» Arizona Cases, Arizona Statutes, Courts, DUI » Judges Aren't Always Right

Judges Aren't Always Right

A week or two ago, I saw a judge make a ruling completely contrary to the law. It happens, but usually not so obviously.

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?

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