The following is a story of two typical criminal defendants who have been charged with a DUI/DWI (driving under the influence of alcohol or drugs). Duncan Smith is a first time offender with a clean record. Sandra Jones is a repeat offender who was convicted of a DUI a year earlier. The story will walk you through the entire process, starting with the arrest all the way to the plea entered in court. In the end, both DUI cases settle with a plea bargain, which happens in approximately 90 percent of all criminal cases. However, the deals they get are very different, which is also often the case in DUI cases.
All DUI cases are different, and these examples are meant to demonstrate the issues involved in these sorts of cases rather than tell you exactly how a particular case will proceed.
Duncan Smith was driving home after meeting up with a friend for some drinks to celebrate the end of another week. He only had two beers, but wasn't a particularly large man and hadn't eaten lately, and the effect was noticeable on him. Still, feeling confident that two beers wouldn't incapacitate him, he said goodnight to his friend and drove home. On the way home, his cell phone slid out of his pocket and under the seat. He glanced down to see where it had fallen and by the time he looked up it was too late; his car jumped the curb and smashed into a fire hydrant.
Fortunately, Duncan had been driving at a relatively low speed and he was able to walk away from the crash. As he got out of his car to survey the damage, a police officer showed up. Suspecting alcohol, the officer gave Duncan field sobriety tests, making him recite the alphabet, stand on one leg, and try to touch his nose with one finger. The officer shined a flashlight in Duncan's eyes, making him look left and right, and saw that his eyes were red and watery. Even though Duncan passed the sobriety tests, because he had hit a tree and his eyes were red and watery, the officer placed him under arrest and took him to the station to get a blood test. The test showed that Duncan's blood alcohol content (BAC)was .09, just above the legal limit of .08.
Sandra Jones was driving home after a long night of drinking at the local tavern. It had been a rough week and she wanted to let loose a little. Sandra was fairly petite and had been drinking shots that she had long since lost count of. She knew she probably shouldn't try to drive home, but it was very late, it wasn't far to her home and she didn't want to take a cab and then have to come pick up her car the next morning.
On the way home, a police officer saw Sandra noticeably weaving in and out of her lane and pulled her over. The officer noted the smell of alcohol on her breath, asked her for her license and then asked her to step out of the car. Sandra knew that she was better off being polite and calmly did all that the officer asked her to do.
Once Sandra was outside of her car, the officer asked her where she was coming from and if she had been drinking. Sandra knew her rights, and said that she'd like to answer, but should probably consult with a lawyer first. The officer then told Sandra that she needed to take some sobriety tests (the same that Duncan had to perform).
Sandra had difficulty standing on one foot, and missed her nose twice trying to point to it. The officer noted her bloodshot and teary eyes and then gave Sandra a Breathalyzer test. The test reported that Sandra's BAC was .12, well above the .08 limit in her state. Sandra was arrested and taken to the police station.
After Duncan's blood test revealed that his BAC was over the legal limit, Duncan was booked at the station. He was photographed, stripped of his possessions except for his clothes and his watch and put into a jail cell.
Duncan's booking report read: Suspect Duncan Smith. Inventory black leather wallet, containing identification, two credit cards, and $40; 4-door black Nissan Altima, impounded.
While Duncan sat in the jail cell, the arresting officer completed his paperwork, documenting the arrest, his investigation and attaching his pages of notes and comments. Once the officer's report was finished, it was delivered to the district attorney (D.A.). D.A. Beth Rinaldo received the report, scanned it and filled out the appropriate criminal complaint forms.
Like Duncan, Sandra Jones was booked, photographed, stripped of her possessions and put into a jail cell.
Sandra's booking report read: Suspect Sandra Jones. Inventory brown purse with wallet, containing identification, lipstick, a credit card and $60; 2-door red Toyota Camry, impounded.
While Sandra sat in jail, the arresting officer completed his paperwork just as in Duncan's case and delivered the report to the same D.A., Beth Rinaldo, who completed the appropriate criminal complaint forms.
After the police ran background checks on Duncan, an officer came to tell him that his bail had been set at $1,000 and that he was allowed to make a phone call. Duncan called his mother, who came down to the station and paid his bail. Duncan was given a summons to appear next week in court for an arraignment.
Police ran background checks on Sandra and found that she had a DUI conviction from the prior year and set her bail at $5,000. Sandra didn't know anyone who could pay her bail and was embarrassed to ask anyone in her family who might be able to. Sandra spent the night in jail and her arraignment was scheduled for the next day.
Having been bailed, Duncan returns home and is instructed to either hire a lawyer or contact the public defender's office to be appointed one. Not having much money, Duncan contacts the public defender's office and is instructed to meet with his appointed public defender shortly before his scheduled arraignment.
Disheveled and tired, Sandra was taken to the court the following morning for her arraignment. Sandra was informed that at her arraignment she could enter a plea, ask for a court-appointed lawyer, and ask to be released without bail.
Once at the courthouse, she was put into the courthouse lockup to await her hearing with Judge Dorothy Black. After waiting in lockup for three hours, a bailiff led her into the court room still handcuffed.
Judge: Sandra Jones? Sandra: Yes ma'am, that's me. Judge: You may call me "your Honor". Do you have a lawyer? Sandra: No, your Honor, I can't afford one. Judge: If you'd like, we can get a public defender to represent you if you don't intend to just plead guilty at this time. Sandra: I guess I should talk to a lawyer first, your Honor. Judge: Ok, we'll have the clerk get a public defender down here. Discuss it with the public defender and then we'll call you back in later. Sandra: Thank you, your Honor.
On the day of his arraignment, Duncan meets with his public defender, a young woman named Mary Swift, outside the courtroom.
Mary: Duncan Smith? Duncan: That's me. Mary: Hi, I've been appointed to represent you from the public defender's office. It looks like you've never been arrested before and have a clean record. Duncan: That's right, I've never had anything like this happen to me before. Mary: It looks like you were just barely over the limit, and with a clean record I can probably get you a pretty good deal. Duncan: I think that test was flawed, I mean it only put me .01 over the limit anyways right? Can't we just fight the test? I'm no alcoholic, I just had two beers with a buddy, that's it. Mary: Well, we could fight, and it's your right to if you want to. But challenging the test itself is not likely to succeed. You were given a blood test and they tend to be more accurate and harder to attack than Breathalyzer tests given on the spot. I would strongly suggest that you let me try to work out a deal with the D.A. based on your clean record and then consider your options. Duncan: Listen, you don't understand, I can't have this happen. I'm going to graduate soon and I'll be applying to jobs. As it is, I'm already in school and working a part-time job, I don't even have time for this. It's ridiculous, the police officer didn't even read me my rights! Mary: Did the officer question you? Duncan: Not really, he just instructed me to do those tests, which I passed, then he arrested me and they took a blood test. Mary: If the police didn't question you, then they didn't have to read you your rights. Listen, I understand the situation, let me go talk to the D.A. and see what we can do. Duncan: Ok, please do your best, I can't deal with this.
After her discussion with the judge, Sandra was returned to the courthouse lockup and sat there for several hours before a young woman, the same public defender representing Duncan Smith, comes to see her.
Mary: Are you Sandra Jones? Sandra: Yes. Mary: Hi, I'm Mary Swift from the public defender's office, how are you? Sandra: I've been better. I didn't sleep, can't shower, and I'm bored with all this waiting. Mary: Unfortunately you're going to have to endure it for awhile longer. This is your second offense, and the D.A.'s office requires that you spend 48 hours in lockup for a second offense. If you plead guilty this afternoon however, you can get out tomorrow. You'll go on probation, pay a fine and attend an alcohol program. Sandra: What if I want to fight the charges? Mary: It's your right to if you want to, but as your attorney I wouldn't advise it. I've read the police report, you failed sobriety tests, your eyes were bloodshot and the officer could detect alcohol on your breath. Given that your blood alcohol level was well over the limit, I don't think you'll get much sympathy. If you fight it and lose, you can get up to a year in jail as opposed to one more day, and you'll still be on probation, have to pay the fines and have to attend an alcohol program. Listen, I have three other clients I need to go see, so think it over and I'll come back before our hearing this afternoon.
While Duncan waited impatiently, Mary went to the D.A. and talked to her:
Mary: I'm handling the Duncan Smith case, have you read the report? He's only .01 over the limit, has a spotless record, is attending college and working a part-time job. If anyone deserves a lighter sentence it's this guy, what can we do? D.A.: I agree the kid is no real threat, but you know the politics of the D.A.'s office. My boss has a no tolerance policy on DUIs, there's really not much I can do. Mary: No one's saying he gets off with nothing, but surely any punishment needs to take into account that he's in college and working, does it really benefit anyone to have this kid drop out of college for being .01 over the limit? His record is completely clean, how about a lesser charge if you can't be flexible on a DUI. D.A.: Maybe we could knock the charge down to reckless driving. He'd mostly be doing community service, say 120 hours and only six months probation. That way he could avoid having a DUI on his record.
Mary then went back to Duncan with the offer.
Mary: It's a good offer, it keeps a DUI off your record and you'll largely be doing community service. Duncan: Still seems ridiculous to me, I had two beers! But I don't want to risk imprisonment and a DUI on my record. I'll take the offer.
When Duncan came before Judge Black, the D.A. and his public defender informed the judge of the deal and Duncan pleaded no contest (as opposed to pleading guilty). Mary had advised Duncan to plead no contest rather than guilty because a no contest plea could not be used in a subsequent trial if the city sued him over the fire hydrant he ran into.
That afternoon, the bailiff came and got Sandra again, but Mary still hadn't shown up. Sandra was brought before Judge Black again when Mary finally reappeared and asked the judge for a brief moment to discuss with her client.
Mary: Sorry Ms. Jones, I was in another hearing and couldn't get out. I spoke to the D.A. and the best we can do is get you out tomorrow, with a 12 month alcohol rehab program and 3 years of probation if you agree to plead guilty right now. Instead of fines though, the D.A. agreed that you can serve community service instead. Sandra: (Sigh) I guess that's better than a year in jail plus all of that. Mary: Great, then just say yes to all of the questions the judge asks and we'll get you out of here tomorrow.
Mary turns to the judge and says that they are ready.
Judge: Ok, we're back on the record, the matter is Sandra Jones, a continuation from the hearing this morning. Ms. Jones, have you discussed what you want to do with your lawyer? Sandra: Yes, your honor. Judge: And how do you plead to the charge of a second DUI? Sandra: Guilty, your honor. Judge: Counsel, have you reached a settlement on your client's behalf? Mary: Yes, your honor: one more day of jail time, 12 months of alcohol rehab, 3 years probation, and a $1000 fine that will be converted into community service hours provided that my client pleads guilty. Judge: Ms. Jones, do you understand that by pleading guilty, you waive your right to a jury trial? Sandra: Yes, your Honor. Judge: Ms. Jones, do you understand that by pleading guilty, you waive your right to cross examine your accusers? Sandra: Yes, your Honor. Judge: Ms. Jones, do you understand that by pleading guilty, you waive your right against self-incrimination under the Fifth Amendment to the U.S. Constitution? Sandra: Yes, your Honor. Judge: Did anyone force or coerce you into accepting this settlement? Sandra: No, your Honor. Judge: Then you are pleading guilty because you were in fact driving while under the influence of alcohol? Sandra: Yes, your Honor.
Judge Black then sentenced Sandra to the terms of her guilty plea and instructed her to enroll in a court approved alcohol plan no later than 2 weeks from the current date. Judge Black then asked her once again whether she understood the terms, and again Sandra replied that she did. The bailiff then took Sandra back to the courthouse lockup to spend one more day in jail.
Of course, not all DUI cases will fall clearly into these categories. But if you or a loved one have been arrested for a DUI, a skilled legal professional will be able to challenge the evidence and, in some cases, have the charges reduced. To learn more about your rights and your legal options, you may want to contact a local DUI attorney.
