Sunday, July 27, 2014

Can District Attorneys Renege on DWI Plea Agreements?

IMHO Real men don't break their word, but it happens!

To Renege
to renounce, to go back on a contract, a promise, or a negotiation

It happens at car dealerships, real estate transactions, and even in our personal relationships BUT can it happen in our Court dealings as well? Yes it can but thank G-d not that often.


When it does happen: how it happens, why it happens, and what can be done about it are the main issues of this blog post.

First, it is usually an assistant district attorney that goes back on their word or seeks to change or alter a plea deal. Your defense attorney thought one thing, and they thought another.

Second,  it could have been a mis-communication, or a mis-understanding of terms. Many deals have numerous aspects or conditions. Kinda like, "if this then that" or "if that then this." It could involve the final charges (offenses), time periods of probation or jail, conditional discharges, money (as in fines), special conditions (aka drug/alcohol treatment/restrictions).

The renege could have also come about because of a re-review of a file by a judge or assistant DA, new or recently discovered evidence (blood test results, prior offense history, new charges), or a change of assistant DAs, or a change of policy.

Third and last, what can be done is a re-sit down.

A Tale of a DWI Renege

ADAs can sometimes be #@*** and my last big renege ultimately resulted in a creative plea bargain arrangement. It was complex to say the least. It involves three choices (options) for my client. Most plea bargains don't get this "creative." I really felt like Monty Hall (remember the game show Let's Make a Deal).

The first option: a review by the probation department (PSI: pre-sentence investigation). The Probation Officer could recommend: two or three years of probation, or jail, or jail plus probation, or just a CD (conditional discharge). This I felt was a big risk because of the case dynamics. Some cases are bigger risks than others.

The second option: some jail plus a guarantee of a CD (conditional discharge), NO probation.

The third option: Plea to the top count (top charge of all of them) and all the mandatory minimums (penalties and consequences) associated with that choice. In this case longer license revocation (at least in theory) and higher fines. In addition, the final record would reflect the higher level offense.

Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.

I am certified in Field Sobriety and Breath Alcohol Testing, and an active member of the National College of DUI Defense (NCDD). My online materials include over 500 blog posts, dozens of articles, and over 500 informative videos on my youtube channel.

I have co-authored Strategies for Defending DWI Cases in New York, in both 2011 and 2013. These are West Thomson legal manuals on New York State DWI defense, and focus on the best practices for other lawyers handling a New York DWI case. I was selected by Super Lawyers as a Upstate New York 2013 Rising Star in DWI/DUI Defense based on my experience, contributions, and professional standing.