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. 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. In addition, a defendant surrenders valuable constitutional rights when entering a guilty plea under a plea bargain. 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. Remembering these plea agreements as contacts is vital to the plea bargaining process.
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:
- 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:
- that the defendant by entering a plea has aided in ensuring the prompt and certain application of correctional measures;
- that the defendant has acknowledged guilt and shown a willingness to assume responsibility for conduct;
- 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;
- that the defendant has made public trial unnecessary when there are good reasons for not having the case dealt with in a public trial;
- 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;
- 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
- 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.
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:
- Risk Reduction Program (Defensive Driving Class Offered Through DDS)
- Community Service
- Alcohol and Drug Evaluation
- 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.
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
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.
referred to as a, “negotiated plea.”
include rights guaranteed under the Fifth and Sixth Amendment to the United
this is because there is no “consideration” to keep the offer open.