» DUI, Prosecutors » Quit Enabling Them

Quit Enabling Them

I’m often disappointed with other defense lawyers, but I keep it to myself. Not this time. What I’ve been seeing over and over again in city and justice courts is just too embarrassing to tolerate.

I’ve written before about prosecutors offering pleas that no defendant in his or her right mind should ever accept. I’ve also written before about Arizona’s DUI drug statute. I haven’t written about how defense lawyers are enabling and even encouraging prosecutors to offer worthless pleas to defendants in drug DUI cases.

A plea should give a defendant some benefit. Otherwise, there’s little if any reason not to go to trial. Prosecutors seemed to know that before, as the standard offer for a first time drug DUI in many courts used to be a plea to an “A1” DUI stipulating to nothing more than the absolute mandatory minimums. “A1” refers to the statute subsection for driving while impaired to the slightest degree. By pleading to being impaired to the slightest degree rather than to having certain drugs or metabolites in your system, you would face a 90-day license suspension instead of a one-year license suspension. It makes for only a marginally decent plea at best, but at least it was something.

Now, I’m seeing the standard offer become a straight-up plea to the charge. If you want to do the plea under A1, the prosecutor will let you, but it will be amended to show drugs were involved. The court abstract will show that, which is the problem. The Arizona MVD relies on the abstract in determining the appropriate license suspension. It doesn’t matter if the plea is an A3 (the DUI drug subsection) or an A1 involving drugs. You will get your license suspended for a year if the abstract shows it’s a drug DUI.

I’ve sat in court a few times over the past months and watched defense attorneys plead client after client to that standard offer. In most cases, I think it’s borderline malpractice.

I have never heard of anyone taking a DUI drug case to trial, losing, and getting more than the mandatory minimums. It’s possible, and I’m sure it’s happened, but it certainly isn’t likely. Tell your clients it can happen, of course, but be realistic. Explain to them that there is a possibility of 6 months jail, 5 full years of probation, and $2,500.00 in fines plus a huge surcharge on top of other DUI-specific fines, assessments, and other costs. Tell them that, but say that remote possibility is the only reason not to fight the hell out of the case. If defense lawyers would suck it up, get off their asses, and take every “standard offer” case to trial, the offers would starting getting better across the board.

To my disbelief, defense attorneys actually argue with me on this. One argument goes something like this: “I can’t afford to try all of these cases; if I do that, I will have to charge more and get fewer clients.” Since when do our finances clients dictate how diligently we represent existing clients? For some lawyers, I guess it must. If you’re making that argument, don’t ever expect a referral from me. Charge what it takes for you to do the job right.

I’ve also heard this one: “by taking anything to trial where the plea doesn’t offer any benefit, you’re suggesting clients pay for an outcome, not professional services.” I don’t buy it. There are times that I’ve poured my heart and soul into a case and gotten no movement on a plea. The goal is always the best possible outcome for the client. The agreement is always for my absolute best efforts, and every client understands and acknowledges in writing that they’re paying for that, not a guarantee that some ideal result will occur. Any lawyer who can’t understand the difference is a bar complaint waiting to happen.

Prosecutors make these non-offers because defense attorneys let their clients take them. There’s absolutely no excuse for enabling prosecutors who don’t understand the concept of a plea bargain to go around screwing defendants. Defense attorneys need to quit it. Prosecutors couldn’t do this without our help.

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4 Responses to "Quit Enabling Them"

  1. […] right now. Some of their policies waste public money like it’s going out of style. I’ve complained before about prosecutors offering pleas with no benefit and defense attorneys enabling them by letting […]

  2. Matt Brown says:

    After a deviation (or a motion or two), the state has come back with a good offer every time. With valid reasons to plead, my clients have decided against trial. The closest I’ve come to getting a DUI drug case to trial is picking the date with the prosecutor and the court. Regular ol’ DUI, however, is a different story…

  3. Andrew Becke says:

    So, have you taken any of these cases to trial yet?

  4. jamison says:

    I don’t know how it is in Arizona, but DWI and DUI have identical penalties in DC, with OWI having a lesser penalty. So, yes, if the prosecution offers OWI when DWI and DUI have been charged, it might make sense, depending on the facts of the case, to advise the client to take the offer. What happens instead is that the prosecutor will offer to drop the DWI in exchange for a plea to DUI. A couple of days ago, I sat in the courtroom and watched about 20 defendants take this deal and had the same reaction you describe here.

    When you do take the case to trial, the prosecution is rarely ready to proceed and the cases tends to be continued and/or dismissed. If more defense attorneys challenged these cases, we could overwhelm the system and the prosecutors would have no choice but to improve their offers if only to keep the whole system from breaking down.

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