I hear all this talk of fighting, winning and being aggressive. That sounds great, but won’t I be punished for fighting my DUI?
No. That is something the courts are NOT allowed to do.
They can’t. It’s unconstitutional. “To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort. In a series of cases beginning with North Carolina v. Pearce and culminating in Bodenkircher v. Hayes, the Court has recognized this basic and itself uncontroversial principle. For while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right.” United States v. Goodwin.
Does it still happen? Yes. How do I stop it? I quote Goodwin and Lewallen and particularly Ryan v. Council on Judicial Performance to the judge. Why particularly Ryan? Because in Ryan a judge lost his robe for practicing ‘trial taxing’. In one matter, Ryan had told a defendant that if he plead pre-trial he would get a no jail offer. If he went to trial and was found guilty he would be sentenced to 30 days in jail for a first time DUI. The defendant went to trial, the judge sentenced him to 30 days in jail. The Council on Judicial Performance, the Judges who police other judges, said “No can do”.
I also make sure that the record shows that the only reason for the increased punishment is the defendant’s intent to go to trial.
When you insist on going to trial or refuse to settle on the prosecutors terms and s/he threatens to or does add charges, that’s prosecutorial vindictiveness. To avoid facing discipline for prosecutorial misconduct, “the prosecution must demonstrate that (1) the increase in charge was justified by some objective change in circumstances or in the state of the evidence which legitimately influenced the charging process and (2) that the new information could not reasonably have been discovered at the time the prosecution exercised its discretion to bring the original charge.” In re Bower.
Defendants should never allow increased punishment after a trial dissuade them from going to trial, as it is well settled that to punish a person for exercising a constitutional right is a due process violation of the most basic sort. Bordenkircher v. Hayes.