Michigan Criminal Defense Lawyer Blog
In my previous DUI article, we looked at pre-trials. We learned that there can be multiple pre-trials in a DUI (or any criminal) case, and that the ultimate goal of a pre-trial is to work out a plea arrangement that will avoid a person actually holding a trial on his or her charge. It was also pointed out that trials are rare in DUI cases, and that the overwhelming majority of drunk driving charges are resolved through a plea. But what is a plea? How is a plea different from a plea bargain (if it is)? What about a sentence bargain? In this article, I want to provide straight answers to these questions and explain how lawyers use pleas, plea bargains and sentence bargains to resolve DUI and criminal cases.
First, let’s define things a bit. In this article and in the larger world, the word “plea” is generally (but not always) used to mean a plea of guilty to some charge, even if not the one originally brought. In my recent 2-part article about the arraignment stage of a DUI case, we were reminded that when a person is first charged with Operating While Intoxicated (OWI), he or she should always plead “not guilty” at the arraignment. In the broadest sense (as it relates to DUI and criminal cases), a plea is an answer, or response, to a charge. Therefore, we begin a case by pleading not guilty to the original charge that’s brought. We’ll get into this more later, but so that the reader doesn’t fear this will some long, boring and useless article about legal procedure, the primary reason a person should plead not guilty at his or her arraignment is because very often, a plea bargain can be worked out down the road so that the person does not wind up being convicted of that original charge. For example, in the case of an OWI charge (which carries 6 points, a fine of up to $500, and a 6-month suspension of the driver’s license with NO driving whatsoever for the first 30 days, followed by 5 months of restricted driving, like to and from work), it is common for the lawyer to be able to negotiate with the prosecutor so that the client pleads to a less severe charge, like Operating While Visibly Impaired (usually called “Impaired”), which only carries 4 points (as opposed to 6), a fine of up to $300 (instead of $500) and will merely restrict a driver’s license for 90 days (rather than the tougher suspension that is imposed for an OWI). In other words, you start by pleading “not guilty” so a better deal can be worked out later on.
Not all pleas, however, are plea bargains, but all plea bargains and plea deals (a “plea bargain” and a “plea deal” are the same thing) are pleas. Thus, someone might say that a particular case was resolved by a plea, but that may or may not include a plea bargain, or plea deal. And before we sort this out, here’s one more thing to throw in the mix: Sometimes, the prosecutor is unwilling to allow a plea bargain, and some courts, to kind of make up for that, will work out a sentence bargain and agree to certain specific terms for what will ultimately happen to the person, like an agreement for no jail. In most cases, a plea is negotiated (lawyers most often say “worked out”) between the prosecutor and defense lawyer at a pre-trial meeting, and then it is “put on the record,” meaning the resolution is finalized by the Judge in open court.
Let’s use a realistic but hypothetical example: Imagine Tipsy Tina gets arrested in the Detroit area for a DUI. She is written up for OWI (Operating While Intoxicated) and is released from jail the next morning. After taking the time to look around online, she hires me as her DUI lawyer. She comes to my office about a week after her arrest, and fortunately, the court in which her case is pending will allow me to file papers waiving her arraignment, meaning that she won’t have to go to court to be arraigned, and a plea of “not guilty” to the OWI charge will automatically be entered for her. About a month after coming to my office, we have our first real court date – the pre-trial. I report to court and ultimately find my way into a back conference room where I meet with the prosecutor….
In my article about pre-trials, I pointed out that there may be, and often is more than one such meeting. After all, the goal at a pre-trial is to come to an agreement on a plea; as a result, there are countless reasons why the defense lawyer and prosecutor may have to get together more than once. For this example, assume that Tina has just informed me that in about 3 weeks, her employer needs her to go out of town for a 5 day conference. As it turns out, it’s just better for her if we return to court after her trip, in about a month, to take up her case again. I explain this to the prosecutor, who has no problem with my request to come back another day. We do, however, discuss the case a bit, and I learn that the prosecutor, at that time, would not have been able to agree to a plea bargain reducing Tina’s charge from OWI to Impaired driving anyway, because of some “issue” (I use this term deliberately and loosely so we don’t have to go off on a tangent and lose our focus examining that). The “issue” pointed out by the prosecutor will require me to get some information to her, and make a special request for a plea bargain (in Macomb and Oakland County, this called a “deviation request,” while in Wayne County it’s called a “variance”).
I go back to my office and decide that, under the circumstances, it would be helpful for me to have Tina undergo a substance abuse evaluation. This, by the way, is NOT typical, but can be helpful in certain situations. Anyway, Tina has her evaluation completed within a short period of time, and because I find it helpful, I enclose it with and reference it my deviation request to the prosecutor, where I make my case as to why she should be able to plead guilty to the less-serious Impaired Driving charge instead of the straight-up OWI on her ticket.
When we go back to court the next time, the prosecutor informs me that the deviation request has been granted and that Tina can have a plea bargain allowing her to bypass the more severe consequences associated with the original OWI charge. Accordingly, Tina pleads guilty to Impaired driving and thereby never loses her ability to drive, while saving a boatload of money and avoiding all kinds of other consequences, as well. In Tina’s example, we had all kinds of “pleas.” First, I entered a plea of “not guilty” for her when I filed papers with the court and waived her arraignment. Next, I engaged in plea negotiations and was able to obtain a plea bargain for her. Finally, she plead guilty to the bargained-down charge.
Let’s next look at an example where there is no plea bargain or plea deal, but a sentence bargain is worked out, instead. In this hypothetical example, Dangerous Dan and his wife, Bad Luck Brenda, are out one night and they both have too much to drink. On the drive home, Dan loses control and winds up smashing his car into a tree and his wife, who was a passenger, suffers a serious broken leg. Dan gets charged with Operating While Intoxicated causing serious injury, a felony punishable by up to 5 years in prison. Dan’s wife, Brenda, feels they were both at fault, and wants Dan to get out of this charge as painlessly as possible, but the prosecutor’s office has a policy that will not allow a plea bargain of any kind in a drunk driving causing serious injury case. Brenda tries to get the prosecutor to make a deal, but she is firmly informed that Dan’s is a “policy” case, and there will be no reduction of the charge against Dan. Of course, the evidence against Dan is solid; he had to be removed from the car by the fire department, so it’s not like there was any doubt he was driving it or that he had too much to drink.
Dan’s lawyer is Strategic Sam, and he realizes that the case is pretty much airtight and that there won’t be any kind of plea deal, so he looks to procure a sentence bargain, instead. Sam knows that this is accomplished by getting the Judge to agree, on the record and in open court, to a specific sentencing outcome of some sort. Exactly how this is done differs from court to court; in some cases, the prosecutor and the defense lawyer go back and meet with the Judge in chambers and hash everything out. In other courts, the Judge will hear from the defense lawyer while he or she sits on the bench, without any kind of “off the record” discussion. No matter how it’s done, however, in every such case, the Judge will state, on the record exactly what he or she has agreed to. In most cases, the Judge will tentatively agree to either a particular sentence (like straight probation with no jail) or to a sentencing range (in cases where someone has a really bad record and, like Dan, faces a charge that carries a potential multi-year prison term) for something like “no more than 90 days in jail,” or “the bottom (meaning lower) portion of the applicable sentencing guidelines. If, in our example, Dan had 2 prior drunk driving convictions and 1 prior drug delivery conviction on his record, his sentencing guidelines might provide for incarceration from between 3 and 18 months, meaning he must get at least 3 months in jail, but could also get anything up to 18 months in the state prison system, as well. A Judge may agree to sentence Dan to the bottom half of the guidelines (no more than 9 months in jail) which would mean no prison. The Judge could also agree to the lower 1/3 of the guidelines (meaning up to 6 months in jail), or just the “lower end” of the guidelines. It’s different in every court and with every Judge, and while the example here may not be accurate in terms of actual potential sentences, it does illustrate how a sentence bargain can be used, especially when there is no plea bargain.
Beyond pleas, plea bargains and sentence bargains, there are other mechanisms a lawyer can use in the plea negotiation process. Although these DO NOT apply to DUI cases, most people have heard the term “under advisement.” In other criminal cases (and again, for the most part excluded by law from being used in DUI cases), there are various kinds of pleas available to people under 24 years of age (HYTA, or Holmes Youthful Trainee Act), or when charged with certain, specific offenses (MCL 769.4a in domestic violence cases, for example, or MCL 333.7411 in drug cases), that allow a person to kind of (but not really) plead guilty to a charge under an arrangement where they’ll be expected to complete a term of probation, and, if they do, then the whole case is dismissed. In these circumstance, nothing goes on the person’s record, so nothing needs to “come off” later. There are other plea deals (MCL 777.1) where a person will plead guilty to a charge and the conviction will go on his or her record, but, if he or she completes the term of probation, the charge will be removed (i.e., “come off”) his or her criminal record. While interesting and useful in other situations, these legal maneuvers cannot be used in drunk driving cases, so we’ll skip any further examination of them here.
In the strictest sense, this examination really covers the whole range of pleas. Often, however, the plea itself is far less dramatic than the negotiations that gave rise to it. A plea, as we have seen and variously examined, really boils down to an answer to a criminal charge. It starts out with “not guilty” and usually evolves from there.
If you are facing a DUI in any Detroit-area court, meaning anywhere in Wayne, Oakland or Macomb County, and you’re looking for a lawyer, keep doing your homework. Read as much as you can from the various DUI lawyers. Click around the DUI section of this blog and the DUI area of my website, as well. Compare and contrast. When you’ve narrowed down the potential candidates, pick up the phone and call around. All of my consultations are done over the phone, right when you call. Whether it’s to get my take on your case early in your search, or later, if you want a second opinion, you can reach my office anytime Monday through Friday, during regular business hours (8:30 a.m. until 5:00 p.m.) at 586-465-1980. We’re here to help.