NC DWI Laws and Defense Lawyers

I’ve written elsewhere about the effect NC DWI laws – which in my view are poorly structured – have on different groups – prosecutors, judges – and on the court system in general.

My view is that the lack of a plea alternative in NC DWI laws binds the hands of prosecutors, puts judges in an awkward position with respect to their obligations to run an efficient courtroom, and prevents other kinds of cases – assaults and larcenies – from being as effectively prosecuted as they might ordinarily be handled.

I’m not saying that every DWI case should be pled. Quite the contrary. Some DWIs are “bad” involving either property damage or injury. If a prosecutor wants to prosecute those case in trial, that’s well within his or her right. But to require every case to be resolved without a plea is to bind the prosecutor’s hands. Similarly, some plea offers would not be acceptable because sometimes someone arrested for a DWI is not, in fact, guilty. In those cases, I would not recommend a DWI defendant take any kind of plea.

Let’s have a DWI trial in those cases!

As it stands there are a lot of needless trials in District Court involving DWIs. This is because prosecutors can’t dismiss or offer pleas. So they try a case they either they are surely going to lose or surely going to win. This waste time, money, and deprives or delays other kinds of defendants (or victims!) from their day in courts for non-DWI crimes.

One curious cultural artifact is that defense attorneys are sometimes viewed by prosecutors and judges as wasting the court’s time by demanding trials in cases where the facts are bad for their clients.

The implication is that the defense attorney should advise his client to plead guilty even when the punishment following a guilty plea will be exactly or almost exactly the same as the punishment following a trial.

As a defense attorney, I’m confused by this attitude.

Now, sometimes, when my client wants to resolve a matter quickly, or has some other thing going on in their life where a plea is worthwhile, even if nothing is being offered, I do plead my client guilty. That’s my client’s choice.

But frequently my client has hired me to defend them. And I advise the client that, given the facts of many DWIs, they are likely to get the same outcome after a trial or hearing as they would have following a plea.

“Why should I take a plea? What do I get if I take a plea?”

That’s the question my client has. And my answer is, you get basically nothing. The prosecutor wants to give up your constitutional right to a hearing or trial, and you get nothing in exchange for giving up that right.

I also advise my client that they’re unlikely to win.

But the truth of the matter, as any defense attorney knows, is that strange things happen in trial. Maybe the prosecutor forgets to establish an element of the crime. Maybe the testimony comes out differently than you thought it would. Maybe a witness fails to show for court. I’ve had prosecutors forget to establish the jurisdiction, for heaven’s sake, leading to an outright dismissal of the charge.

If nothing is being offered by way of a plea, why in the world would I as a defense attorney advise my client not to go to trial if that’s what the client wants. After all, something could happen at trial that undermines the State’s case.

A client does not pay me to simply plead them guilty. A client pays me to defend them, and where nothing is being offered, the only defense is probably a trial.

Also, I like trials. I mean, questioning an officer is fun. You learn stuff. You learn stuff about that officer that can be used in future trials, even if you lose. For instance, does that officer seem believable? Is the officer making stuff up?

You also learn about judges. Is the judge paying attention? What arguments does the judge like, or not like. These are all valuable insights that help me to better defend that client, and future clients.

Finally, there’s an attitude that somehow a defense attorney should be the one to bend or break in a system that doesn’t allow a prosecutor or judge to bend or break.

Why?

I’m not just a attorney. I’m a professional who was hired by someone, who has paid me good, hard-earned money to do my job. And my job is to defend that person.

If I were ever accused of a DWI, I’d want a lawyer who would go to trial if nothing reasonable were offered by way of a plea.

Why should I give any less to clients who hire me.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.