Road Law – May 2022

The Road Law column is usually all about traffic “infractions/misdemeanors,” according to Table 1 or 2 in section 383.51 of the Federal Motor Carrier Safety Regulations Handbook and the corresponding penalties. But, occasionally, we help clients with much more serious criminal issues.

Here’s a recent example of just such a case, and we hope this information will be helpful to you.

Q: I was arrested on a driving under the influence charge after I was involved in a crash. When I went to court on my initial appearance, the prosecutor changed the complaint from a first offense to a felony second offense. What’s going on?

A: Usually when charges are amended or enhanced, there is some factual basis that is being used for that increase in severity. Have you ever been charged or convicted of a DUI charge in the past?

Q: Yes, I had a DUI about 10 years ago, but nothing since then, and I completed everything I was supposed to do.

A: The key question in this case is what was the day you were convicted and sentenced for your first DUI? If you were convicted of a DUI “about 10 years ago,” we’ll need to review your prior court records to calculate the exact time period from the day you were convicted of your first DUI to the day you received your charge for your second DUI. The exact time period between your first DUI conviction and then receiving your second DUI charge is critical and, depending on your state law, could increase your second charge to a felony.

Q: Can I enter a plea of guilty and just be done with this case?

A: Yes, but assuming you’ve been charged with a felony DUI, you do not want to simply plead guilty to a felony charge. First of all, you don’t want to face the possibility of any jail time that may be associated with a conviction of a felony, and if you are not a prior felon you certainly don’t want to create a new, felony conviction record.

For example, barring any expungement opportunity, a felony conviction can affect your ability to remain employed and/or find employment. Further, you don’t want to compromise your right to vote or possess firearms, etc.

In your case, assuming you really don’t have a good defense, it would be far better to have your attorney try to have the felony charge amended back to a misdemeanor or try to negotiate a lengthy deferral for your original charge, which would usually require you to successfully complete additional programs to satisfy the prosecutor and the court that you will not be a repeat offender in the future.

Q: I had a handgun and a hunting rifle in my vehicle when I was stopped and given the DUI ticket and the cop took my guns. Do I get my guns back?

A: Well, if you simply plead guilty to felony charge then, no, you don’t get your guns back. But if you’re allowed to enter your plea of guilty to your original felony, then you’re placed on a deferral/probation for a period of time. If you successfully complete your deferral/probation requirements resulting in your original felony conviction being dismissed, then, yes, you’ll be able to get your guns back at that time. Also, the court might agree to release your guns to a third party to hold for you until you successfully complete your deferral/probation period. LL