This picture has nothing to do with this post.

There are sometimes in DUI cases where a defense attorney must face two or more DUI prosecutors.

If the judge ignores his or her role as referree, and decides that he or she misses being a prosecutor (because most judges are former prosecutors), as a defense attorney you may be facing two prosecutors. For example:  Your client is a first offender DUI client.  You bargain with the actual state’s attorney for a rescission of the statutory summary suspension in exchange for a guilty plea and supervision (no conviction) on the DUI.  This way your client can avoid the expense of getting a BAIID Device installed in his car (and also save the $250 license reinstatement fee)  This represents a total savings of the cost of the BAIID Device (about $750) plus $250 reinstatement fee, or about a $1,000.  The actual state’s attorney may like this deal because his case may have a number of technical problems that may or may not cause him to lose at trial.  So this negotiation can be a win-win.  However, your judge (who misses being a prosecutor) may decide to reject the negotiation because he or she feels that they would have won the case at trial (doesn’t understand the weaknesses), and therefore you have to negotiate the case with the judge also.  So in effect you have two prosecutors on the case.

In some circumstances you could have three prosecutors on the case.  Imagine the scenario featured above, but in this case you as a defense attorney have negotiated the case with a municipal attorney.  Also in this case imagine that the county state’s attorney is one of those “tough on DUI” types.  He got elected because he felt that the “tough on DUI” slogan that he used for his campaign was why he is in office and he likes his job so he decides to “help” municipal attorneys by threatening to pull their prosecuting authority if they do DUI negotiations that he doesn’t like.  So as a defense attorney you end up negotiating with the municipal prosecutor, the state’s attorney and then the judge.

But don’t lose heart.  This all works out very well for you because when these guys don’t want to do the deal you end up taking the case to trial and because there essentially wasn’t a deal that you could recommend to your client, it’s like trying a case with no downside.  You weren’t going to take the “tough on DUI” deal, so if you lose at trial it the prosecutor’s fault.  And, as luck would have it you will win about 95% of these case because as it turns out there was a reason that the first prosecutor should have cut a deal with you.

Welcome to the wacky world of “tough on DUI” prosecution.

Law Dude, Ray Flavin, represents drivers that have been charged with DUI in McHenry County Illinois. His law offices are located across the street from the McHenry County Courthouse in Woodstock.