Affording The Penalties Of A DUI Conviction
One way of looking at it is not to decide whether you could afford to pay a DUI attorney to go to trial, but rather can you afford the consequences if guilty; meaning can you afford the difference in the consequences and end up with a longer license suspension, the interlock requirement, more jail and higher fines.
Affording The Attorney
The second way to look at whether or not you could afford an attorney would be to see if you could afford the cost of going to trial. This would not be an issue in my case, because I do not charge a fee for going to trial; although many lawyers do charge an additional fee. So for my clients there is not a question if they can afford to pay more money to go to trial because I do not charge an additional trial fee.
Trial Fees
For example, some lawyers might say it would be $4,000 up until the trial whereas it would be an additional $4,000 if they did go to trial. Attorneys may have a legitimate reason for doing that, although I think it would in a sense be a disservice because the defendant ought to be able to decide whether or not to go to trial based on the merits of the case and their circumstances as opposed to their ability to pay a lawyer more money.
The second reason I do not charge a trial fee is because I think that often in order to do an adequate job for that client, we would have to set the matter for trial even though we may not even try the case. For example there is a possibility of a better plea offer if the case is set to trial. If the client is with a lawyer unlike me who charges a trial fee and if the client cannot pay that trial fee the client will never know if they can get a better offer after the case is set for trial because they cannot afford to set it to trial. This is only one example of how I think charging a trial fee is a disservice for the client.
In short, if a client wants to know whether they can afford to go to trial, the answer would be yes; because in terms of charging trial fees from my clients it would not cost them anything extra.
Prior Complications Can Complicate Your Case
This can become a slightly complicated situation if the client did have prior convictions but the prosecutor did not know about it. Some lawyers like to slide by and say they did not know for sure whether their client had any prior convictions. However, I do not believe in doing this because it could ruin the credibility of any attorney if they are caught.
The second way to deal with this would be to just set the matter for trial and then if necessary try the case; not necessarily because we felt we would win, but because if we tried the case then the client might be found guilty of something such as a first offense misdemeanor instead of a second offense.
Last year I did this three times when I represented clients who had prior convictions that I knew about, whereas the prosecutors did not. One of the cases featured a breath test whose results were something like a 0.25%. I knew that the odds of my winning that case were not very good. I knew that if I went to trial and lost, my client would have to serve 180 days in the county jail. So by going to trial and losing but without the prosecutor knowing about the prior conviction we ended up with 15 days.
In this case my choice was to basically avow he had no priors when he actually did and a simple record check would find it, or else I could try the case, lose and end up with a first offense, which is what we did.
Attorneys Who Charge Trial Fees Are Bound To Go To Trial
Once a matter is set for trial, attorneys who charge a trial fee have to be on the case. They would not be able to say they would set the matter for trial and then later not do it. Attorneys who charge more for a trial would get the case to the end of the pretrial process and then ask for more money to set this matter for trial.
Plea Offers Can Sometimes Get Better By Waiting It Out
Additionally, plea offers could sometimes actually get better as the case moves along. I handled a couple of those types of cases last year and one case in particular was an Extreme DUI case involving an accident. The offer was to plead to the charge, so we set the matter for trial because the client was not charged a trial fee.
Two or three days before the trial, the prosecutor suddenly decided they had a problem with the case so they offered a plea of Reckless Driving. Of course, this was a good resolution so we accepted it. If my client had paid a trial fee, she would have had to either plead guilty to the Extreme DUI when it was still at the pretrial stage or I would have withdrawn from the case and she would have been on her own.
This is one of the reasons why charging a trial fee would do a disservice to the clients, although I do know other people who look at it differently.
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