Written by attorney Kevin Richard Kratzer

Recent Changes in Connecticut's DUI Laws Can Make Weighing a Plea Agreement Even More Difficult

The set of laws and regulations governing the criminal and administrative procedures for persons accused of “Driving under the Influence" (DUI) have always been voluminous and complex. In all circumstances, it is wise for a person accused of DUI to retain legal counsel as quickly as possible, as the consequences of a conviction are often severe. A person accused of DUI should approach his defense with the same level of gravity applied to any other life- changing situation. For a first-time DUI offender, there is a mandatory period of incarceration, heavy fines, and a lengthy suspension of driving privileges, among other sanctions. Even more troubling are the consequences of a conviction that are not or cannot be anticipated when weighing a plea offer from the State’s attorney. As with anything in life, uncertainty in the law results in a disconcerting decision-making process.

Many people are aware of Connecticut’s Alcohol Education Program (AEP) for those accused of DUI. Completion of the AEP results in an automatic dismissal of the charge. A defendant’s prior criminal history determines eligibility for the AEP. However, eligibility is only the first step in having the program granted by the Court. Many times, an objection from the State’s Attorney is all the Court needs to deny the program. The facts and circumstances around the offense weigh heavily at this stage, and the defendant needs a skilled attorney advocating on his behalf.

When the Alcohol Education Program is not an available option, difficult choices on how to proceed with the case have to be made. As mentioned earlier, the stakes are high; as even the minimum sanctions for a first-time offense are severe. While there are many ways for a defendant to challenge a DUI, no defense is a sure bet and is always very expensive. The sanctions imposed on a conviction after trial are generally much more severe than they would have been through a plea agreement. Moreover, prosecutors will take advantage of any opportunity to add further charges at trial in order to increase the risk of trying a case. For DUI’s, this often includes adding an assault charge for any resulting injuries surrounding an accident; drastically changing the stakes of the case. Any lawyer worth his salt must provide clients with a cost-benefit analysis at every stage of the case before a decision is made on how to proceed.

Recent changes in the law have made this cost-benefit analysis more difficult. The State Legislature recently passed a bill, PA11-51, which potentially has the effect of softening the sanctions levied against some DUI offenders. First, the bill changes the mandatory period of suspension for an offender’s driving privileges. The suspension has been effectively reduced from one year to 45 days, provided the offender installs an “alcohol ignition interlock device" in his vehicle.

Another important change under the bill is that incarcerated DUI offenders may be eligible for early release through a program of home confinement. As an example, a first-time offender sentenced to the maximum six-month period of incarceration could be released to his home after only serving a few weeks or less. Within the program, there are four “track levels" for release that range from release after a few days, to a few weeks, to a few months. Eligibility for home confinement is easily determined from a review of the governing statute. However, like the Alcohol Education Program, eligibility is not the only consideration. Suitability for the program and then suitability for one of four different “track levels" is also measured. These evaluations are made by the Department of Corrections (DOC). After sentencing has taken place, the DOC examines the facts and circumstances of arrest, the offender’s criminal history and background, and the offender’s amenability to alcohol treatment. Significantly, the evaluation is performed without a hearing and without any participation from an attorney. Also, there is little or no recourse for an unfavorable determination.

Although the changes in the law are beneficial to DUI offenders, the administration of the changes results in uncertainty and makes a cost-benefit analysis challenging. Unquestionably, DUI defendants will be more likely to accept a plea in situations where a sentence of several months would effectively be reduced to a period of a few weeks or less through the home confinement program. However, the temptation to accept a plea offer because of the potential for early release should not override other considerations. The potential for early release is nothing more than potential. The DOC’s determination is very hard to predict, especially at the early stages of the law’s implementation. Furthermore, the evaluation process is likely to yield unfair and inconsistent determinations without any real opportunity for attorney participation or recourse. Still, the temptation to accept a plea agreement will be great for many defendants where the opportunity for early release is present and the only alternative is a high-risk and expensive trial.

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