Can I Plea Bargain a DUI charge down to a Lesser Charge?
Can I Plea Bargain a DUI charge down to a lesser charge?
The simple answer is No. You cannot plea bargain a DUI charge down to a lesser offense in Kansas. To best understand why this is the case you should first understand a few things about the criminal justice system as a whole and how it works.
What is plea bargaining and how does it work?
The simple fact of the matter is, there are many crimes committed everyday in Johnson County. Some of the crimes are discovered and many people get arrested in connection with those crimes. Each one of the people that are arrested and accused of committing a crime have a constitutional right to have an impartial third-party hear the evidence against them and judge whether the State has met the requisite burden to prove that they have committed the crime charged. A defendant cannot be punished for a crime until the State has proved that the defendant committed the crime. Neither the State or the court system has the ability or capacity to bring every person accused of a crime to trial. This is where plea bargaining comes in.
A plea bargain is essentially a compromise or agreement between the defendant and the prosecutor’s office that is prosecuting the defendant for a crime. If a defendant chooses to enter into a plea bargain with the State, the defendant will forego the State having to prove that the defendant committed a crime and the defendant will simply admit that they committed a crime. In exchange for making the State’s job easier the State will either lessen the severity of the crime that the defendant is charged with or the State will agree to recommend a punishment that the defendant accepts, or both.
Many defendants choose to accept a plea bargain in lieu of taking their chances at trial and possibly receiving a harsher punishment.
How does a lawyer work out a plea bargain?
A lawyer’s job is to advocate for his client at all stages of the criminal justice process. This includes advocating during the plea bargaining stage. A criminal defense lawyer can use any number of tactics to achieve a good plea bargain for his client and each case is different. Here are a couple of common ways a defense lawyer will try to impact the plea offer:
- Point out the problems that the prosecutor is going to have proving their case. A defense lawyer has to be careful not to point out problems that the prosecutor can correct before trial.
- Showing the prosecutor that the defendant is addressing the root cause of what caused the defendant to commit the crime. Participating in drug and alcohol counseling is a common way to establish goodwill with the State.
- Cast doubt in the prosecutor’s mind as to what evidence will be available to them to present at trial. This happens when the defense lawyer may have a legal way of excluding a key piece of evidence. If the prosecutor is uncertain that they may be able to present key evidence they will be more likely to make a deal than to take the risk of losing the case altogether.
Do many cases get plea bargained?
Yes. The vast majority of criminal cases are resolved through a plea bargain. Most people that are accused of a crime prefer the certainty of a known tolerable outcome as opposed to an unknown potentially catastrophic outcome.
Why can’t a lawyer plea bargain a DUI case?
It’s against the law. Kansas law doesn’t allow a prosecutor to plea bargain a DUI and it doesn’t allow a judge to approve a plea bargain. Here is the relevant area of the law:
K.S.A. 8-1567 (b)(1)(m)
“No plea bargaining agreement shall be entered into nor shall any judge approve a plea bargaining agreement entered into for the purpose of permitting a person charged with a violation of this section, or a violation of any ordinance of a city or resolution of any county in this state which prohibits the acts prohibited by this section, to avoid the mandatory penalties established by this section or by the ordinance.”
That seems unfair, is that legal?
Good question. Many people see this law as unfair. It has been challenged many times and has always been upheld. The most significant challenge was in State vs. Compton. In Compton, the defendant argued that limiting the prosecutors ability to plea bargain a DUI charge was an illegal usurpation of one branch of government’s powers by another branch of government. Essentially the defendant claimed that it was illegal for the legislative branch of the government to limit the powers of the executive and judicial branch. The Supreme Court of Kansas held that the law did not sufficiently encroach upon the powers of the prosecutor so as to violate the separation of powers doctrine.
See the “How to Fight a DUI with Case Law” page to read the Compton case.
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