I don’t want to hurt Oprah’s feelings, but I think she needs to know she’s wasting her time. People are never going to quit using their phone while they drive, just like some people are never going to quit driving drunk, driving tired, or driving while eating burritos. For decades, we’ve thrown away our civil liberties in the name of safety. We’ve drafted laws providing for vehicle impounds and license suspensions long before drunk drivers even make to to their first court hearing. We’ve put up roadblocks, required ignition interlock devices for all offenders, and added so many mandatory minimum fines, jail terms, and other penalties that you may be better off killing someone with your car sober than being stopped driving with your taillight out while impaired to the slightest degree. None of that seems to be stopping anybody; the DUI clients come in at the same rate now as they did when I first started handling these cases, and I have a tough time believing statistics touting the positive effect of our tyranny when it comes to drunk driving. If the real numbers were that great, MADD wouldn’t have to keep making them up.

Oprah shouldn’t be too sad because I’m going to propose something that might help. Here it is: start teaching people how to drive better while they’re distracted. That’s right. Think back to that girl in the golf cart I saw on TV. Put every driver in a golf cart and make them learn how to text and drive safely. Maybe start simple, like talking on speaker phone while driving, then eventually let people progress to things like texting, folding laundry, doing sudoku puzzles, or whatever else people like to do while they drive. We should know by now that we can’t eradicate DWD, so why not teach people the skills they need to multi-task better? There have to be techniques to enable you to text and drive more safely. Maybe there’s a certain way to hold your phone. Maybe you have to track a certain way with your eyes as you shift your attention between the road and your phone. Personally, I have no clue how best to drive distracted. Someone must know. Why not figure it out and teach people?

I won’t be surprised if I get a lot of angry people telling me how dangerous DWD is. Every one of those people will be hopelessly confusing the issues. DWD probably is dangerous, and people probably shouldn’t do it. That isn’t what matters. What matters is that people do it now and will continue to do it and endanger themselves and others no matter how many laws we pass. Why not make them a little safer when they do what they’re going to do anyway? People also argue that handing out condoms encourages sex, but a lot of people are going to have sex anyway, and wearing a condom prevents the spread of disease. Am I so unreasonable suggesting we take human nature into account in the context of DWD and craft solutions that cater to our natural predispositions rather than try to change who we are and what we like to do?

I’m largely joking here, as I enjoy thinking about people taking an advanced DWD class, maybe doing laps around the Nürburgring texting in a Ferrari while an instructor tells you how to improve your DWD lap time. But my suggestion isn’t just funny. It may have the potential to save millions of lives. I’d be pretty psyched if the government decided not to pass more oppressive driving laws and instead gave those around me the skills and training needed to safely do what they’re going to do anyway.

The judge was hearing a number of pleas at once. Two of the defendants were in custody and pleading to aggravated DUI. Pursuant to A.R.S. § 28-1383(D) and (E), certain types of felony DUI require that a defendant spend a certain amount of time in prison before being placed on probation.

In Arizona, prison and jail are different. Jails are run by counties and cities, and felony defendants spend their time in county jail pending resolution of their criminal matters. Prisons are run by the state. You can only go to prison if you are sentenced.

Both of those pleading defendants were in custody and had pleas stipulating to probation with the mandatory prison required by the statute. Both had pleas giving them credit against the mandatory prison term for the time they spent in jail prior to sentencing.

The judge indicated he could not give them credit for jail served because the statute specifically said the time had to be “in prison.” On its face, that seems to be what the statute requires. It isn’t, and the judge was wrong.

A.R.S.§ 13-709(B) provides that “[a]ll time actually spent in custody pursuant to an offense until the prisoner is sentenced to imprisonment for such offense shall be credited against the term of imprisonment.” There are cases from each division of the Court of Appeals of Arizona holding that DWI statutes do not preclude credit for presentence incarceration time. Some are still good law and over a decade old (for the Arizona lawyers reading this, check out State v. Nihiser, 191 Ariz. 199 from Division Two in 1997 and State v. Mathieu, 165 Ariz. 20 from Division One in 1990).

The judge told the lawyers he would not give their clients the presentence incarceration credit required by the pleas, and neither attorney was able to convince him he was permitted to do otherwise. Each matter was continued for a week or two so the attorneys could work out an agreement that fit the judge’s concept of what the law required.

Hopefully, the attorneys have already brought to the judge’s attention the statute and cases I mentioned above. I sent one of them the cites after the hearing, and I hope both clients enter those pleas again as soon as possible. I hope the judge has realized he was wrong. There’s no way he could have been right.

Here’s what I really wonder: when the judge realizes his mistake, if he hasn’t already, will he feel bad? What if one of those defendants ends up serving an extra week or two because of the continuance he forced based on incorrect legal principles? Will he only be embarrassed about being wrong, or will he feel guilt about mistakenly depriving two people of their freedom?

When Arizona’s Court of Appeals, Division Two came out with a related opinion in State v. Zaragoza, I put up another post about actual control. I was pretty negative about whether the opinion would make a difference. It turns out I was right to be negative, but for the wrong reasons. This summer, the Supreme Court of Arizona vacated the opinion of the Court of Appeals.

In Zaragoza, the defendant staggered to his car and got in. An officer pulled up behind him, shined his flashlight inside, and saw him in the driver’s seat with one hand on the steering wheel and the other putting the key into the ignition. Although he testified he just wanted to sleep in the car and planned to start the ignition to roll down the window and turn on the radio, the jury convicted him of felony DUI. The jury was instructed that “[t]he defendant is in actual physical control of the vehicle if, based on the totality of the circumstances shown by the evidence, his potential use of the vehicle presented a real danger to himself or others at the time alleged.” They were also given several factors to consider when deciding whether or not he controlled the vehicle.

The Court of Appeals reversed the trial court because they thought the phrase “potential use” misled the jury. The court was worried the jury found the defendant guilty based on hypothetical control. I think that’s reasonable, and in that respect, Zaragoza was one of the better opinions I’ve read. I was sad to see it overruled, but I wasn’t surprised.

The Supreme Court thought the Court of Appeals had it all wrong. They claimed “a conviction could not be premised on speculative potential use” and said “[t]he instruction does not raise the specter that any impaired person with access to a vehicle could be convicted for being in actual physical control of a vehicle.” Apparently, the words “presented a real danger to himself or others” made everything okay.

Obviously, I disagree. Saying “presented a real danger to himself or others at the time alleged” does nothing to avoid convictions based on speculative potential use. I interpret those words as only ensuring your speculative potential use is actually dangerous. Because a vehicle is involved, they are pointless. Of course your hypothetical use is dangerous. I imagine quite a few jurors will interpret it like I do. The nuances of those magic words the Supreme Court trusts so much will probably be lost on quite a few jurors too.

After making the conclusory statement that the instruction simply cannot be interpreted the way the Court of Appeals and I interpret it (an amazing claim, seeing as how we did in fact interpret it that way), they go on to claim it won’t result in any impaired person with access to a vehicle being convicted of DUI. That’s equally silly. Isn’t that the point of all this?

First, we were only worried about actual “driving” under the influence. Then, we got tough on those rascally drunk drivers who don’t drive by punishing drunk people with actual control of a vehicle. At that time, we thought we should allow drivers who realized they were impaired to pull completely off the highway, turn the off the car, and sleep without fear of being arrested for DUI. Unsurprisingly, we got tough again. We decided to just have the jury look at the totality of the circumstances to determine if there was actual physical control.

What’s a jury going to do when they hear about drinking and a motor vehicle? Seriously. This is going to be their reasoning: “drinking scary, car scary, drinking plus car very scary.” In Zaragoza, the Supreme Court even cites an earlier case acknowledging that the “totality approach” allows the state to prosecute drunk drivers “under a much greater variety of situations – for example, even when the vehicle is off the road with the engine not running.” Great. No matter how hard the courts try to convince themselves it isn’t true, the goal of all this is to ensure that every impaired person with access to a vehicle gets convicted of DUI.

The Supreme Court doesn’t even want a person’s purpose in controlling the vehicle to matter. The Court of Appeals thought the legislature intended to criminalize control of a vehicle when the circumstances “as actually physically exercised – demonstrate an ultimate purpose of placing the vehicle in motion or directing an influence over a vehicle in motion,” but the Supreme Court didn’t like that because it thought the facts determine whether a defendant exercises physical control of a vehicle. The opinion literally says an instruction telling a jury to consider the defendant’s purpose incorrectly states the law. I guess they’re fine with convicting people of DUI when they had no intention of driving.

Here’s the bottom line: there is nothing you can do to avoid getting a DUI. The goal is prohibition, not safety. Not driving won’t help you. Not drinking and not doing drugs may not even help you. While a DUI used to require the driver be impaired to the slightest degree, that doesn’t even matter anymore. You can get a DUI simply because of the content of your blood, regardless of whether or not you’re impaired. I’ve posted before about that too. Doesn’t anyone think it’s pretty ridiculous that someone can get convicted of driving under the influence for neither driving nor being under the influence?

The only good thing about Zaragoza is that the Supreme Court provides a new jury instruction that’s a little better than what we had before. Here it is: “[i]n determining whether the defendant was in actual physical control of the vehicle, you should consider the totality of the circumstances shown by the evidence and whether the defendant’s current or imminent control of the vehicle presented a real danger to [himself] [herself] or others at the time alleged.” Hopefully, now it’ll be a lot harder to get a DUI in a car that doesn’t work.

It’s sad when something so little in the midst of so much unfairness is the only glimmer of hope I get from our Supreme Court.

Congratulations, you just escaped a very dangerous situation. You’re safe, but just for a little while. A few blocks from your home, a friendly law enforcement officer notices your excessive speed and pulls you over. When he walks up to the driver’s side window, he sees you’re a wreck. You’re sweaty, shaking, and can’t think straight. You don’t make any sense, constantly rambling about intruders. He notes your bloodshot, watery eyes, your slurred speech, and smells a moderate odor of alcohol. Don’t they always? He doesn’t care about your crazy burglary story because he’s heard every imaginable drunk driving sob story a million times. He wants to know how many you’ve had. He wants you to do some tests. Because you’re so flustered, you forget to ask for your lawyer. You do what he asks. He eventually takes you to the station, and you submit to a blood test.

I’ve got some bad news for you. You’re going to get a DUI. The courts won’t care that you can prove your windows were broken and your home was burglarized. It doesn’t matter that you have 911 in your call history, left your garage door wide open, and that there’s an ongoing police investigation about the burglary of your home. It won’t matter if they catch the guys who did it and you’re the named victim in the case against them.

Here’s the problem: there is no necessity defense to DUI in Arizona. In fact, to my knowledge, there is no type of DUI justification defense whatsoever in Arizona. That’s explained very clearly in State v. Fell, 203 Ariz. 186, 52 P.3d 218 (App. 2002), a Court of Appeals of Arizona, Division Two case that tells us why justification defenses do not apply to DUI.

State v. Fell doesn’t have the facts I just described, but the facts of the case do make me feel bad for the defendant. She was assaulted by her husband, who left the house. Fearing for her safety if her husband returned, she left. She was eventually stopped, arrested, and charged with DUI. She wanted to use as a defense “the fact that she had necessarily driven away from her home because of concern for her safety,” and the trial court let her. However, the state got a stay before trial and filed a special action, which it ultimately won.

The reason she didn’t get to employ a necessity defense, the same reason you won’t be able to use a justification defense, is because the DUI laws are found in Title 28 of the Arizona Revised Statutes, while the justification defenses are found in Title 13 of the Arizona Revised Statutes. A.R.S. 13-417 says that “[c]onduct that would otherwise constitute an offense is justified if a reasonable person was compelled to engage in the proscribed conduct and the person had no reasonable alternative to avoid imminent public or private injury greater than the injury that might reasonably result from the person’s own conduct.” It’s found in Chapter 4, “Justification,” which is found in Title 13. Title 13 is the criminal code. Also in Chapter 4 of Title 13 is A.R.S. 13-401, entitled “Unavailability of justification defense; justification as defense.” That statue provides that “justification, as defined in this chapter, is a defense in any prosecution for an offense pursuant to this title.” Unfortunately, Arizona’s DUI laws are all found in Title 28 along with other laws involving transportation.

State v. Fell isn’t a long opinion, but it’s long enough to pretty thoroughly piss me off. Even the way it states the facts of the case is irritating. The court admits the facts of the case were undisputed, yet it says the defendant’s husband “allegedly assaulted her.” I suspect that, if you appealed based on the facts I gave you above, the court would say your home was “allegedly burglarized.”

The defendant argued that the court should look at A.R.S. § 13-102, which provides that Title 13 “shall govern the construction of and punishment for any offense defined outside this title.” Sounds good, right? Justification defenses should apply to Title 28 offenses, right?

No such luck. The court decides the issue at hand doesn’t involve “the construction of” or the “punishment for” a DUI offense. I guess I can understand why they think that deciding whether to apply a defense might not be considered construction or punishment, but it irritates me. Arizona courts use A.R.S. § 13-102 to apply Title 13 sentence enhancement provisions to Title 28 felonies, but they won’t use it to apply Title 13 defenses to Title 28 felonies. I understand a sentence enhancement is pretty clearly “punishment for” a non-Title 13 offense, but I feel like it’s another example of courts interpreting statutes one way when they help the state and another way when they help defendants.

The court decides that the words “this title” reflect a clear legislative intent to limit application of the justification defenses to Title 13 and says that “no further inquiry is required.” The court ignores the rule of statutory construction called the rule of lenity because the statute is clear. Then, it applies the rule of statutory construction called inexpressio unius est exclusio alterius to decide that, because A.R.S. § 13-401 doesn’t list non-Title 13 offenses like DUI, the legislature did not intend justification defenses to apply to them. The court wasn’t impressed with the out-of-state authority the defendant cited, and it explained that Arizona has no common law defense of necessity. The court concludes that a DUI defendant can’t argue necessity.

The biggest frustration in all this is that I can’t say the case was wrongfully decided based on the text of the statutes. The statutes are terrible. Because of them, in the scenario I described above, you would be convicted. You could appeal, but the appellate court would just tell you the law is clear. It would use the rules of statutory construction that hurt you while dismissing the ones that help you. If you are convicted, the court may give you a Title 13 enhanced sentence, though it refused to give you a Title 13 necessity defense.

Knowing that, if you ever find yourself in the situation I described above, which I hope you never do, you will realize that you have two choices. You can risk death, or you can risk DUI. You aren’t going to find so much as a scrap of sympathy from any court.

I hope that all of you are as offended by this as I am. I wish I could say that State v. Fell is Arizona’s worst DUI opinion, but it probably isn’t close. It’s just one little sample of Arizona DUI stupidity.

I think those are fair questions. In Arizona, an aggravated DUI is forever an historical prior felony conviction. Once you’ve been convicted of aggravated DUI, you will always be looking at an enhanced, mandatory prison sentence if you are later charged with pretty much any felony. That aggravated DUI conviction will follow you around for the rest of your life, resulting in worse plea offers and giving you powerful incentive to take them because of the risk of guaranteed prison. It’s something that comes as a surprise to most defendants.

I think it’s ridiculous to make any DUI a felony in the first place, but it’s even worse to give it particularly severe consequences. Other convictions that serve as eternal priors are things like dangerous crimes against children or offenses involving a deadly weapon or dangerous instrument. Adding DUI to that list is an example of anti-drunk-driving hysteria at its worst, and I can see why clients have problems understanding it. Clients often say things like “I made a mistake, it was years ago, I did my time, and these new charges have nothing to do with DUI…I can’t believe I’m looking at this much time.” Those aren’t bad points.

The lawyer I overheard, on the other hand, didn’t seem to see any problem with the situation at all. He was saying all the things a prosecutor would say. He went into great detail about why repeat offenders should get harsher punishments, trying to make points about the need to deter future misconduct and how those who violate the law on more than one occasion have a more culpable mental state and thus deserve greater penalties. Needless to say, the client didn’t care about how the law could be justified under deterrence-based or retributive theories of punishment. It sounded like a law school lecture, and all the attorney accomplished was to royally piss off his client.

If they ask, I tell clients why I believe certain laws are the way they are. However, I can’t recall ever trying to justify a law to a client. That’s not my job, and a lot of the time, I’d end up trying to justify the unjustifiable. I don’t have to convince my client that he’s being rightfully prosecuted. Many Arizona laws are terrible. Quite a few of my clients are being prosecuted for things that shouldn’t be illegal. Justifying a law to a client isn’t going to help the client, and it certainly isn’t going to do anything to improve the attorney-client relationship. I defend people, not crappy laws. I really don’t know what that lawyer was thinking.

In Arizona, it’s practically impossible to get by without driving. Public transportation is generally inadequate in urban areas, and in rural areas, it’s basically non-existent. Cabs are very expensive. Most people I know who take advantage of buses or the light rail still have to drive a few miles to get to a park and ride. My clients who can’t drive are severely limited in where they can live and work.

Not having a car leads to many of my clients getting into more trouble. Those who drive anyway often find themselves with new misdemeanor charges when they’re caught. If they’ve been drinking, what would be a misdemeanor DUI becomes a felony DUI. The jail time turns to prison time, and they have to do 120 times as much of it. Plenty of stops and searches incident to arrest that resulted in new charges would have never happened if the driver’s license hadn’t been suspended.

I’ve had clients who picked up serious drug charges after getting rides with friends who ended up having drugs in the car. I’ve also had clients who said they committed crimes because the person who gave them rides called in a favor. The most common excuse I hear for people failing to check in while on probation or missing court dates is that they couldn’t get a ride. Judges, prosecutors, and probation officers usually show no sympathy.

No one is less sympathetic than Arizona’s Supreme Court. You see, Arizona courts do not recognize driving as a right. To them, it’s a “privilege.” They claim to recognize that not driving hurts those who must drive for a living, but they seem to think that matters only for particular occupations or fields. They don’t think the potential loss of the driving privilege is a grave or serious consequence. That’s why a license suspension isn’t enough to support a right to trial by jury.

Unless the justices make a lot more than I think they do, I doubt they’re getting chauffeured everywhere in limousines. I’d love for them to go without driving for three months and say loss of license isn’t a grave or serious consequence. They’d have to tell their friends and family they aren’t allowed to drive. They’d have to walk back from the grocery store laden with bags or bother everyone they know for rides. People would have to accommodate their lack of transportation. Maybe then, things might change

Insensitivity isn’t the only problem with how Arizona courts view driving. I find the very use of the word “privilege” repulsive. It sounds as if we’re small, helpless children who should be grateful for every little scrap of autonomy the state decides to grant us.

As an American, I’m proud to have rights, not privileges. The word privilege isn’t anywhere in the Bill of Rights, and the founders declared that I am endowed with unalienable rights, not granted alienable privileges. In much of this country (and most if not all of Arizona), driving is often necessary in order to make a living, raise a family, and have a decent quality of life. I shouldn’t have to rely on big brother to give me permission to do something necessary to live my life in a normal, reasonable manner. I’m ashamed Arizona uses the word privilege in its constitution and statutes. It sends the wrong message, telling us someone has to give us our freedom.

To the government, it doesn’t matter how essential something may be to life, liberty, and the pursuit of happiness. If the government wants to regulate it, that’s what the government is going to do. In most cases, all it takes is a name change.

Relabeling and over-regulating something as important as driving frightens me. Reproduction, marriage, and plenty of other essential rights aren’t enumerated. Although it would probably love to do it, Arizona can’t relabel them privileges because courts have decided they’re important enough to be off-limits.

I’m not thankful for that because I shouldn’t be. Instead, I’m angry that I have to hope judges think something is important before I’m allowed to exercise my right to it. It’s a sad state of affairs, and I can’t think of any area where the judges more plainly and disturbingly ignore something essential to modern life than with driving.

Recently, I learned that when drinking and driving might be involved, the answer is “almost everyone.” I had a trial a couple months ago where there was evidence my client drank alcohol prior to driving, and his young daughters were in the car with him. My client was not charged with DUI because he had no signs of impairment and blew under the legal limit when given a breath test. Before trial, I filed a motion in limine to preclude any mention of the fact he’d been drinking. I argued his drinking was not relevant to the actual charge and that, even if it was, it’s prejudicial effect substantially outweighed its probative value. The judge denied my motion but let me ask prospective jurors all kinds of questions about their views on DUI.

What I heard from the prospective jurors in voir dire suprised even me. A lot of jurors thought we should have zero tolerance for any drinking prior to driving. Many of them said they simply couldn’t be fair to someone who had something to drink prior to driving. They seemed to wear their inability to be fair and impartial as a badge of honor. I felt like the panel bonded over their hatred of even the slightest bit of pre-driving alcohol consumption, and the jurors seemed to be pushing each other in some kind of competition to see who could be the most intolerant. I’ve never gotten so many jurors struck so quickly and so easily. I don’t think the judge was able to rehabilitate a single juror.

That experience left me wondering a few things. Is it normally tougher to get jurors struck for cause because people don’t have similarly powerful prejudices in other areas, or because they just don’t feel comfortable expressing their other prejudices? Is there any other area where people are so willing to admit they can’t be fair and impartial? Did the jurors really feel so strongly about drinking and driving, or were they just giving into social pressure? I’ll probably never know the answer to some of those questions, but at least it’s something interesting to consider.

Arizona’s DUI law says, “[i]t is unlawful for a person to drive or be in actual physical control of a vehicle in this state . . . [w]hile there is any drug defined in section 13-3401 or its metabolite in the person’s body.” Impairment doesn’t matter, as it’s a strict liability crime. If a test can detect a drug or its metabolite in your body, you’ll be charged regardless of the quantity. I’m not saying quantity is a good sign of impairment, but a statutory minimum would at least save some unimpaired drivers from being charged. Currently, in Arizona, even you test positive as a result of legally smoking medical marijuana a couple weeks earlier, that won’t help you one bit. There are also plenty of legal drugs, both prescription and over-the-counter, that might land you in jail if you’re caught driving after taking them.

But don’t worry, the list of drugs in section 13-3401 isn’t that big. Oh wait, nevermind. The list is huge, and who knows how many metabolites each of those drugs has. Aren’t laws supposed to give us some kind of notice about what is and isn’t illegal? It might not be a bad idea to keep a doctor, pharmacist, or maybe chemist on speed dial to make sure you aren’t breaking the law by driving.

To give you an example of how our DUI drug law might convict an innocent person, here’s a little story. A client works a full shift. His managers and co-workers are with him the whole time, and at no point does he use any kind of illegal substance. He gets in his car to drive home. As he leaves the parking lot, he makes a wide right turn, and an officer pulls him over for breaking a traffic law. After approaching, the officer says he smells marijuana and claims the client has a green tongue. The officer asks the client if he recently smoked marijuana, and the client says “yeah, a few weeks ago.” The police report, of course, will merely note “suspect admitted to smoking marijuana.” The client is arrested, and a subsequent blood test eventually comes back positive, though only slightly over the absolute minimum amount the state’s equipment is capable of detecting.

In most instances, that client will be convicted of DUI drugs. Furthermore, his strict-liability DUI drug conviction will result in a one-year driver’s license suspension, not the 90-day suspension a driver actually impaired by alcohol would have gotten. The client will also have to equip his vehicle with an interlock device that does nothing to detect whether he has one of the numerous forbidden drugs or metabolites in his body.

If Kentucky’s legislature has even the tiniest bit of common sense, it won’t go down the ridiculous path we have.

Every time I hear about someone getting charged with DUI on something other than a car, truck, or motorcycle, I marvel at the stupidity of anti-DUI zealots. How dangerous are these drunk bicyclists and lawn mowers? More importantly, how much more dangerous are they than a drunk person without transportation? Do authorities really think they’re protecting the public by prosecuting that lady in her wheel chair? It seems to me that what MADD really wants is a “being-under-the-influence” (BUI?) or “existing-while-intoxicated” (EWI?) statute that will impose the same outrageous penalties we have for DUI.

All of this reminds me of the legendary “Steve” of YouTube fame. I have no clue if Steve’s videos are real, but they appear authentic to me. I imagine many of this blog’s regular readers have already seen them, but for those of you who haven’t, they’re basically how-to guides on what not to do when stopped by a law enforcement officer. I don’t know if he’s ever been charged with lawn mower DUI, but that’s definitely why he gets stopped. Sure, the guy’s crazy, but does he really deserve a DUI? If police just left him alone, I bet everything would be fine. Do any of you think he looks dangerous? How much jail time does he deserve just for riding around?

I recently had a client who got a DUI just before the law changed and had a prior DUI slightly over seven years old. By “slightly” I mean a matter of days. Because of the date of the offense, hers was a typical extreme DUI. No special enhancements applied, and neither did the crazy new law. Based on the facts of the case, I expected the prosecutor’s initial plea offer to be ten days of jail (with twenty suspended) and mandatory minimum fines, a pretty typical extreme DUI plea for that office. I was wrong.

The prosecutor offered my client a plea that gave her more jail than she would have gotten going to trial and losing. On top of that, the plea included extra fines and other collateral penalties. The prosecutor’s reasoning? Well, my client “almost” had a prior DUI and “almost” fell under the new law. The prosecutor thought that meant my client deserved a harsher plea than the average extreme DUI defendant.

Some prosecutors might make that offer hoping I wouldn’t notice the date of offense. Some prosecutors might not know they are supposed to apply the law in effect at the time of the offense. This prosecutor, on the other hand, acknowledged that my client was looking at ten days in jail and still offered her a plea to more. My first reaction was to laugh.

How is that a plea? Does she understand how plea agreements work? Prosecutors usually don’t like it when I offer to draw them diagrams. They also don’t like it when I offer them my old law school textbooks to review. In this case, maybe a diagram would’ve helped. Maybe a refresher on consideration from first year contracts might have cleared things up. I didn’t ask, but maybe I should have. Even though the plea ultimately changed to something much more reasonable, I’m pretty sure the prosecutor still thinks that was a good offer. Thinking about that makes my head hurt.