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DUI Case at a checkpoint (.09)- How to negotiate after the initial offer from the DA is provided?

Los Angeles, CA |

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?

I would traditionally ask my lawyer this question but he's really been terrible to work with. I obviously paid up front so have very little I can do with him at this point. If he's unable to help me, I will consider hiring someone else to continue this for me. It's clear he just wants to get this case over with as he has bigger fish to fry.

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Attorney answers 7

Posted

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.

Posted

You absolutely have room to negotiate

Posted

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.

Asker

Posted

So far all I have been offered is the standard first time DUI sentence and my attorney is advising me to accept it or pay him 10k++ to go to trial.

Amber H Lunsford

Amber H Lunsford

Posted

Understood. It does cost more money to have a private attorney take a case to trial because trial involves quite a bit of work. If you feel uncomfortable with this attorney, I still advise you to get someone you can work with. Depending on how much has been done on your case, you may be able to get some or most of your money back. On the other hand, if this attorney is working with you and you have no good cause to leave, I would suggest staying with your attorney. Your initial question leads me to suggest new counsel. None of us here can really advise you whether or not to accept the DA's offer, or really what approach to take vecause none of us have seen your discovery, looked at your FST's, interviewed you, taken a look at your rap, read the report or spoken with the DA to see what can be worked out. Nor should we. These are things that you will want to do in a private and confidential setting where privilege and confidentiality apply and not on a public forum that is equally accessible by prosecutors as defense attorneys.

Posted

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).

Asker

Posted

Appreciate the response. How much should I expect to spend going to trial? Most of the work has been done (discovery, DMV hearing, etc) at this point. I am moving to Sacramento in a couple weeks for work so not sure how easy it will be for me to get back for trial. Thanks again.

Aaron Reuben Bortel

Aaron Reuben Bortel

Posted

The range depends on the attorney. Anywhere from 5-10K, but worth every penny with what's on the line. Also, if your attorney lost the DMV hearing, a not guilty jury trial verdict on the 23152(b) charge will reverse the suspension once DMV is properly notified. Aaron Bortel, Esq. 650 5th Street, Suite 508 San Francisco, CA 94107 www.bortel-law.com Ofc. 415.247.0700 Ofc. 888.373.8000 Fax 415.247.0702

Philip Leo Gagnon Jr

Philip Leo Gagnon Jr

Posted

This is the most sage advice you have been offered. If your present attorney "has bigger fish to fry" then he is not giving you and your case his utmost attention. He has a fiduciary duty to YOU, to give his best efforts on YOUR case. If you hired the wrong attorney, you need to find the right one. You need an attorney with expertise in DUI, the skills to take your case to trial and the passion to win. Your case has numerous good facts that a skilled DUI trial attorney could use to compromise the Prosecution’s case and create reasonable doubt. I would be happy to discuss your case with you.

Posted

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.

SLG Criminal Law Group
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Oscar Ernesto Toscano

Oscar Ernesto Toscano

Posted

The manufacturer of the breath test machines normally admits to a margin of error of + or - .02 at .10. This means that the blood result you had could be a .69 or .77 or it could be a .109 or .117. The presumption of innocence requires that the lowest possible test of the two possible be considered.

Posted

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

Posted

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.

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