Will I be offered a plea deal? What will it be?
At some point before trial, you may decide to negotiate for a plea agreement. Most prosecutors are willing to discuss a plea agreement, but not necessarily one that is good enough to accept.
The following are examples of terms your attorney can try to negotiate:
Dismissal of some charges
In cases involving multiple charges, prosecutors often agree to dismiss some of them in exchange for a guilty plea to the DUI. This limits the damage to the driver’s criminal record, minimizes court costs and fines, and may help to reduce or avoid jail time altogether.
Reduction of the DUI charge or elimination of enhancements
Sometimes prosecutors agree to eliminate an enhancement from a DUI charge or reduce it to different offense such as reckless driving. This is more likely when the prosecutor realizes that the defendant has a defense and wants to guarantee a conviction. Eliminating enhancements makes a big difference in sentencing.
Jail time
Avoiding it or minimizing it is obviously something everyone facing a DUI wants.
Restricted driver’s license
Judges do not always grant restricted driver’s licenses. When granting them, they may require more than the minimum waiting-period or ignition interlock under the statute. An agreement with the prosecutor can ensure a restricted driver’s license as soon as possible and without additional ignition interlock.
Other possible terms
When jail is unavoidable, some prosecutors will agree to serving the sentence so that it interferes with employment, school, child care, or other responsibilities as little as possible:
- Serving jail time on weekends. You report to jail on Fridays and the jail releases you early on Monday mornings until you complete the sentence.
- Work release. The jail releases you for work during the day and return to the jail at night.
- Delayed reporting to jail. Instead of being taken into custody after the hearing, you report to jail at a designated time and date.
- Furloughs. The jail releases you while you are serving your sentence for a specific time-period and purpose. Some examples are medical treatment for yourself or family members, or important life events.
These are some types of terms that might be possible in a plea agreement. Prosecutors make plea offers based on what they know about a case. Because every case is different, there is no way to predict what offer the prosecutor will make, or to evaluate how good a plea offer is without investigating the case first.
In DUI cases, the most important factor to plea negotiations is the prosecutor’s confidence that she can get a conviction. Prosecutors rarely even think about reducing a DUI charge to reckless driving unless they question the strength of their case. In some jurisdictions, the prosecutor may not even have the authority to make a plea offer for reckless driving without approval from a supervisor (who does not have to go to trial and look bad losing).
After the strength of their case, most prosecutors consider:
- How impaired the driver was. Breath and blood test results, slurred/incoherent speech, ability to maintain performance on the field sobriety tests.
- The degree of danger to the public. Erratic or aggressive driving, the amount of traffic on the road, and location/timing of the offense
- Interactions with the police and magistrate. Being respectful and cooperative is expected and does not help much to mitigate a case, but behaving badly can certainly hurt. Exercising one’s rights (remaining silent, refusing consent to search a vehicle etc.) is not bad behavior.
- Criminal history and driving record.
- Personal background. Prosecutors usually know nothing about the defendant except their criminal and DMV records. If there is helpful information, the defendant’s attorney must discuss it with the prosecutor.
- Any defenses the prosecutor knows of. Generally, the more trouble the prosecutor expects getting a conviction, the better the plea offer will be. If the prosecutor is unaware of a defense, revealing some information might create leverage for negotiation. However, the prosecutor would know your trial strategy. Whether to reveal information depends on how much it would help you, and how much it would hurt at trial if the negotiation fails.