Hello there and thanks in advance for your help. I will try to quickly provide details. I got stopped at a DUI checkpoint (in Anaheim) and blew a .89 and followed by a .097 and .098 bloodtest. I did reasonably well on my FST's (counted to 31 seconds instead of 30, etc). This is my first DUI and first experience dealing with the law/cops. I have completed my 3 month school and am currently driving with a restricted license until 9/8. Orange County took a few months to formally file against me and at the first meeting with my attorney, I was given the standard first DUI penalty with the standard probation. Where do you recommend I go from here? I was under the impression that considering my low BAC that a Wet & Reckless was more likely. Recommendations on how to negotiate?
Based on the information you provided, we have no bad driving, good FST's and a rising BAL defense. You should consult with a DUI lawyer (try a member of the National College for DUI Defense and there are many in your area). That lawyer will most likely tell you that this case should GO TO TRIAL. If they don't tell you it's a good case for trial, then talk to another one. Feel free to contact me for some names of the lawyers in your area who go to trial (and often win) on cases like yours. These are facts that we wish we had on every DUI case.
How do they prove beyond a reasonable doubt that you were impaired when driving? With a good expert witness (toxicologist) on your side, it will be tough to prove beyond a reasonable doubt that you were at or over .08 at time of driving (assuming your DUI lawyer can get the PAS result in front of the jury).
If you have an attorney, this question is better directed at him or her. If there has been a breakdown in your relationship with your current lawyer, then you may want to consult with others. Based on the facts provided, I would not accept the "standard first" conditions either.
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If you feel that you cannot work with your lawyer, you really do need to hire one that you are more comfortable with. You should be working with an attorney who is well-versed in DUI law, and who can advise you what defenses may or may not be available to you and what motions may be available. I would reccommend doing this before deciding whether or not to accept a "wet & reckless." Let me explain: A wet and reckless may carry significantly lower penalties (half the fine, no jail time, a lighter DMV course) but is considered a DUI for purposes of priorability. This means if you get stopped for DUI again within the next 10 years, and are convicted of that charge, it will be treated as a second DUI. If you are in an accident where another person dies as a result, and you are found to be under the influence of alcohol, you can be charged with murder. A wet still carries repurcussions for your auto insurance and may affect employment, especially if you drive a company vehicle.
Therefore, carefully consider whether a plea is appropriate in your particular situation first. The only way to do this with all of the information you need is to discuss it with an attorney who is well versed in the area.
Although we do not know the facts of your case, if it is close to your recitation, you should never consider pleading to DUI [or if you were mt client even to wet]; checkpoint stops are frequently winnable in motions, and that low a BA is almost always winnable at trial. The fact that you have an attorney does not mean you need to keep him, if you do not trust his judgment. https://www.facebook.com/LawOfficeOfKennedy
If you cannot work with your attorney, you should hire one that you are more comfortable with and that will explain things and take the time for you. You want an attorney who is experienced in DUI law, and who can advise you what defenses may or may not be available and what motions may be available. I would reccommend doing this before deciding whether or not to plea and what plea deal to accept.
Your BAC is low enough that a "wet reckless" plea offer may be appropriate. A wet and reckless may carry lower penalties (half the fine, no jail time, a lighter DMV course) but is considered a DUI for purposes of priorability. This means if you get stopped for DUI again within the next 10 years, and are convicted of that charge, it will be treated as a second DUI. If you are in an accident where another person dies as a result, and you are found to be under the influence of alcohol, you can be charged with murder. further, a wet reckless still may impact your auto insurance and may affect your employment.
From what you have stated, further negotiation is warranted to get you to a Wet and Reckless. If you do not feel your attorney is representing you to the fullest, you should retain another attorney. Depending on how much work your current attorney has done on the case, you may be able to get some of your money back if you discharge him/her.
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