may have to foot the bill yourself to do residential, but if it’s a serious enough case and we’re trying to keep you out of jail for a long period of time, it’s in your best interest to help yourself by booking into a residential program.

I would definitely talk with whatever attorney you approach as soon as you make that first call about that as a possibility and start doing the research because this is serious stuff. I can’t tell you how many times when I’ve been able to point out to a prosecutor and/or a judge that my client got arrested, say, on the second of the Month and on the fourth or the third or the fifth or whatever, there is the first signature of an AA meeting. We’ve got a letter from a program saying that within days they had the first contact with them and then got into the program once bed space is available or whatever. If we can show that and show how serious someone is and how active someone is being in taking steps to make sure this is not going to happen again, show them that you’re accountable, that can help in trying to get the penalty reduced on your DUI case. Sometimes that can be helpful not just in getting the actual penalty reduced but in getting the charge reduced and that can be night and day for people. Whether it’s for the type of job you have or the field you’re in or the job you’re looking for, and you have a professional license then that’s a huge deal. If you need to have a driver’s license or drive for a living, getting a lesser charge, a lesser sentence can also help for that. There are just so many ways that it is important. I just highly recommend for anybody who is dealing with a DUI to get active.

Immigration obviously is a much more concerning issue for many people now than it was before with the Feds all over the place. I talk to immigration attorneys and in the last year, I’ve talked to immigration attorneys a lot more than I used to. I’m always advising my clients who do have immigration issues before we do anything to understand and consult with an immigration attorney and talk about what the consequences would be of different outcomes. Recently, in dealing with some different immigration attorneys, hearing that a reduced charge to a wet reckless from a DUI would be a huge help in whether the case was someone who’s trying to obtain certain immigration status or whether they’re a DACA recipient, it all just matters. In order to get reductions and get the prosecutor to be sympathetic to you, which basically means willing to consider cutting you a break, you’ve got to help me help you. That means meetings, programs, and all that. It’s tough getting the DUI and you really need to take it seriously and consider what I’m talking about with self-help. Something that can be very helpful when I’m trying to show the DA that my client is someone who deserves a break is if you do community service work. Whether you’ve done it all your life or for the last year or two or the last month or you just started after you get the DUI, whether it’s with your local food bank or any organization that needs help, doing that and getting a letter and showing that you’re a community service oriented person, you’re someone who gives back to the community, that can help as well. It can help a lot in some cases. I would advise getting involved in that as well and finding the time. I know we’re all busy and we always feel like we never have time to do anything, but time is what you make of it. The earlier you do it the better; start right away.

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Aaron Bortel

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