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As a lawyer specializing in defending those accused of DUI, I hear this question all the time. Someone will come see me in my office for a free consultation. After telling me about the facts of their arrest, the basis for the traffic stop, their performance on field sobriety tests (FST’s), and the results of the chemical test of their blood or breath (if they took one), they may say to me, in all earnestness, “Why bother fighting this?” A fair question; there are several good reasons.
If you don’t fight your case, if you go into court and plead guilty to drunk driving and throw yourself on the mercy of the judge and prosecutor, there is a 100% chance that you will be convicted of drunk driving. I’ll say it again: if you plead guilty to DUI, you will be found guilty of DUI. I guarantee it.
In California, persons charged with driving under the influence (DUI) are entitled to a presumption of innocence. Persons charged with DUI in California are also entitled to a jury trial (not so in some other states). If the prosecutor cannot convince all 12 of the jurors of a defendant’s guilt, there is no conviction. There are three possible results following a jury trial: all 12 agree on the defendant’s guilt; all 12 agree on the defendant’s innocence, or some vote one way and some vote another. The latter outcome is known as a “hung jury”, and if you happen to be the defendant in a DUI case, you are happy to have one, since it will likely mean that the case will be dismissed.
To sum up, the defendant in a DUI case need only convince one of the 12 jurors to vote not guilty in order to win his or her drunk driving case. One out of 12. The alternative, often times, is to throw yourself on the mercy of a system that has no mercy. Isn’t that reason enough to fight your case?
If you are fortunate enough to be facing a first-offense driving under the influence charge, there is another reason to fight your DUI case. Every person that comes to my office, charged with a first-offense DUI, swears that they will never be in this situation again, that the notion of being charged with a second-offense DUI is so remote as to be impossible. Every person who comes to my office charged with a second-offense DUI wishes they would have fought the first one. Invariably, the first one presented issues that are absent in the second one. The first DUI is the one you want to fight, if, for no other reason than ensuring that you are not susceptible to a charge of a second-offense DUI.
In California, there is a seven year “washout” period regarding DUI convictions, meaning that if someone is arrested for a DUI offense within seven years of a prior DUI offense, the second DUI will be charged as a second-offense DUI. If that second arrest occurs more than seven years later, the second arrest is simply another first time DUI. (The seven years goes from arrest date to arrest date.) The penalties for a second offense DUI are substantially more severe than for the first. This is why folks are sometimes lulled into pleading out their first-time DUI arrests (and regretting it later). They feel like the consequences of the first-time DUI are bad, but not so bad, and they can suffer through and at least take comfort that they will never be in that situation again.
Seven years is a long time. I had a client who had a prior DUI arrest that was reduced to a “wet-reckless”, a reduced charge, but still priorable for DUI purposes. Six years, 11 months and two weeks later, she was arrested coming home from her office’s Holiday party. Because the county where she was arrested treats DUI arrests terribly harshly, the plea bargain offer for this professional person, with no other prior criminal record, was for 45 days in jail. (We rejected the offer, went to trial, and the case was dismissed following a hung jury, notwithstanding the breath test results of .14. We also won her DMV Hearing.)
Also, if you plead guilty (or “no contest,” which is treated by the court the same as a guilty plea, although it cannot be used against you in a civil lawsuit), you will be placed on probation for three to five years. During that time, you will be required to do many things, such as pay fines, attend DUI classes, and so on. One of the terms and conditions of probation in any DUI case is that the probationer is not to drive with any measurable amount of alcohol in their body.
This can be a real problem if the second DUI arrest takes place while someone is still on probation from the first. In order to convict someone of a criminal act (such as driving under the influence), 12 jurors must unanimously agree that they are convinced beyond a reasonable doubt in the defendant’s guilt. It is the highest standard in the law, and it is the jury that gets to decide it. As mentioned above, if only one out of 12 sides with the accused, a hung jury is the result, which is great news for the defendant.
However, in the case of a probation violation, where someone is accused of violating the term and condition that they not drive with any alcohol in their body, they don’t get a jury trial. It is up to the judge. And the judge doesn’t have to be convinced beyond a reasonable doubt. The judge only has to be convinced by a preponderance of the evidence. This is not the same high standard of a criminal case; this is a much lower standard, which has been described as just tipping the scales in favor of one side or the other. Being on probation is, potentially, a recipe for disaster. It is not a responsibility to take lightly.
Thankfully, we live in a country that has Constitutional safeguards. The right to a jury trial in a DUI case would be meaningless if the person charged with DUI was punished for exercising that right. If you or someone you care about has been charged with a DUI, or some other drunk driving type of offense, please consult with a professional that specializes in defending drunk driving cases. You have nothing to lose, and everything to gain.
It is far better to have fought and lost than never to have fought at all.
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