At the sentencing state, the defendant's guilt will have been determined or admitted. This is surprisingly, a prime opportunity for the DUI lawyer to prepare the court regarding the requirement of justice. Intimate familiarity with the penalties authorized or mandated by statute as well as the purposes of various sanctions is absolutely necessary for effective representation at sentencing.
Ultimately, the purpose of DUI statues is to reduce the number of DUI drunk driving incidents, thereby increasing highway safety and reducing traffic fatalities. Sanctions against convicted DUI drivers attempt to promote this purpose through specific and general deterrence, as well as rehabilitation. Sentences may include incarceration and/or fines, community service, restitution, suspension or revocation of the driver's license and rehabilitation programs.
The sanctions imposed in any particular case will depend upon a number of factors, including statutory mandates, the degree of discretion left to the judge, formal or informal sentencing guidelines, the judge’s individual agenda, the scope of the offense, whether the defendant has any past convictions and the judge's perception about whether the defendant is likely to commit further transgressions or is an ideal subject for rehabilitation.
DUI punishment has become alarmingly harsher over the past decade and promises only to become more severe. Here is a short discussion on each:
A defendant can expect to pay a fine of a few hundred dollars up to several thousand dollars. The financial impact of a DUI conviction eventually extends beyond the courtroom. The real financial burden may include higher insurance premiums, loss of employment and even loss of family or custody. The real financial cost thus cannot be calculated portraying excessive fines as unnecessarily disproportionate to the offense.
However, a further consideration in this context is a comparison between the amount of the fine and the financial resources of the defendant. Courts have ruled that since the defendant did not have the resources (or a reasonably near expectancy of them) to pay a $350 fine, that the fine was excessive and therefore, constitutionally prohibited.
Furthermore, the Supreme Court has ruled that the jailing of an indigent defendant solely because he or she is too poor to pay a fine violates equal protection where the offense would otherwise not be punishable by incarceration. Sentences of fine or imprisonment are thus not only challengeable on the grounds of abuse of discretion, but are subject to constitutional limitations as well.
- Incarceration in County or State Jail System
A convicted DUI defendant may spend as many as one day to several months in prison. The sentence may be enhanced if the defendant refused to take the test, engaged in altercation with arresting officer or had a prior DUI conviction. Claims that imprisonment imposed on a DUI offender would constitute cruel and unusual punishment because of the defendant's alcoholism have been rejected. Even an argument that a ten-year mandatory minimum sentence at hard labor for fourth offense drinking and driving was cruel and unusual, was rejected.
If the sentencing guidelines provide for an enhanced DUI sentence in the event a victim of an accident involving the criminal defendant sustained serious bodily injury, the enhanced sentence will stand only if the prosecution establishes that the defendant's DUI conduct was a direct and substantial cause of the victim's serious bodily injury. A recent trend in sentencing is to order persons convicted of a DUI offense to serve at least part of their sentence confined to their homes.
The criminal justice system has gradually shifted its focus from filling prisons to a more compassionate approach, namely rehabilitation. Thus, conditional probation has become an increasingly important aspect of sentencing.
In general, the power to suspend sentence and impose probation is statutorily created, and must, therefore, be exercised in accordance with the statute authorizing it. Depending upon the restrictive nature, some statutes permit the court sole discretion in setting certain conditions of probation, while others specifically restrict the judge to certain conditions.
The most restrictive statutes may require imposition of certain conditions for certain offenses, require defendants to complete a minimum sentence before being eligible for probation or simply prohibit granting probation entirely for offenses of a certain type or those which prescribe punishment of a certain severity.
When probation is granted, some statutes explicitly authorize the imposition of certain conditions such as restitution, fines, recoupment and incarceration. These conditions have been upheld as designed to deter further offenses and thereby contribute to the defendant's rehabilitation. Recoupment statutes have withstood arguments that they may operate to deter defendants from exercising their right to counsel on account they are based on the ability of the defendant to pay. However, where revocation of probation occurs and the defendant is indigent or has made a good faith effort to pay fines or the costs of rehabilitation programs, courts have held revocation of the probation violates equal protection.
In addition to the explicitly authorized conditions of probation, formulation and imposition of other conditions is often left to the sound discretion of the trial court. These conditions are generally limited only by the requirement that they be reasonably related to the defendant's rehabilitation. Accordingly, trial courts should be viewed as having wide discretion in imposing these conditions.
Because the point of probation is to foster the rehabilitation of the offender, conditions that are neither reasonably related to that purpose nor necessary to the protection of public safety have been overruled as an abuse of sentencing discretion. Thus, restrictions drawn so broadly as to unnecessarily restrict the defendant's otherwise lawful activities have been held impermissible, as have conditions which have required that the defendant forfeit all assets and work full time for charity for three years, or the requirement that the defendant live and work on a specified farm during the term of probation.
Other conditions that have been held unlawful include sentencing a defendant to a period of probation that is greater than the maximum jail term for the offense or conditions that may later lead to enhancement of the sentence.
- Attending DUI Classes or AA Meetings
As rehabilitation has emerged as a preferred primary goal, the possibility of alcohol rehabilitation or treatment should absolutely be considered before sentencing for at least two reasons: first, the client may need it; second, the sentencing judge will probably look more favorably upon a defendant whose drinking problem has been evaluated, with measures taken to control it if necessary.
If rehabilitation or treatment is allowed to be determined after sentencing, the defendant will be forced to accept the court’s recommendation, including frequency and the facility. Whereas, if the client with or without the lawyer’s assistance, seeks treatment, a better suited treatment program may be established for the client’s individual personal and work-related needs, increasing the likelihood of successful treatment as well as leniency in sentencing.
- Community Service
Community service will generally be upheld as a condition of probation or suspension of sentence unless it is manifestly unreasonable. In addition to using community service as a condition for probation, state statutes may allow for the performance of public work in lieu of restitution or mandatory confinement. Statutes that permit community service to be ordered require that the court set a specific number of hours of service to be performed by the offender and also provide an assignment to an appropriate agency. The DUI lawyer must be aware of local provisions on community service and, where permitted, suggest it as an alternative to incarceration or as a condition of probation.
- Home Monitoring Programs
One of the softer sentences, home monitoring programs are designed to be accommodating and versatile enough for a variety of offenders. Although these programs are deemed a softer sentence, they are a sentence nonetheless. One system, developed by Mitsubishi® is specially adapted to inhibit a DUI offender while also detaining the offender in his/her house. Included with their system is a hand held breath analyzer, which is utilized much in the same fashion as that used by the ignition interlock devices. The device measures the breath for alcohol and transmits the results to the appropriate probation or correctional officer.
In addition to monitoring a defendant's alcohol intake, the systems can be used more generally to merely confine the DUI offender to his/her house, effectively incarcerating him/her without the added expense of incarcerating them in a jail or prison. Despite the obvious convenience and frugality of these systems, many states still refuse to prescribe their use where there is a mandated jail term.
- Suspension, Revocation or Restriction of Drivers License
The most common result of DUI conviction is the suspension of drivers license. Statutory chapters set guidelines for granting of drivers licenses generally also provide the circumstances under which they can be revoked. With such statues in place, license revocations have primarily become a simple state administrative agency matter, occurring automatically upon conviction of a DUI offense.
In fact, where the statute does not specifically provide allowances for the court to grant a restricted license for travel to work or alcohol treatments, the court generally has no inherent authority to stay revocation, impose a lesser revocation period or order the Secretary of State to issue a judicial driving permit. Even where courts are allowed the authority to grant restricted licenses, these are generally limited to cases where "undue hardship" would result from failure to issue such a restricted driving permit. In cases where the Secretary of State refuses to issue defendants judicial driving permits ordered by the trial court, the order is often upheld on appeal, while due process challenges on mandatory revocations often fail.
In addition to mandatory license revocation, state statutes are increasingly giving courts the discretionary power to suspend the DUI offender’s vehicle registration, or even, in some circumstances, to impound the convicted DUI offender's vehicle. Where allowed, actual impoundment rarely occurs and when it does, is of relatively short duration.
Statues also regularly authorize restitution as a condition of probation. Courts have held that since restitution is not a fine, its amount is not limited by the statutory maximum fine; that since it is not a debt, it’s not dischargeable in bankruptcy and that, although restitution is not in the nature of civil damages, restitution payments already made might be off-set against a subsequent award of civil damages for the same act.
Varying ideas of the restitution’s nature and purpose have resulted in differing approaches in determining the amount of money to be paid. Recognizing the subjective nature of this determination process, most courts provide at least be reasonable support in the record for the trial judge's determination. Some states, fearing a weakening of the rehabilitative effect of restitution if the amount ordered appears arbitrary, require that the amount assessed be undisputed, liquidated or easily measurable. Others dispense with this requirement.
Finally, even where the trial court has failed to make an exact computation of damages, a restitution order was upheld where the appellate court felt that this omission worked to the defendant's favor, in that actual damages were thought to be much greater than the sum ordered as restitution. Courts also vary as to the types of damages for which restitution may be ordered; although there is general agreement that the defendant's criminal act must have caused the loss. Out-of-pocket losses such as medical expenses, pain and suffering, loss of wages and funeral expenses have all been upheld.
Because restitution is based on the actual financial loss of the victim, the court must first determine the total amount of the victim's actual, fiscal damages and then subtract from that amount any proceeds attributable to those damages received by the victim from the settlement of the civil claim. The defendant may be required to pay interest on the restitution award if it is found that the victim was actually deprived of the use of any money as the result of the defendant's criminal offense. The question of whether restitution may be ordered for the support of the deceased victim’s dependents has been answered in the negative by those states, which limit restitution awards to the direct victim of the act.
In contrast, other states define "victim" to include any person who has suffered loss as the result of criminally injurious conduct. These states have allowed restitution payments toward the support of dependents and to the parents of a deceased victim. One court even upheld an order of payment to the insurance company that reimbursed the injured victim. For the most part, courts are reluctant to order restitution to a third party without explicit authorization by statute. For example, a court's order to make restitution to the athletic fund of the college at which the decedents had been athletes was not authorized by statute that permitted restitution only to the "victim or aggrieved party."
Regardless of how the amount of restitution is determined and to whom it is paid, most states require that restitution orders be limited in accordance with the defendant's ability to pay. State statute may require such limitations, but even where not required most courts recognize that conditions impossible to fulfill would frustrate the rehabilitative purpose of restitution. As such, these courts require an inquiry into the defendant's ability to pay before restitution is imposed. However, at least one court has held that a restitution order imposed on an indigent defendant was not an unreasonable probation condition since the defendant's finances could improve during the probationary period and probation could not be revoked solely for nonpayment.
- Installation of Ignition Interlock Devices
Some states permit municipal and district court judges to impose additional sanctions on alcohol DUI offenders, which may include ordering some offenders to install an ignition interlock breath alcohol device on his/her cars. These devices require the driver to blow into a breath analyzer and unless the breath has a low (about .02%) level of alcohol, the car wouldn’t start.
- Vehicle Impoundment
Some state laws require the DUI arrestee’s vehicle to be impounded. In limited cases, the vehicle may even be forfeited to the state, which is usually sold at a public auto auction with proceeds going to the state. Impoundment is said to be among the most effective punishments to encourage the DUI defendant from committing similar transgressions.
Impounding the offender's vehicle is used to prevent him/her from committing another DUI offense. While this can be the most incapacitating of all sanctions, it can also be misleading in its effectiveness. It obviously prevents the DUI offender from committing the offense in his/her own vehicle, but it does nothing to prevent him/her from committing another DUI act in a borrowed vehicle.
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