» Arizona Statutes, DUI, Prosecutors » Worst. Plea. Ever.

Worst. Plea. Ever.

Until last September, if you were convicted of extreme DUI in Arizona, you would have to do thirty days in jail, all but ten of which could be suspended. Now, you must do the full thirty days. On top of that, if you’ve had another DUI within the past seven years, you are looking at a whopping 120 days of jail. None of it can be suspended.

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.

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