PLEA BARGAINING EXPLAINED by Jon Scott Fox   October 2009

A competent DUI defense attorney will always explore the possibility of plea bargaining on behalf of his client. If an offer of reduction of the charge is "placed on the table," then the client will have the option of considering the benefits of accepting the offer, weighed against the risks of going forward to trial on the underlying DUI charge. This calculation should be made only after a thorough and complete investigation of the case has occurred, the legal research is complete, and the objectives of the client have been clearly identified.

Our legislature has recognized that plea bargaining is a legitimate part of the legal process. RCW 46.61.5055 (14) sets forth a list of convictions which, if they resulted from a charge of originally filed as a DUI, would count as "prior offenses" in the event of a subsequent DUI arrest/conviction within seven years of the current incident. This legislation is, in fact, an acknowledgment that reductions from DUI charges occur and there is nothing improper about this process. It is true, however, that today's prosecutors are generally reluctant to offer any sort of a reduction of the DUI charge unless a defense lawyer presents them with real factual or legal issues that reveal actual weaknesses in the prosecution's case.

What kinds of plea bargains are possible? There are a number of ways in which a DUI charge may be reduced. The most common way is for the charge to be amended to a lesser criminal offense at some point in the proceedings. This may occur at an early legal stage, such as at a pretrial conference, or a may even occur on the eve of trial or during trial itself. Another procedural mechanism by which DUI charges are reduced is called the "stipulated order of continuance" or a "pretrial diversion agreement." By this process, all proceedings in the case are continued to a date in the future (usually one or two years) contingent upon the accused complying with certain conditions. Upon proof of compliance, the DUI charge is reduced as previously agreed. Upon a showing that there was a failure of compliance, the end result is a DUI conviction since under this type of a plea bargain, the accused gives up the right to fight the DUI charge at trial in exchange for the opportunity to gain the benefits of the reduction if he complies with the terms.

Bear in mind that when a DUI charge is reduced, the new charge sometimes does not accurately reflect what actually occurred on the night of the arrest. However, if the accused agrees to such a plea bargain, the reason is that the consequences resulting from the reduced charge are more favorable to the accused than the prospect of going to trial on the DUI charge and possibly being convicted. In practice, a DUI charge may be reduced to any of the following charges, although this is not an exclusive list:

1. Reckless Driving RCW 46.61.500
2. Negligent Driving, First Degree RCW 46.61.5249
3. Reckless Endangerment RCW 9A.36.050

The benefit to the accused of accepting a reduction to any of these charges is that the reduction avoids the mandatory minimum sentence required by law for a DUI conviction. By comparison, for the reduced charge, the sentence is completely in the discretion of the judge. Therefore, a reduction from a DUI charge to one of the other listed charges may result in jail time being replaced by something else, such as electronic home detention, work crew or perhaps community service. In addition, every DUI conviction will carry with it the requirement imposed by the Department of Licensing of an ignition interlock restriction. The imposition of an ignition interlock is discretionary with the judge upon a reduction of the DUI to any of the three charges listed above. In addition, a reduced charge may avoid some or all license suspension and high risk insurance, depending upon the statute.

The prosecution also benefits when there is a plea bargain. This is because each of the three listed charges is a criminal offense and each carries with it the possibility of jail time if any of the conditions of probation are not met. These conditions usually include strict compliance with the lawful behavior, and alcohol evaluation and appropriate follow-up, no driving after having consumed alcohol, and other conditions set in the discretion of the judge. A further benefit to the prosecution is that a DUI charge reduced in this fashion will count as a "prior offense" if the accused is convicted of a subsequent DUI charge within seven years of the arrest of the current case.

It is extremely important for a DUI defense lawyer to be well versed in all of the ramifications to the accused of a conviction for any charge that has been reduced from a DUI charge. The most important consideration is whether the reduced charge appropriately serves to client's objectives and needs in light of the risks involved with going to trial on the DUI charge itself. There are situations where the best advice is for the accused to reject any offer of reduction and to go straight to trial on the underlying DUI charge. There are other situations where, if convicted of DUI, the ensuing consequences would be so devastating to the client's career or other objectives that a reduction is well advised, if obtained. In still other situations, the immigration consequences to a particular plea bargain will be the paramount consideration.

It bears repeating that in today's courtrooms, a plea bargain, if offered, is usually the result of a thoughtful presentation to the prosecutor of factual and legal issues impacting the prosecutor's ability to successfully prosecute the case, along with a presentation of positive factors about the accused (good record, good citizen, unusual circumstances, and the like.) If a reduction of the charge results, the appropriate course of action (accept or reject the offer) must be carefully considered. An experienced DUI defense attorney is a valuable asset to a client who is faced with making such decisions.