Georgia DUI: The Art of Plea Bargaining

A successful criminal defense attorney is one who explores and exhausts every possible avenue of defense to the benefit of their clients. If the best course of action is taking the case to trial, the successful attorney will be prepared to try the case. However, statistical evidence shows an overwhelming majority (90%-95%) of all criminal cases in the United States are resolved through a plea bargain.[1] The primary reason for defense counsel to negotiate a plea bargain is to obtain a better resolution for your client than that which may be obtained at trial. 

Clearly, plea bargaining, is a major facet of our criminal justice system. Therefore it is important to understand not only the practical aspects of plea bargaining a DUI case, but also the law that guides those practices. If plea bargaining is the best resolution of a defendant’s DUI case and plea bargaining should occur, this article serves as a guide to the plea bargaining process.  

A Plea Agreement is a Contract

It must be remembered that a plea agreement is a contract under Georgia law, which binds both prosecutor and defendant.[2] In addition, a defendant surrenders valuable constitutional rights when entering a guilty plea under a plea bargain.[3] Further, it must be known that a plea agreement may be approved or denied by the judge.

Generally, no binding contract exists and either party may withdraw their bid until each party has assented or agreed to all the terms of a proposed agreement. This remains true even when the offer states it will remain open for a specific time.[4] Remembering these plea agreements as contacts is vital to the plea bargaining process.

Pre-Trial Conferences

Typically, negotiations regarding a plea occur during a “pre-trial conference.” This process is also known as, “pre-trying” a case. These pre-trial conferences can occur anywhere from before arraignment and up to (and perhaps even during) trial. During these conferences defense counsel and the prosecutor discuss the evidence in the case, viability of defenses, and possible alternative resolutions to the case. As a practical matter, a judge will not schedule a formal pre-trial conference in a misdemeanor DUI case. To the extent a judge does become involved in a pre-trial conference, U.R.S.C. 7.3 governs the process.

Reasons to Negotiate

Although it seems unfair given a defendant’s constitutional right to a trial, most judges will impose a harsher sentence if a defendant opts for a jury trial and loses than if a defendant pleads guilty. The Uniform Court Rules allow for the judge to engage in this type of decision making. Rule 33.6 of the Uniform Rules provides:

  1. It is proper for the judge to grant charge and sentence leniency to defendants who enter pleas of guilty or nolo contendere when the interests of the public in the effective administration of criminal justice are thereby served. Among the considerations which are appropriate in determining this question are:
  2. that the defendant by entering a plea has aided in ensuring the prompt and certain application of correctional measures;
  3. that the defendant has acknowledged guilt and shown a willingness to assume responsibility for conduct;
  4. that the leniency will make possible alternative correctional measures which are better adapted to achieving rehabilitative, protective, deterrent or other purposes of correctional treatment, or will prevent undue harm to the defendant from the form of conviction;
  5. that the defendant has made public trial unnecessary when there are good reasons for not having the case dealt with in a public trial;
  6. that the defendant has given or offered cooperation when such cooperation has resulted or may result in the successful prosecution of other offenders engaged in equally serious or more serious criminal conduct;
  7. that the defendant by entering a plea has aided in avoiding delay (including delay due to crowded dockets) in the disposition of other cases and thereby has increased the probability of prompt and certain application of correctional
  8. The judge should not impose upon a defendant any sentence in excess of that which would be justified by any of the rehabilitative, protective, deterrent or other purposes of the criminal law merely because the defendant has chosen to require the prosecution to prove the defendant’s guilt at trial rather than to enter a plea of guilty or nolo contendere.

Additional reasons to plea bargain include: avoiding a habitual violator status, to save a client’s driver’s license from administrative suspension, and if a DUI defendant is under 21 years of age.

What to Do Prior to a Plea

If a plea is inevitable, defense counsel should have client consider pursuing one or more of the following prior to entering a plea:

  1. Risk Reduction Program (Defensive Driving Class Offered Through DDS)
  2. Community Service
  3. Alcohol and Drug Evaluation
  4. Victim Impact Panel

The Plea Itself

A negotiated plea is where both the defense and prosecution reach an agreement as to the crimes to be admitted to by the defendant and the punishment the defendant is to be subjected to as a result of committing those crimes.  Not only is defense counsel prohibited from accepting a plea offer without authority from client, but defense counsel is also obligated to communicate every negotiated offer to client before rejecting it on client’s behalf.

If a judge refuses to honor the negotiated plea, the defendant may withdraw their plea. All plea bargains are subject to the court’s approval and can never act as more than recommendations to the court. If a judge does reject the plea, the court must inform the defendant: (1)The court is not bound by the plea agreement, (2) the court intends to reject the plea agreement, (3) the sentence or disposition may be less favorable to the defendant than the plea agreement, and (4) the defendant may then withdraw his guilty plea as a matter of right.

A defendant also has the option of entering a non-negotiated plea. This may be a useful tool if defendant wishes to enter a plea and avoid trial but does not agree with the State’s recommended sentence. In a non-negotiated plea, however, the right to withdraw a plea is not absolute and is a matter within the judge’s discretion.

If you or someone you know has been arrested for driving under the influence, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta DUI attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.


Footnotes

[1] https://www.bja.gov/Publications/PleaBargainingResearchSummary.pdf

[2] Also referred to as a, “negotiated plea.”

[3] These include rights guaranteed under the Fifth and Sixth Amendment to the United States Constitution

[4] Usually this is because there is no “consideration” to keep the offer open.

Atlanta Pre-Trial Intervention

The Municipal Court of Atlanta has a special program for minor traffic offenses and some accident cases that involves dismissing these cases without them going on your driving history, without any points going on your drivers license, and without you using your nolo contendere plea. It is called the pre-trial intervention program – traffic division, and you can use the program once a year in the Municipal Court of Atlanta for certain citations.

What qualifies?

Some offenses that qualify are:

  1. Speeding offenses UNDER 34 miles per hour
  2. Minor traffic accidents without any injuries
  3. Three point moving violations that do not involve accidents

Entry into the program is voluntary and involves the payment of a fee and potentially completing a driver improvement course or other requirements. You can choose not to handle your case through the PTI-T program and preserve your right to a jury trial in your case. 

Call us today!

Finally, we’d love to help you navigate your traffic citation in the Municipal Court of Atlanta. Call our office for a free in-depth consultation of all your options to resolve your citation. During that consultation we will explain to you the possible and likely outcomes and what we can do for you to save you time and money. Many traffic citations in Atlanta can be handled by us without you ever going to court. Call us today for a free consultation regarding your traffic ticket at 404-581-0999.

Cobb County Misdemeanor Pretrial Diversion

Am I eligible?

If you are arrested for the following offenses, you may be eligible to participate in a diversion program.

The eligible offenses are:

  1. Minor in Possession of Alcohol
  2. Possession of a Fake ID
  3. Possession of Marijuana (VGCSA)
  4. Theft by Shoplifting
  5. Theft by Taking

So if you are arrested on any of these charges, do not walk in to court and plead guilty. You definitely will want to consider the diversion program. If you are accepted and complete the diversion program, then the case will be dismissed and your record will be sealed.

What do I do?

In Cobb County, the prosecutor, otherwise known as the Solicitor General, will require you to have an attorney. They will not let anyone enter into the diversion program if they are not represented by an attorney. We will work with you on a payment plan that fits your budget.

There is a $ 350 fee for any person that would like to participate in the diversion program.

There are several requirements that must be completed within 12 weeks once you enter the program. You can complete the requirements earlier than 12 weeks.

  1. Community Service:
    1. For Marijuana possession, theft by shoplifting and theft by taking, you must complete 40 hours of community service.
    2. For possession of a fake ID, you must complete 60 hours of community service.
    3. For minor in possession of alcohol, the community service varies:
      1. 40 hours – if you blow below a .08 or are not offered an opportunity to blow into a portable breath device
      2. 60 hours – if you possess a fake ID and blow below a .08
  • 80 hours – if you blow between a .08 and .15
  1. 120 hours – if you blow above a .15 or refuse.
  1. All Cobb County Police Officers are trained to request a breath test if you are caught with an alcohol and are not 21 years of age.
  1. Admissions
    1. For possession of a Fake ID and Minor in Possession of Alcohol, the defendant must admit, in writing, from whom and where they obtained the alcohol and fake ID
  2. Clean Screens
    1. You must pass 3 drug/alcohol screens during the 12 weeks. These drugs screens must be done through the Cobb County Superior Court Drug Lab unless previous permission is granted to do it elsewhere.
    2. These drug screens are for Minor in Possession of Alcohol, Fake ID and Marijuana Possession cases only.
  3. Alcohol and Drug Evaluation
    1. If you are charged with Minor in Possession of Alcohol, Fake ID or Marijuana Possession then you must complete an evaluation from a state certified evaluator. If this evaluation requires treatment, then you must complete the treatment within the allotted time.
  4. Theft Seminar
    1. If charged with theft by shoplifting or theft by taking, you must complete an approved theft seminar.
  5. Essay
    1. If you are under 21 years old, then you must handwrite a 2 page essay about why you should be admitted into the diversion program.
  6. Additional Classes
    1. For Minor in Possession of Alcohol, Possession of a Fake ID and Possession of Marijuana (VGCSA) you must complete one of the following:
      1. MADD Victim Impact Panel
      2. Teen Drug and Alcohol Impact Program (only if under 25 years old)
  • S.M.A.R.T. Program

So if you are arrested for any of the above, do not panic. Please call us so we can discuss your case, your defenses to your case and see if you are eligible to participate in the diversion program. It is a great way to make sure you do not have a criminal record.

Give us a call 24/7 at 404-581-0999 or email mike@peachstatelawyer.com

Pre-Trial Diversion in Georgia

Being arrested for the first time can be one of the most stressful experiences in one’s life. An arrest has the potential to change everything – where you work, go to school, your car insurance, where you live, and how others see you. If this is the first time you have found yourself in the position, do not walk into court and plea Guilty or Nolo Contendere, because there may be another option for you. A Georgia criminal defense attorney may be able to negotiate something different – something that doesn’t require you to plead guilty. If you enter a plea of Guilty or Nolo, the arrests and convictions do not age off your record; they remain on there forever. There are only a few ways that an arrest is restricted off your record from the public seeing it. Participating in a pretrial diversion program is one of those ways and might be an option to explore for your criminal case. Several counties and cities across Georgia have pretrial diversion programs designed to give you a second chance, and serve as an alternative to jail and convictions.

Pretrial diversion is an alternative to the traditional court process. It allows some first offenders, and even still others who have a history, to complete requirements prior to a court date in exchange for their case being completely dismissed. Requirements may include community service, theft class, or anger management. Pretrial diversion may be available for you if you were arrested in Georgia for Possession of Marijuana, Possession of drugs, Shoplifting, Battery, Assault, Minor in Possession, and the list goes on. A criminal defense attorney who is knowledgeable with the court can negotiate that the prosecutors potentially divert you from prosecution altogether, resulting in your case being dismissed.

Once you successfully complete a pretrial diversion program in Georgia as a first offender, the arrest itself disappears off your criminal record from the public’s view, and you can truthfully state with pride that you have never been convicted of a crime before. Your case will be dismissed in its entirety and you can breathe a sigh of relief.

If you are interested in resolving your case through pretrial diversion in Georgia, call us today for a free consultation at 404-581-0999. W. Scott Smith and his team have years and years of experience negotiating clients into pretrial diversion programs with the most favorable terms, even if the clients were ineligible under the State’s traditional guidelines.

 

by Mary Agramonte