New Charge When Facing A Pending DUI?


It depends on the jurisdiction and how the case is started; if it started as a misdemeanor with the issuance of a citation at the time of arrest, there aren’t any conditions of release. If they see a judge, meaning they’re booked into custody and are then released, conditions of release will be set.  Common conditions of release are don’t drink any alcohol and don’t commit any other crimes, so violating those conditions can be a problem. If they’re charged with a felony, no drinking and no crimes will certainly be a condition of release, so if they were charged with a felony DUI and get arrested for a second DUI, they won’t be eligible for release on the second one.  In order for the conditions of release to have been violated, the person has to have been seen by a judge and the judge has to have set conditions of release; if the person is simply a citation and not booked and required to appear in front of a judge, there really aren’t any conditions which can be violated.

What Do You Advise Clients Contemplating a Guilty Plea in a DUI Case?

Unless there are good reasons why the plea offer is a good idea. I think it is always better to wait until later in the case to decide to plead guilty.  This is because unanticipated things can happen which can affect the case in the person’s favor.  You don’t know if you’ll be found guilty to begin with, nor do you know if the case will be dismissed or reduced to something less serious, which is the number one reason you may not be found guilty in the end.  Secondly, the timing of the sequence of events can make a difference in your life.  For example, by waiting you may have some control over the timing of the license suspension so if there is a less onerous time to endure the license suspension, such as if you’ll be out of the country for 30 days and won’t be driving at all.  If you just plead guilty, you won’t be able to do that.

Also, if you just plead guilty, you’re not necessarily aware of all the collateral consequences because the judge is not required to advise you of those consequence. For example, say you’re a flight attendant and you plead guilty; you may not be aware that you will be effectively barred from entering Canada until you go through onerous procedures under Canadian law and which can’t even be done for a couple of years after arrest. A flight attendant on a flight to Vancouver, will not be permitted to get off the plane because they’re immediately deported. Being unaware of the consequences means you can’t work to minimize them in advance; that’s a big mistake people make when they just plead guilty to get it over with, they do so without realizing what really may happen to them.  One thing I do in my practice is to create a letter explaining every plea offer in great detail with descriptions of as many collateral consequences I can think of so my clients can be aware of them.

As for another collateral consequence, for a first offense, say that you travel for work and as a part of that, you have to rent a car.  If you two just plead guilty and have to do an ignition interlock device you will not be able to rent a car. Also, if the rental company runs a record check, which is a practice of most companies, they won’t rent a car to someone who’s had a DUI within the last few years. That’s another example of how a person can set themselves up for trouble by pleading guilty and not realizing the consequences ahead of time.

Is there Such a Thing as Mercy of the Court?

It varies a little bit by court; many courts and prosecutors on misdemeanors; aren’t unsympathetic, but what does it mean to be sympathetic? The courts have mandatory minimum sentences that they can’t get around, so being sympathetic doesn’t mean they can simply just ignore the mandatory minimum sentences.  However In terms of whether other personal factors make a difference; it varies by court, a person’s circumstances and who the prosecutor.  Sometimes I can get a plea to something less serious.

For example, I recently had a DUI of the drugs being marijuana which it was active marijuana so there was no real defense to the charge, but based on both the facts of the case and the impact on my client’s life – he worked as an air-conditioning repairman and had to drive, so if his license had been revoked for a year, he’d lose his job.  I explained that to the prosecutor, and since the prosecutor had a bit of a problem with the case, anyway, the prosecutor gave me a better plea offer of reckless driving, with no effect on his driver’s license. That would not happen in a number of jurisdictions here but in that one, it did.

Coming back to the initial point, sympathy doesn’t mean the court can ignore the mandatory minimum penalties, which are very harsh. Sympathetic family factors may make a difference in a plea offer, depending on both the facts of the case as well as who is the prosecutor.

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