By Amy Vandervort-Clark, J.D. | Legally reviewed by Melissa Bender, Esq. | Last reviewed January 03, 2024
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The following are the stories of two criminal defendants charged with driving under the influence of alcohol or drugs. Duncan Smith is a first-time offender with a clean record. Sandra Jones is a repeat offender convicted of a DUI charge a year earlier.
These stories will walk you through the entire process, starting with the arrest to the plea entered in court. Ultimately, both DUI cases settle without a trial, one with a plea bargain. Plea bargains happen in approximately 98% of all criminal cases. Very few cases go to trial, but trial is always a possibility.
All DUI cases are different. State laws are constantly changing. The circumstances may be different if you are underage drinking and driving or if you are a commercial driver. These examples show the possible issues involved in an impaired driving case. Check the impaired driving laws in your jurisdiction for more information.
Duncan Smith was driving home after meeting with a friend for some drinks to celebrate the end of another week. He had two alcoholic beverages but wasn't a particularly large man and hadn't eaten. As a result, the effect of the alcohol was noticeable. Still feeling confident that two drinks wouldn't hinder him, he said goodnight to his friend and drove home.
On the way home, his cell phone slid out of his pocket and under the seat. He glanced down to see where it had fallen. By the time he looked up, it was too late. Duncan's car jumped the curb and smashed into a fire hydrant.
Fortunately, Duncan had been driving at a relatively low speed. He could walk away from the crash, and no injuries occurred. As he exited his car to survey the damage, a police officer showed up. Suspecting the accident was alcohol-related, the officer gave Duncan field sobriety tests.
The police officer asked Duncan to stand on one leg and try to touch his nose with one finger. The officer shined a flashlight in Duncan's eyes, making him look left and right. The police officer noticed that Duncan's eyes were red and watery. Even though Duncan passed the sobriety tests, because he had hit a hydrant and his eyes were red and watery, the officer placed him under arrest.
The officer next asked Duncan to take part in chemical testing. He advised Duncan that he could refuse the chemical tests, but by refusing, under the state's implied consent law, Duncan would face immediate driver's license suspension. Duncan felt his blood alcohol concentration would be below the state's legal limit and agreed.
The officer took Duncan to the hospital to get a blood test. The test showed that Duncan's blood alcohol content (BAC) was .09%, just above the per se legal limit of .08%. The officer confiscated his driver's license, instructing Duncan to contact the state's DMV within 30 days to challenge his license revocation.
The police officer took Duncan to the police station for booking.
Sandra Jones was driving home after a long night of drinking at the local tavern. It had been a rough week, and she wanted to relax. Sandra is petite and lost count of how much alcohol she consumed. Sandra knew she shouldn't try to drive home, but it was very late. Her home wasn't far from the tavern, and she didn't want to take a cab and then have to come pick up her car the following day.
On the way home, a law enforcement officer saw Sandra noticeably weaving in and out of her lane. Suspecting the motorist to be under the influence of drugs or alcohol, the officer pulled her over. The officer noted the smell of alcohol on Sandra's breath. He asked her for her license and to step out of the car. Sandra calmly did all that the officer asked of her.
Once Sandra was outside of her car, the officer asked her where she was coming from and if she had been drinking. Sandra knew her rights and said she'd like to answer, but she should probably consult a lawyer first. The officer then told Sandra that she needed to take some sobriety tests. State law did not require the officer to allow her to consult an attorney first. The officer also told her that test refusal would immediately suspend her driver's license.
Based on the officer's observations, he could arrest her on an alcohol-impaired driving offense without chemical tests.
Sandra had difficulty standing on one foot and missed touching her nose twice. The officer noted her bloodshot and teary eyes and then gave Sandra a Breathalyzer test. The test reported that Sandra's BAC level was 0.12%, well above her state's 0.08% per se limit. The officer placed Sandra under arrest and took her to the police station. At the station, the officer had Sandra take another breath test to verify the amount of alcohol in her system for court.
After Duncan's blood test revealed that his BAC was over the legal limit, the officer booked Duncan at the station. The officer had Duncan photographed, fingerprinted, and his possessions cataloged. Duncan was then put into a jail cell.
Duncan's booking report read:
While Duncan sat in the jail cell, the arresting officer completed his paperwork, documenting the arrest, his investigation, and attaching his pages of notes and comments. Once the officer finished his report, a copy went to the district attorney's (DA) office. The DA received the report, read it, and filled out the appropriate criminal complaint forms.
Like Duncan, Sandra Jones went through booking. The officer photographed her and took her fingerprints. Her possessions were also cataloged. The police officer put Sandra in a jail cell.
Sandra's booking report read:
While Sandra sat in jail, the arresting officer completed his arrest paperwork. The officer then delivered the report to the DA, who completed the appropriate criminal complaint forms.
For several hours, Duncan sat in a cell. After the police ran background checks on Duncan, an officer told him that his bail was set at $1,000 and that he could make a phone call. Duncan called his mother, who came to the station and paid his bail. Duncan recieved a summons to appear next week in court for an arraignment.
Police ran background checks on Sandra and found that she had a DUI conviction from the prior year. Her bail is set at $5,000. Sandra didn't know anyone who could pay her bail and was embarrassed to ask anyone in her family. Sandra spent the night in jail. The court scheduled her arraignment for the next day.
Duncan returned home after his bail was posted. He was told to either hire a lawyer or apply for the appointment of a public defender. Not having much money, Duncan contacted the public defender's office and was instructed to meet with his appointed public defender shortly before his scheduled arraignment.
Law enforcement took Sandra to court the following morning for her arraignment. They explained to Sandra that at her arraignment, she could enter a plea, ask for a court-appointed lawyer, or request time to hire her own lawyer. Since Sandra had a high BAC and was a repeat offender, she would not be eligible for release on her own recognizance or without paying bail.
Once at the courthouse, officers put Sandra in the courthouse holding cell to await her hearing before the judge. After waiting in lockup for three hours, a bailiff led her into the courtroom still handcuffed.
Judge: Sandra Jones?
Sandra: Yes, ma'am, that's me.
Judge: You may call me “your Honor". Do you have a lawyer?
Sandra: No, your Honor, I can't afford one.
Judge: If you'd like, we can get a public defender to represent you if you don't intend to plead guilty at this time.
Sandra: I guess I should talk to a lawyer first, your Honor.
Judge: Okay, we'll have the clerk get a public defender down here. Discuss it with the public defender, and we'll call you back later.
Sandra: Thank you, your Honor.
On the day of his arraignment, Duncan met with his public defender, Mary Swift, outside the courtroom.
Mary: Duncan Smith?
Duncan: That's me.
Mary: Hi, I'm the attorney appointed to represent you from the public defender's office. This is your first offense, and you have a clean record.
Duncan: That's right, I've never had anything like this happen to me before.
Mary: It looks like you were barely over the limit. I can probably get you a deal with a clean record.
Duncan: I think that test was flawed. I mean, it only put me .01 over the BAC limit anyway, right? Can't we just fight the test? I'm no alcoholic. I had two beers with a buddy, and that's it.
Mary: Well, we could fight, and it's your right to if you want to. However, challenging the test itself is not likely to succeed. You took a blood test. They tend to be more accurate and harder to attack than a Breathalyzer or breath test. I would strongly suggest that you let me try to work out a deal with the DA based on your clean record and then consider your options.
Duncan: Listen, you don't understand, I can't have this happen. I'm going to graduate soon. I'll be applying for jobs. As it is, I'm already in school and working a part-time job, I don't even have time for this. It's ridiculous. The police officer didn't even read me my rights!
Mary: Did the officer question you?
Duncan: Not really, he just instructed me to do those tests, which I passed. Then he arrested me, and they took a blood test.
Mary: If the police didn't question you, then they didn't have to read you your rights. Listen, I understand the situation, let me go talk to the DA and see what we can do.
Duncan: Okay, please do your best. I can't deal with this.
After her discussion with the judge, Sandra returned to the courthouse holding cell and sat there for several hours before the public defender came to see her.
Mary: Are you Sandra Jones?
Sandra: Yes.
Mary: Hi, I'm Mary Swift from the public defender's office, how are you?
Sandra: I've been better. I didn't sleep, can't shower, and I'm bored with all this waiting.
Mary: Unfortunately, you're going to be here for a while longer. This is your second offense within 2 years. The law requires that you spend a mandatory minimum of 48 hours in lockup for a second offense. If you plead guilty this afternoon, however, you can get out tomorrow. You'll go on probation, pay a fine, and attend an alcohol program. You will also lose your driving privileges for one year but might qualify for a restricted license with an ignition interlock device.
Sandra: What if I want to fight the charges?
Mary: It's your right to if you want to, but as your attorney, I wouldn't advise it. I've read the police report. You failed sobriety tests, your eyes were bloodshot, and the officer could detect alcohol on your breath. They have the officer's video footage. You had a high BAC.
Given your blood alcohol level was well over the limit and this was your second offense in just over a year, I don't think you'll get much sympathy. If you fight it and lose, you can get up to a year in jail as opposed to one more day. You'll still be on probation, have to pay the fines, and have to attend an alcohol program. Listen, I have three other clients I need to go see, so think it over, and I'll come back before our hearing this afternoon.
While Duncan waited, Mary went to the DA and talked to her:
Mary: I'm handling the Duncan Smith case, have you read the report? He's only .01% over the limit, has a spotless record, is attending college, and working a part-time job. If anyone deserves a lighter sentence, it's this guy. What can we do?
DA: I agree the kid is no real threat, but you know the DUI laws. Plus, my boss has a zero-tolerance policy on DUIs. There's really not much I can do.
Mary: No one's saying he gets off with nothing, but surely any punishment needs to take into account that he's in college and working. Does it really benefit anyone to have this kid drop out of college for being .01 over the limit? His record is completely clean. How about a lesser charge if you can't be flexible on a DUI?
DA: I can knock the charge down to reckless driving. It's still a misdemeanor. He'd mostly be doing community service, say 120 hours, and only six months probation. That way, he could avoid having a DUI on his record. I can't do anything about his driver's license or the drunk driver's education classes. He'll have to talk to the DMV.
Mary then went back to Duncan with the offer.
Mary: It's a good offer. It keeps a DUI off your record, and you'll largely be doing community service.
Duncan: Still seems ridiculous to me, I had two beers! But I don't want to risk imprisonment and a DUI on my record. I'll take the offer.
When Duncan came before the judge, the DA and his public defender informed the judge of the deal. Mary advised Duncan to plead no contest rather than guilty because a no contest plea could not be used in a subsequent trial if the city sued him over the fire hydrant he ran into.
That afternoon, the bailiff got Sandra again for court. Sandra went back before the judge. Mary approached and asked the judge for a brief moment to discuss with her client.
Mary: Ms. Jones, I spoke to the DA. The best we can do is get you out tomorrow, with a 12-month alcohol rehab program and three years of probation if you agree to plead guilty right now. Instead of fines though, the DA agreed that you can serve community service instead.
Sandra: I guess that's better than a year in jail plus all that.
Mary: Great, then just answer all the questions the judge asks. We'll get you out of here tomorrow.
Mary turned to the judge and said that they were ready.
Judge: Okay, we're back on the record. The matter is Sandra Jones, a continuation of the hearing this morning. Ms. Jones, have you discussed what you want to do with your lawyer?
Sandra: Yes, your Honor.
Judge: Counsel, have you and the DA reached a settlement on your client's behalf?
Mary: Yes, your Honor.
DA: Yes, your Honor. Ms. Jones will serve one more day of jail time, 12 months of alcohol rehab, three years probation, and community service hours instead of the $1,000 fine, provided she pleads guilty.
Judge: And how do you plead to the charge of a second DUI?
Sandra: Guilty, your Honor.
Judge: Ms. Jones, do you understand that by pleading guilty, you waive your right to a jury trial?
Sandra: Yes, your Honor.
Judge: Ms. Jones, do you understand that by pleading guilty, you waive your right to cross-examine your accusers?
Sandra: Yes, your Honor.
Judge: Ms. Jones, do you understand that by pleading guilty, you waive your right against self-incrimination under the Fifth Amendment to the US Constitution?
Sandra: Yes, your Honor.
Judge: Did anyone force or coerce you into accepting this settlement?
Sandra: No, your Honor.
Judge: Then you are pleading guilty because you were driving while under the influence of alcohol?
Sandra: Yes, your Honor.
The judge sentenced Sandra to the terms of her guilty plea. The judge instructed her to enroll in a court-approved alcohol plan no later than two weeks from the current date. The judge then asked her once again whether she understood the terms, and again Sandra replied that she did. The bailiff then took Sandra back to the courthouse lockup to spend one more day in jail.
Driving under the influence is responsible for one-third of traffic-related fatalities in the United States. States take drugged and drunk driving laws very seriously. Not all DUI cases will fall clearly into the categories discussed in this article. Each jurisdiction can have its own process and procedures. Some areas don't allow a DUI charge to be pleaded down to another offense.
If you are facing a DUI charge, a skilled legal professional can review your case and provide legal advice. To learn more about your rights and your legal options, contact a local DUI attorney.
Contact a qualified DUI attorney to make sure your rights are protected.
Get tailored advice and ask your legal questions. Many attorneys offer free consultations.