A DUI Lawyer Can Help Reduce Your Charge or Sentence

If you’ve been charged with a DUI, in some cases an attorney can help you either get a lesser charge or get a reduced sentence for your current charge.  

Reducing the Charge

Generally the more uncertain your case is, the more room there is to negotiate the charge. For instance, if the test shows a BAC to be .09 or .10, the field sobriety tests are inconclusive, and no untoward behavior jumps out, the prosecution may be willing to change the charge from DUI to a lesser offense, such as reckless driving—a much less serious offense that in many states may still a misdemeanor, but which will result in a far less-harsh sentence. Reckless driving is often a fallback position for prosecutors who don’t feel they can win a DUI case or who don’t think the facts justify a trial. This is what’s known as a “legal fiction” in that there need not be any bad driving whatsoever. The recklessness is implied from having sufficient alcohol in your system to risk damage or injury.

Wet Reckless

In a handful of states, there are two varieties of reckless driving that are used in the plea bargaining context: a regular reckless driving charge and something known as a “wet reckless.” A wet reckless is when a charge of DUI is reduced to reckless driving and the record shows that alcohol was involved in some way. A wet reckless typically will not require jail time although probation is a possibility. Nor will the court likely require a license suspension (although the state’s DMV might suspend the license regardless of the reduction of charge). The fine may be less and a less intensive DUI school may be required. However, if you are charged with DUI in the future (within a period of time usually spanning seven to ten years), the wet reckless typically will count as a prior. Finally, insurance companies view this charge as equal to a DUI in terms of rate increases. The legislative purpose in passing this type of law is to encourage plea bargains in close cases—giving defendants a reason to plead guilty and yet giving to government a way to get convictions.

Example:  Wet Reckless in California

Here’s how a wet reckless differs from a DUI in California:

  • The DUI class is less intensive—six weeks instead of 12 because only the educational component of the DUI program needs to be completed.
  • The fine is about $800 less.
  • The conviction will not result in a suspension. (However, if your BAC is greater than .08 your license will be suspended anyway.)
  • The conviction will not result in a suspen­sion of your commercial license.

According to one California DUI attorney, when potential clients with a .09 DUI comes to see him, he often tells them that hiring him isn’t a good use of their money because they will spend more hiring him than they will save by pleading to a wet reckless.

You can learn whether your state has a wet reckless charge by visiting www.nolo.com/legal-encyclopedia/dui-dwi/.

Reducing the Sentence

In addition to plea bargaining (where the charge is reduced to a lesser one, like from DUI to reckless driving), most parts of the country also have sentence bargaining. Sentence bargaining is extremely useful where a guilty plea might result in a long period of incarceration. For example, you may be willing to plead guilty to a second DUI but only if you know what your sentence will be. The same is true with an aggravated DUI cases where your BAC is over .15, or injury or death has resulted. In these types of cases you probably wouldn’t want to plead guilty unless you knew what sentence you’re going to get, and you would be well advised to have an attorney (as is generally true with all non-routine DUI cases).

Fortunately, in most first non-injury first offense DUIs, judges hand down a routine sentence that seldom varies from one case to another. This is because there are so many of these cases that the judge doesn’t have time to do individual case analyses. The main variable that does exist is whether driving under the influence of drugs is the charge. In that case, the judge may require drug rehabilitation treatment and random testing as a condition of probation. If you are in a state or court where the judges hand down variable DUI sentences in your type of case, again, you would do well to use an attorney. But assuming there are no facts indicating the likelihood of a customized sentence, if you plan to plead guilty to DUI or a lesser charge, it may not be cost-effective—or even very helpful—to hire an attorney to represent you at you sentencing because your sentence will be the same whether or not you have an attorney.

Do You Really Need an Attorney?

Many DUI defendants successfully do their own bargaining in situations where bargains are freely given (for instance, marginal test scores like .09, or where there was no evidence of possible harm to the community). But if you are further out on the margins of when the prosecutor feels obliged to obtain a DUI conviction, bringing in a lawyer to do it for you can pay off big time. If you are trying for a reduction in the charge to a wet reckless (or just reckless driving in states that don’t have the wet reckless provision), the chances are great that an attorney with a preexisting relationship with the prosecutor will have much better luck than you will have on your own. After all, plea bargaining is an art form that involves a combination of legal knowledge, experience, and poker skills. The prosecutor may not mind going to trial against you alone, but would rather not waste his or her time having to deal with a contentious defense attorney. Representation alone may determine the outcome, especially in tough cases. 

Excerpted and adapted from Beat Your Ticket: Go to Court & Win, by David W. Brown (Nolo).
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