How would a lawyer go about getting a felony dui reduced to a misdemeanor? What is the likelihood of getting this kind of outcome? Is there anything the person being charged could do to help their sentencing go in that direction?
Criminal Defense Attorney
This is a very complex question. First and foremost, there is nothing the client can do to help because it is not a sentencing issue, it is a charging issue. This decision will come from the State Attorneys' office, not the judge. For an individual to be charged with a Felony DUI, they either have at least two previous DUI convictions or they have injured somebody seriously. Either way, it's a dicey situation because the state attorney will consider you a menace on their roads and will not be looking to break this case down.. More often than not, they are actually looking for state prison time on these cases. Your best bet is to hire an attorney that has extensive DUI motion and trial experience. The case will have to be attacked and evidence will have to be excluded before the State will consider breaking anything down. Usually, the state prefers to lose these at trial instead of breaking them. Good luck to you, and get good representation.
A felony DUI charge can be a tricky charging decision, depending upon either the injuries sustained or the age of the underlying prior DUI's. You must hire a DUI specialist in such situations, thus making sure that the attorney practices mostly (say > 75%) DUI cases. Such attorneys exist, and may be able to get you the outcome you desire. Having said that, you must act fast.
In order to attack a felony DUI charge, it's best to do so immediately, while the case is still in the "intake phase". The reasoning here is that, once you're arrested, your arrest report is sitting on some paralegal's desk at the State Attorney's office. This paralegal's job is to make a 'charging decision' on your case that can be substantiated by the evidence. If you do not hire an attorney, the paralegal may have no other option but to take the police officer's report at face value, and file a felony dui charge as requested in the arrest report (the 'ol rubber stamping routine...). On a felony dui, such a charge can arise out of either the severity of the injuries sustained, or by a past record of multiple dui convictions. Either way, a dui specialist will be able to attack said criteria early on, showing the intake decision makers that your case should not be upgraded. You must act fast.
There are many ways but what I have done recently that has been very succesful is challenging the prior convictiosn. If you were not represented by an attorney and that does include Public Defender's some clients get confused by this, and did not properly waive your rights to an attorney they cannot use that conviction to enhance your DUI misdemeanor to a felony. This attack would be by a motion to dismiss for lack of jurisdiction. The case is Kelly v. State. See below from my motion.
The law in Florida is clear. The State may not use an uncounseled misdemeanor conviction to enhance a later crime to a felony except under certain well defined circumstances. The law is clear that an uncounseled conviction in which there was no waiver of counsel will not support a finding of guilt or an increased term of imprisonment on a subsequent conviction. Baldasar v. Illinois, 446 U.S. 222, 100 S. Ct. 1585, 64 L. Ed. 2d 169, reh'g denied, 447 U.S. 930, 100 S. Ct. 3030, 65 L. Ed. 2d 1125 (1980); Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972); Burgett v. Texas, 389 U.S. 109, 88 S. [**7] Ct. 258, 19 L. Ed. 2d 319 (1967); Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963).
In State of Florida v. Kelly , the Supreme Court of Florida held that the State cannot use an uncounseled misdemeanor DUI conviction to increase or enhance a Defendant’s later misdemeanor to a felony, unless the Defendant validly waived his right to counsel with regard to those prior convictions. 2008 Fla. Lexis 2507 (Fla. 2008). Convictions obtained in violation of a defendant's right to counsel are void. State of Florida v. Kelly 2008 Fla. Lexis 2507 (Fla. 2008).