Plea Bargaining DWI cases is one of the most important parts of my job, maybe more important than actually trying DWIs to juries. Plea Bargaining is more than negotiating and back and forth. To be effective, you must have more than a superior knowledge of your case and DWI law. You have to know your opponent’s attitude and willingness to try their case. Does opposing counsel have the ability and wherewithal prove to a jury beyond a reasonable doubt that your client is guilty of DWI? Many prosecutors are working their first jobs out of law school. This is particularly true in misdemeanor courts. Lawyer jobs are very thin for the bottom 95% of graduating law students and government offices with their high turnover rate is often the first landing spot for newly minted attorneys. Understanding this, just because a lawyer lacks experience doesn’t mean he/she doesn’t have the trial skills necessary to obtain a guilty verdict. Many law schools have very successful mock trial/moot court teams and litigation training that is very effective. Some future lawyers start this training in high school debate teams on through undergrad before they even set foot onto a law school campus. It is also well known that despite our Constitution’s Presumption of Innocence, 85-90% of jurors believe a Defendant is guilty before opening statements, perhaps even a higher percentage in DWI cases. DWI Defendants constantly face an uphill fight, from the DWI cops, to the green prosecutors trying to make a name for themselves, the Judges who were mostly former prosecutors, on to the narrow minded jurors that are so prevalent in our courts. Accordingly, plea bargaining becomes a pivotal step in the process attempting to circumvent the inherent biases of the criminal justice system. This is precisely why you have to hire an attorney who is specifically trained in DWI Defense to represent you if you are arrested and charged with a DWI.
As a member of the National College of DUI Defense Attorneys, I am privy to discussions of the top DWI lawyers from all over the United States. One issue I was shocked to see was the availability of plea bargaining DWI cases in other states. Alabama, Arizona, New Jersey, and Mississippi are just a few of the States in the US that prohibit reducing any drunk driving charge. Either you plead guilty to DWI or it goes to trial. Prosecutors cannot dismiss a DWI in many states without going on the record and stating why they cannot prove their case beyond a reasonable doubt. None of this is the case in Texas by law, although some counties may adopt similar policies. However, Texas does not allow any Deferred Adjudication in DWI offenses. Deferred Adjudication is where the individual pleads to the offense but is not found guilty by the Court, rather, the individual must successfully complete a period of community supervision (probation) and then the case is dismissed. (You can get Deferred Adjudication for most felony offenses and drug charges). Travis County has one of the highest DWI arrest rates per capita in the State, and also one of the highest dismissal rates in the State. This is likely a combination of bad arrests by police officers (who are told by APD Chief not to worry about the outcome in Court) and plea bargaining between attorneys and prosecutors.
Obviously, the particular merits of every case vary and often control the quality of a plea offer. It is the Defense attorney’s duty to argue and demonstrate to the prosecutor why reducing a DWI or dismissing the case is in the best interest of justice. When I say “reduction”, this refers to the dismissal of the DWI in exchange for a plea to a non-DWI offense like Reckless Driving or Obstruction of a Highway/Passageway. These offenses do not carry the same driver’s license or insurance consequences as a DWI. Deferred Adjudication is also available for these non-DWI offenses. Sometimes it works, and sometimes it doesn’t. If you consent to a breath test that is 4 times the legal limit and crashed your vehicle into your neighbor’s house, a prosecutor is going to be pretty confident that he/she can prove their case at trial and be less likely to bargain with anything. However, for example, a smart and experienced DWI attorney will pull the Intoxilyzer records and medical records of his client and present them to the prosecutor. From there you can point out the defects in the machine combined with the hyperglycemic condition of his diabetic client created the above situation, not intoxication. The state will either accept this defense (with the records to back it up), or reject it and the client can either plea or go to trial. Many Texas counties do have “pre trial” diversion programs with strict requirements available for first time offenders, but Travis County does not for DWI cases.
I love to try DWI cases to juries. It is my favorite part of my job, and I believe that I am effective and persuasive. People that hire our office for DWI cases do so because we fight for them all the way. With that understanding, there are many situations where a trial is not in the client’s best interest. Juries can be fickle and unpredictable. If the State is offering to dismiss the DWI with a plea to a non-DWI, I often advise my clients to accept. Bird in hand better than two in the bush…or something like that. Now that we’re seeing a nationwide trend doing away with these plea deals, Texas cannot be too far behind. Bottom line: hire a DWI attorney who fights for you, and is smart enough to tell you when it’s as good as it can get. If the state will not offer anything other than a DWI, then a jury trial is often the only way to win, and it is your right to demand it.