Interviewer: Is it a mistake to throw yourself at the mercy of the court and plead guilty?
Brian: People are going to have the book thrown at them if they decide to go to trial, take a plea agreement or plead guilty to the court. It is not a matter of you plead guilty to the court and you get one day; or you go to trial and you get six months. That is really not the way the system works.
No matter what happens- if they go to trial, if they lose, or if a person pleads guilty to the court, they are still looking at the same one day to six months. If you decide you want to utilize your constitutional right to a jury trial in a DUI case, judges are not known to punish you for doing that. I have yet to see that happen in any of the courts I have been to, in and around Maricopa County.
There are some very good reasons to go to trial. Usually my recommendation is go to trial if there is little risk involved in doing so. If I think the plea agreement I am able to get for my client would be very similar to the sentence I would be able to get if we went to trial and lost, then my recommendation normally is go to trial.
There are a lot of arguments that can be made. It is not simply a matter of, “Well, I was drinking, and I was driving. Therefore, I am guilty.” That is really not what the client needs to consider.
There are so many ways of fighting cases. Different attorneys may come up with different ideas. There are many cases where other attorneys representing clients just say, “Plead guilty. You’ve got nothing. You cannot win.”
Then I look at the case. I think differently. I think outside the box. I will get the case dismissed, or I will get all the evidence suppressed. I am able to get a lot of results just in the way I think. I am able to be creative and do things that even the prosecutors have not thought of. They really do not know how to respond to it.
There are many reasons to want to go to trial. It definitely is not for everyone. Sometimes a plea deal is the best option if there is a huge risk in going to trial, or there is a strong likelihood someone could go to trial and be convicted. So there is really no reason to keep fighting.
Interviewer: Is there a penalty for going to trial?
Brian: There is not supposed to be a penalty. Now, there may be some judges who will give a couple extra days in jail than they otherwise would have done. However, there is not supposed to be a penalty.
As an attorney, my job is to provide my knowledge, based on the facts of the case. I let my clients know what their options are and what my professional opinion is. It is always up to the client to decide if they want to take the plea deal offered, or continue fighting the case and ultimately go to trial.
Interviewer: To reiterate, if someone pleads guilty, will they be treated just based on the merits of the case?
Brian: It is very likely they would be treated the same. If someone goes to trial and loses, or decides to plead guilty to the courts, there is an opportunity to talk to the judge and provide what is called “mitigating circumstances.” This is an explanation why a person deserves the minimum sentence, or a lesser sentence.
The benefit to pleading guilty is often something can be arranged, such as a guaranteed minimum sentence or extra charges being dismissed. Very rarely do I agree with or recommend someone go in front of the judge and just say, “I am guilty. Just punish me.”
If it is by way of plea agreement, that is fine. If it is by way of trial, that is fine. There are certain times when it is most beneficial to go in front of the judge and just say, “I plead guilty.” However, it is very rare.
Interviewer: Is there any benefit to attempting to defend yourself or hiring a public defender, rather than hiring a private attorney who specializes in DUI?
Brian: In Arizona we cannot say we specialize in DUI. The Arizona State Bar will not allow it. Under the Arizona United States Constitution, a person is able to represent themselves. However, it is strongly recommended that someone not choose that route.
There is a reason people go to law school. There is a reason people do these cases, do the research, and read cases on DUI and criminal law. There is a reason people devote their lives to representing people in the legal process.
While a person can represent themselves, number one, it is usually not a good idea because they are not going to be prepared. A judge does not give a lot of leeway to a layman, someone who just does not know the rules.
I have seen people go in front of the court, and it brings me to the second reason why not to do it. Someone always has a lot of confidence in themselves, until they actually have to get up in front of the judge and jurors.
I have seen a couple of cases where someone is adamant they have a good case. They are very outspoken. Then once you put them in front of a jury and judge, they sit at the desk quietly.
They are too scared to get up and say anything. They lose the case because they do not have the confidence to really represent themselves, as they thought they did in their own head.
With regard to public defenders, I have told people all along, public defenders and private attorneys are all lawyers. They are all attorneys. They all went to law school. There is a belief out there that public defenders are law school dropouts or they went to bad law schools.
The only real difference between a public defender and a private attorney, on a basic level, is a public defender decides to work for the government and a private attorney decides to work for the private sector.
There can be very good public defenders. There can be very good private attorneys. There can be very bad private attorneys, and there can be very bad public defenders.
The main difference between a public defender and a private attorney is the amount of time they can devote to their clients. While a private attorney might have anywhere from one to maybe 20 clients, there is an incentive by private attorneys to do very well for clients.
The private attorney wants recommendations. They want referrals from the client. They want to show clients, “This is what you are paying your money for. This is how smart I am. This is what I can do for you.”
There is not that incentive with the public defender’s office. A public defender usually has about 30 to 40 clients. It is really just another file. They did not invite these people to hire them. These people were just put on their desk, and the public defender has absolutely no incentive to do well for that client.
If they plea out that person, if they go to trial and lose, if they go to trial and win, they are paid the exact same salary. There is really no benefit, except for maybe personal satisfaction.
That is why we have this system set up now. The public defender’s office is meant for indigents, and the court decides whether a person is considered indigent or not.
Interviewer: Is it easy to qualify for a public defender? Do you have to be so poor that you are unable to afford anyone?
Brian: Well, that is the theory. I mean that is what is supposed to be. There is a public defender’s office at every city court, as well as the county level. Different cities are more of a stickler than others.
Scottsdale does not want to give a public defender unless you truly are poor. Phoenix, on the other hand, has a pretty high threshold where they will allow someone to have a public defender. I have seen people pull in to the parking lot in their Corvette and go talk to their public defender. I have seen people who have huge bank accounts qualify for a public defender.
The main difference is time. A private attorney with my background and focus on DUIs for eight years, you are getting quality representation from me. You are getting my phone number that you can call and ask questions. You can text me. You can call me after hours. You are getting someone who knows what they are doing.
With a public defender, you are getting a random person; maybe good, maybe bad. They could have 20 years experience. They could be fresh out of law school. They may not really write motions. They may not really know how to research. They may be too scared to appear in front of the judge. They may be scared to go to trial.
They really have no incentive to fight for you. They need to push cases. They receive a case, and they need to do something about it. If they hold onto them too long, then they get in trouble. They are going to get another case coming down the pipe.
So there is an incentive to just push people along, to get them off the desk. Usually that means the public defender will push the plea agreement. It does not always happen.
However, there are some very good cases but the client does not know it. This is because the public defender who needs to get the case off their desk recommends the plea agreement, without really fully informing the person. Meanwhile, he knows there are good issues in the case and that he should advise them to fight it.
Interviewer: The driver’s license suspension portion of the DUI is not a criminal matter. Can a public defender even help you with that issue?
Brian: A public defender is simply there to represent you on the criminal aspect of whatever case you are charged with. Your license being suspended because you are suspected of driving under the influence is not part of the criminal matter. It is a civil action taken because you are suspected of DUI. That is not what the public defender is assigned to do.
A private attorney can represent someone on the criminal matter and the licensing issue. He can help with the administrative hearing. That is where it is determined whether the person truly is going to lose their license for being suspected of driving under the influence; or whether you can fight the motor vehicle division in an attempt to keep your license. Public defenders are there for a very specific reason.
Interviewer: Does that mean a public defender is like having half a lawyer because they cannot address your entire DUI case?
Brian: I will not say they are half a lawyer. They are there for a very specific purpose. They are not there to help you in a civil matter, if you want to sue someone for money. They are not there to help you with civil violations you may have incurred, such as this admin per se suspension of your license.
If someone were solely charged with a civil matter, such as civil speeding where there is no possibility of getting jail time, they are not entitled to a public defender. One of the requirements is there has to at least be the possibility someone will face jail time for them to be eligible for a public defender.
Sometimes, while it is possible that someone can face jail time, the prosecutor will basically say to the person, “Well, I am not seeking jail time. So you are not eligible for a public defender.”
All DUI cases are public defender eligible because all cases require at least one day in jail.