Guest Column: More discretion needed for first-time DUI offenders

“Jane” is the average DUI client who has walked through my doors for the last fourteen years of my practice. A few facts about Jane: aside from this tragic incident, Jane has no criminal history. She is a full time, gainfully employed tax paying individual who was drinking socially at an event such as a charity or a friend’s wedding. Unfortunately for Jane, she is not a toxicologist by trade, and did not know precisely how to measure her breath alcohol content before she chose to drive. She felt “fine.”

Jane also wasn’t driving poorly, but rather she was stopped for a blinker or for speeding. At the jail, she fully cooperated with law enforcement and politely took a breath test that registered a .11, three one-hundredths higher than the legal limit. She is now embarrassed, remorseful, and traumatized by this event, which may last her lifetime. Most of my clients, like Jane, will never be arrested for anything in their lifetime again.

Despite this typical case in point, each year, and sometimes even more frequently, our state legislature makes DUI laws tougher on not just repeat offenders and aggravated cases, but on Jane. In my lifetime, the laws have migrated from an old fashioned, more discretionary “maybe Jane deserves a break,” to a strict, sometimes draconian and fully mandatory minimum punishment requirement that judges cannot use any discretion to avoid, even in the most equitable of cases. In 2015, if Jane is convicted, she will be required to spend additional mandatory time in jail– at least another day but often more– face a lengthy mandatory driver’s license suspension, and she’s going to start her car for at least the next year with an apparatus known as an “ignition interlock device,” which is expensive, embarrassing and distracting. She will face thousands of dollars of attorney’s fees, over a thousand dollars of additional combined court fines and costs, a mandatory alcohol evaluation followed often by expensive alcohol treatment. She will be under the supervision of the court for five years. By law, Jane will never be able to remove this conviction from her record., unlike she could if she were charged with any other misdemeanor, gross misdemeanor, or many felony convictions.

Prosecutors are not very often concerned with who Jane is, what she does for a living, or how the night of her arrest and the post arrest process affect the very core of her moral, family and professional life. Rather, prosecutors are concerned about numbers– percentages of convictions, dollars, and the security of knowing that they did their best to put Jane away. Jane the statistic is almost always very different than Jane the person. And Jane the person will statistically likely never do this again.

Each year as the laws change only getting stricter, those “Janes” that walk into my office will face even greater hurdles that will serve to effectively punish them for the greater portion of their adult life. The legislature continues to take away any discretion in the way the court system handles DUI cases. And each year as this happens, we shift focus to the forest rather than properly on the trees.

This story was originally published October 24, 2015 at 5:45 PM with the headline "Guest Column: More discretion needed for first-time DUI offenders."