Jan 03, 2007 Converting a drunk driving charge to a speeding conviction
Here is a recent example of the necessity for fully preparing well in advance for trial, for being fearless about proceeding to trial, and for using time as a commodity in negotiations. This approach is needed for all trials, both large and smaller; the following example is from a federal drunk driving case.
Our client is caught speeding on a federal roadway, and ultimately is prosecuted in federal court for allegedly violating the state of Virginia’s laws against driving while intoxicated and reckless driving (due to speed). The prosecutor is a gentleman, but still is the opposition pursuing enforcement of laws that set an unjustly low threshold on the blood alcohol level permitted in a driver’s body, let alone the substantial unreliability of alcohol breath tests, alcohol blood tests, and field sobriety tests. The prosecutor calls me before the initial court appearance date, offering to "save the time" of me and my client, in case my client is interested in pleading guilty as a first-time offender on the initial appearance date (which would have involved the prosecutor’s recommendation of, inter alia, a suspended sentence, a fine, and probation conditions).
Time, though, can be a valuable negotiating commodity, one which all criminal defendants are wise to use to their best advantage. I secure the prosecutor’s confirmation that the guilty plea offer would be left open through the trial date, and know that the available magistrate judges — if we waive the right to a jury trial and a trial by a District Court judge (the drunk driving charge is jailable up to one year, and thus not a petty offense) — likely will not harm my client much more by a guilty finding at trial than through a guilty plea.
A few days before trial, the prosecutor leaves me a voice mail about my client’s interest in pleading guilty. Before I have a chance to call him back, he calls me again about the case. I wonder if I smell blood on the opposition.
When I call the prosecutor back, he tells me the breath technician is out of the country, and that — absent a guilty plea — he will move to dismiss the case, with the intention of recharging the case later on. Whether or not the prosecutor will be successful with such an approach (see, e.g., Fed. R. Crim. Proc. 48(a) ("the government may, with leave of court, dismiss an indictment, information, or complaint") and 18 U.S.C. § 3161 (factors for determining whether one’s speedy trial rights have been violated)), the risk still exists that the prosecutor will decide to proceed to trial, anyway. A conviction for reckless driving is still possible, because the breath technician is not needed to prove reckless driving based on the alleged speed. The risk of a conviction for drunk driving is lower with the breath technician’s unavailability, but is still a possibility through the testimony of the arresting office, who remains available for trial, about our client’s behavior after being stopped for speeding.
In any event, the prosecutor offers to drop the drunk driving charge in exchange for pleading guilty to reckless driving, whereby the prosecutor will not seek executed jail time. I explain to the prosecutor that such a conviction will expose my client to adverse results with the authority that issued his driver’s license. We go back and forth, and the prosecutor finally offers to dismiss the drunk driving charge in exchange for a guilty plea to speeding — amended from reckless driving — whereby the prosecutor will seek only a fine and no probation period and no jail time (sadly, speeding on a federal roadway is still jailable in this instance).
My client accepts the speeding plea offer, and walks out of court with a fine and court costs to pay, and nothing more. Time and negotiations are on our side. Jon Katz.
ADDENDUM: The foregoing discussion is an example of the importance of going to court with a lawyer for all jailable matters, and for numerous non-jailable criminal matters (e.g. for non-jailable drug paraphernalia charges, for public drunkenness charges, and for charges of possessing an open alcohol container, all or some of which can pose probation and parole violation problems, stiffer sentence exposure for any future convictions, adverse employment and security clearance problems, and adverse immigration consequences for those who are not United States citizens).
The foregoing discussion also points out the benefit of keeping guilty plea offers open until the trial date, which is more often possible in the bench trial courts where I appear than for cases set for jury trials. When the plea offer is kept open until the trial date, it ordinarily is wise not to accept the plea offer before the trial date, because sometimes a better plea deal can be reached on the trial date, and sometimes the prosecutor will not have essential witnesses or evidence available to obtain a guilty verdict.
In another recent example of the benefit of waiting until the trial date when a plea offer is left open until the trial date, my client was charged in federal court with driving on a license that was previously suspended for a Virginia reckless driving conviction. The prosecutor left open a plea offer for driving while suspended whereby no executed jail time would be sought. The magistrate judge was unlikely to do worse than that upon a trial guilty verdict, so I went back and forth a few times on the trial date with the prosecutor and arresting officer about the possibility of pleading guilty to speeding in exchange for a hefty fine and no jail time or probation. It worked. Time, again, was on our side.