Yes, if the case has some defects from the prosecution’s standpoint, such as they did not have the chemist
who did the test, the blood alcohol level was tested more than two hours after the arrest, the officer did
not see the person driving, there was a missing witness or the client was home or someplace else when
they drank more. In this situation, even though their blood alcohol level was over the limit it would be
difficult to prove what the BAC was at the time of driving. In these cases, we are often able to resolve the
case so it ends up as reckless driving instead of DUI.
Charges Or Punishments Can Be Reduced In DUI Cases Under Certain Circumstances
There is actually no hard and fast rule, but it seems that between 60% and 75% of my clients end up with
their charges being reduced to reckless driving.
Potential clients ask me about this all the time, and I tell them what I think their issues are, i. e. that the
officer did not see them drive so they could not place them behind the wheel, their blood alcohol level
was taken over two hours after they were driving so the police did the test improperly and therefore they
did not have probable cause to arrest them. This is just my opinion which may or may not be shared by
Clients often ask me if I could guarantee them a reckless driving charge and I tell them that firstly under
the cannons of ethics of a lawyer I could not guarantee a result. However, I have had success with their
There is another favorable disposition we get for clients when they are charged with a second time DUI.
Under the law the penalties include installing a breath interlock device in their car. They must blow into it
prior to driving or the car will not start. If there is any alcohol in their system, the car will not start. And
they would need to spend at least 10 days in jail.
We plead to a second time DUI for enhancements, but it would be a first for penalties. This means they
would not have to do the 10 days in jail, only 2 days or 48 hours community service. Usually we can get
the community service waived. They would not need to install the breath interlock device, or do the ten
days, but it would be a second for enhancement.
This means that if the client was convicted of another DUI and it was the third time within seven years,
then the DUI conviction that was the first for penalties would be a second time DUI conviction for purposes
of enhancement, and the person would therefore be looking at a felony.
It is the luck of the draw, because I can sometimes go through two weeks in which every case I handle will
be a reckless driving. But sometimes two weeks will go by and I cannot get any of them reduced to a
reckless driving. It is impossible to predict because each case is different.
Plea Bargains In A DUI Case
The offer by the DA usually is not that great during the first trial setting, so we would typically continue it.
Sometimes the offer would not get better, but many times it does. The DA may give a more favorable offer
if something happened that weakens his case, i.e. witness moved away, a chemical technician moved away
or died, and in that case the offer gets better and our client pleads to a stay of adjudication. When the
case is finished, they would end up with a reckless driving conviction as opposed to a DUI.
We like this result but the case will certainly end up as a reckless driving charge, if the client did what he
was supposed to do. There is an expression ‘The key to the jailhouse is in your hand.” Usually if the client
does not complete all of the requirements in addition to a DUI conviction, they usually would spend some
time in jail. But the client himself determines whether he goes to jail or not. This is called a “Stay of
Adjudication”, and it works by the client pleading guilty to DUI, but the DUI would not be entered, so in a
way it would be floating out there in cyberspace. Anybody who tried to look for it would see that the person
had been charged with DUI, but they would not be able to see whether they had been convicted.
The client would typically need to fulfill the requirements for a first time DUI, meaning they would have to
go to DUI School and attend a victim impact panel (VIP), pay a fine and stay out of trouble (no further
The victim impact panel is essentially a seminar in which people talk about how they had been adversely
affected by a DUI. Victims would tell stories about how they got a back injury because they were rearended
by a drunk driver, so they ended up having to go to therapy for six months etc. It is mandatory to
attend the victim impact panel, and you must be physically present. Unlike the DUI School, you cannot do
the VIP online.
Nowadays computers have become very sophisticated, and a recent development has enabled DUI school
classes to be completed online. A fine would be imposed, and a first time DUI would cost somewhere
between $580 to $1,175. The stay out of trouble component would require the person to stay out of
trouble during the probation. No further arrests and no additional criminal violations. There couldn’t be
any arrests for DUI or anything else. It would be okay if the person was cited with a minor traffic ticket.
Usually the court will impose a suspended sentence for around 30 days, but there would be no jail time
as long as the person did everything, although they would usually need to spend 6 months in in custody
if they were arrested for another DUI.
Ignition Interlock Device
A breath interlock device would be installed in the car. The person who was driving must breathe into it
to make sure there was no alcohol in their system prior to drving. If there is, the car would not start. This
device is also expensive to install, it is actually a huge hassle.