Nedlin: To plead or not to plead

One of the most-often-asked questions I received as a prosecutor was: What kind of deal am I going to get, and do I need an attorney? Great questions!

It is your first court appearance, and you show up without an attorney at the time stated on the summons. You are nervous and unsure as you enter the courtroom of your fate and how the process works. As a pro se defendant (one not represented by an attorney) you have the right to remain unrepresented. In the courtroom will be the prosecutor and the court clerk.

In Pitkin County, the judge will not take the bench until 10 a.m. You will meet personally with the prosecutor, who already has looked at your case file. At that time, an offer will be made. The prosecutor takes many facts into consideration before making an offer, such as the breath-alcohol content, was there an accident, injuries, attitude during the arrest and whether there are any prior alcohol-related offenses. Not to mention the directive of the district attorney-elect and the policies that have been mandated to be followed by all deputy district attorneys.

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If you choose to accept the offer, you will sign the plea paperwork and return to enter the plea before the judge at 10. If you have chosen a blood test, it is possible the blood-alcohol content results are not yet in; therefore, the case will be continued until the judge arrives. Since it is your first appearance, you also will have the option to ask for a continuance in order to request discovery (all the information in the prosecutor’s file). It may be a wise decision to review the evidence the prosecution has against you and consult with an attorney in order to make a more informed decision as to how you want to proceed.

The results of your blood or breath test will determine whether you go to jail, how much useful public service you must complete and other terms of probation. A number of a .05 to a .199 will land you a minimum of between two and five days in jail. However, the judge may suspend this jail sentence if you successfully complete your terms of probation.

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If the number is higher than .2, there is a 10-day mandatory jail sentence that cannot be suspended, even if it is your first offense. In Pitkin County, jail can be served in one of three ways, the first two being alternative sentencing measures.

First is day reporting; this is where you go to the jail in the morning and blow into a portable breath-testing device. If you blow all .000, then you are free to go, and that counts as one day of jail.

Second is work release; this is where you sleep at the jail and are released during the day so that you can go to your job and then return to the jail at night.

Third is straight jail, where you live there 24/7. But wait — they do have yoga on Fridays!

For the repeat offender who has a third or greater alcohol-related offense in a lifetime, there is a mandatory 60 days jail of which there is no good time given and no alternative sentencing measure. If it is your second offense within five years, then you face a mandatory 10 days’ jail with no good time or alternative sentence. If it is your second offense and your last alcohol-related driving offense was outside of five years, you still face a mandatory 10 days’ jail, but alternative sentencing measures are allowed.

If you happen to plead to a driving-while-ability-impaired, first offense, you will be put on a period of probation for up to 24 months, do a minimum of 24 hours useful public service, get an alcohol evaluation and enroll in the recommended treatment and pay a fine of up to $500. For a DUI, first offense, you must complete a minimum of 48 hours of useful public service, alcohol evaluation and treatment and as many as two years probation along with a fine of up to $500. As you get in to the multiple offense range, you face mandatory jail sentences, and the length of probation, amount of public service and term of probation increase as well.

Finally, there are some questions you may want ask yourself before accepting a plea on your first appearance. Alcohol-related driving cases are some of the most complex to be prosecuted. There are many facets to these types of cases, such as the reason for the stop, probable cause, constitutional issues, roadside tests, express consent, Intoxilyzers and blood tests among other matters. It is these complex issues where mistakes may and usually are made by law enforcement and agencies conducting laboratory tests. This is where an attorney can be of help to your case and analyze these complex legal issues that may secure an outright dismissal of your case, a disposition that eventually can lead to a dismissal of the charges or an offer to a lesser charge.

Next month, I will delve into the topic of domestic violence.

Richard Nedlin is a former prosecutor who practices defense law in Aspen. His column runs monthly in The Aspen Times.