How Judges Decide on Sentences in DUI Convictions

How Judges Decide on Sentences in DUI Convictions

When it comes to sentencing in a DUI conviction case, there are minimums and maximums that judges are constrained to. Dillon and Jonathan talk about the Smith vehicular homicide case and how the sentencing decision was reached.


Episode Transcript

Dillon
Alright this week, a case that we've been following for some time here on the Legal Docket and in the news as well. It was back in the news, a local man who had been convicted by a jury of vehicular homicide was sentenced. And he received a sentence — well, our guest Jonathan Rands is with us. And he was very involved in this case, local DUI attorney. The sentence was what, six and a half years or something like that?

Jonathan
78 months.

Dillon
That Brian Smith received in this case. Talk about how that works, because even getting from that point of the conviction—that was the last time we talked about it when the jury made their decision on that—until now when he has a specific prison sentence. There's a lot of technicalities that had to be moved through there.

Jonathan
Yes and no. So this is a, essentially a felony DUI conviction for intents and purposes and those take the shape of vehicular homicide or vehicular assault or either of those convictions pursuant to facts that would support either prong by reckless or disregard to safety of others or being over the 0.08. And what I've done there is just broken down two statutes and there's a variety of ways that a person can be found guilty of them. And all together we'd call that felony DUI stuff or felony DUI sentencing. 

In every DUI case, whether it's a misdemeanor or felony, there's essentially a mandatory minimum. And when we talk about DUIs, generally on this show when we talk about mandatory minimums, I usually preface it with first offense under 0.08 / over 0.08 because it's those facts which generate the mandatory sentencing scheme. 

So in the state of Washington as far as DUI misdemeanors go, there is a very set scheme. And that set scheme is based upon whether the person's been convicted in the last seven years of a DUI or a DUI arrest which led to a lesser charge, and what the breath test result is or the blood test result is in that particular case. And in misdemeanor land, we're dealing with a max sentence of only one year and a maximum fine of up to $5,000. 

In felony land, we're dealing with sentences up to maximums of 10-15 years at the most at this particular point. 

Dillon
We've talked a lot in the news them trying to move that felony threshold farther and farther back.

Jonathan
Correct. And in felony land, there's something called the SRA guidelines or the sentencing reformat. And that came about I believe in the — correct me if I'm wrong; I don't do a lot of felony work so I don't have it on the tip of my tongue like I do on the other stuff — but it was in the '80s some time, where sentencing was purely discretional. Judges had discretion to do within minimums and maximums, but there was an organization that got together and said things are just too willy wonky. We've got somebody over here in Eastern Washington and same conviction over here in Southern Washington and they're all different, getting different stuff. 

So they came up with guidelines and they started ranking seriousness levels. And so you have a rank of seriousness, which actually sets you up for what the minimum has to be. And then within that minimum, there's a scoring mechanism where you look at whether the person has a history or not and they generate a score.

So a score of zero puts you at the very low end, but that low end still has a range. And every score gives you a new range. So in Mr. Smith's case — zero criminal history — the rank of his charge was considered a violent felony and that means in this particular case, the very very lowest sentence would be 78 months. But the range for him was 78 months to 102 months. So the judge has discretion within that range. But as he spent a significant amount of time prior to announcing the sentence, he has discretion and he has some ideals, I think is the wrong word, or ideas or goals that need to be analyzed in order to determine what's the appropriate number within that range.

Now in DUI misdemeanors, again we're dealing with anywhere from zero up to a year, and after you've got two priors within a seven year period, the sentencing grid maxes out. And it maxes out at 150 days, which is roughly half a year, but then it's followed by some electronic home monitoring. But the most you can do in that scenario is — or the minimum you have to in third offense DUI misdemeanor scenario is 150 days followed by 150 days of electronic monitoring. But a judge on any offense, because it's a gross misdemeanor, can do whatever the judge wants from zero up to a year, and $0 to $5,000 fines, or $941 - $5000 fine.

So it's not too different in felony land. The difference is is where that mandatory minimum starts, obviously. And that's really the difference between the felony and the misdemeanor is the minimum that matters is drastically different. I mean 78 months is 6.5 years. 102 months is 8.5 years. And generally speaking, the judge has all the discretion to be right in the middle of all that. And sometimes you'll structure and actual plea bargain where the parties agree and present to the judge, the person is this range, but we've agreed we're not going to argue about it, this is what should happen. 

Usually, at the end of a trial, it's very rare that we have an agreed sentence simply because both parties have invested a lot, have different perspectives on what they think is appropriate and we did not have an agreed sentencing range in this particular case. As that was obvious from the reporting that we had. The prosecution was asking for the maximum and they justified why they wanted the maximum, within that range, by the way. 

And we argued or asked for 78 months, which was the absolute minimum. And as far as arguing for that, or as far as that sentence goes, I think off the air you asked me if that surprised me. And the answer to that is, it was the best that we could absolutely hope for going into it because of the drastic difference between the two of them. 

The sentence, I think, was really— if you were present or if you had the opportunity to read or watch the entire recording of it — I know the local newspaper was there and recorded everything, but ultimately only snippets were done — but Judge Snyder spent an extraordinary amount of time talking about how much time and energy he spent thinking about this case between the end of the trial and here. And I knew that. And I knew what had been filed on Brian's behalf by members of the community. And so as far as a sentencing argument goes, or urging, there wasn't a lot that I had to do. I just really tried to get out of our own way in telling the judge what we thought was appropriate. And that is part of knowing your audience and knowing the sentencing proclivities or the point of view of whoever's doing the sentencing.

And so, yeah, I was happy. I mean, it's what we were looking for. But the bigger piece of this was whether we would be granted the opportunity for Mr. Smith to not be in prison while he pursued an appeal, which we think is likely going to be successful in terms of the issues that were raised or raised their heads as the case unfolded. Whether it was a motions hearing, which dictated which kind of evidence is admissible or not admissible and whether things that happened in the trial or objected to in the trial were appropriate or not appropriate. Everything that everybody said, whether it was the Schuyleman family or members from the Smith community, everything that everybody said, whether they knew it or not, were sort of supporting our reasons for the stay as well. They did a great job of articulating why the low end was good as well. 

Dillon
I want to talk a little more about the background, of course, I mean we're talking about the victim's family and the accused family and how we got to this point. And then also this potential what could happen while Mr. Smith is waiting on appeal. But we do have to take a quick time out. Jonathan Rands, local DUI attorney in-studio this morning. His practice is in Fairhaven, (360) 306-8136 is the phone number there. The website to reach him and to read about what he does, to get his background and some good advice, even just information about these kinds of cases and DUI defense in general, go to jrandslaw.com; really great website. Stay with us; we've got more to come on this straight ahead here on the Legal Docket.

-- Ad break -- 

Dillon
Just as far as background, the case that we've been talking about this half hour on the Legal Docket goes back to, what was it, 2014. Is that right, when this happened? There was a crash. December 2014. Awful, awful situation out in Everson, where a man driving a car turned in front of a motorcycle that he says he didn't see. The motorcycle hit his car and the man on the motorcycle ended up dying from his injuries in this awful crash. Now the question, years later, who was to blame in that? Was this guy driving the car under the influence as law enforcement had said at that time when they responded to all of this? This is the Brian Smith case that we had talked about. And our guest this half hour, Jonathan Rands was involved in that case and was able to give us kind of a full — we did a, if someone's curious they can find it in the podcasts on the Legal Docket — we did a whole show basically about how this whole case went, the jury trial and all of that.

Related Podcast: The Facts of the Recent Vehicular Homicide Trial in Whatcom County

Jonathan
We actually did a preview as well where I was talking about just jury trials in general. I actually had people come up to me and say they liked my explanation of controlled chaos as far as trial descriptions go. But yeah, I mean it's been a fairly, for lack of a better word, a popular story from start to finish when anything significant had happened. And here we are at this particular point like you said years later.

Related Podcast: The Controlled Chaos that is a Court Trial

Dillon
The jury decided amongst themselves to convict Mr. Smith. So then the next question was, what was the sentence that he would receive. And that's what we're talking about this morning. What is that process in a variety of scenarios, whether it's this one or other types of DUI convictions? How does the court, how does the judge decide how long someone is going to end up staying behind bars? And other punishments as well, they're going to deal with in the wake of something like this. So we've talked about different levels, basically, to classify how severe the sentencing might be. Right? Is that a way to sum that up?

Jonathan
Yeah, I think that's a good summary. What do you need me for?

Dillon
I tried.

Jonathan
[laughing]

Dillon
I try. I'm trying to understand because this is complex. I like how when we started the last segment, I said well there's a whole bunch of ins and outs basically, I don't remember my exact words, but it's not that complicated.

Jonathan
[laughing]

Dillon
Yeah, well, maybe to you. [laughing]. To me, my head would be spinning after the word go. But talk more about how this works. And I did just want to, like I said before we took the break there, to come back and explain a little bit of the background of what led to this point in this case that we're talking about. 

Jonathan
Well, it's not that complicated simply because a lot of things are set by law. Judges have an extraordinary power, but I think what a lot of people don't always recognize as they're not involved in the system, is that there are limits on it. In any DUI case, there's a mandatory minimum, and there's also a maximum that the judge can't do anything less, can't do anything more. And how the decision to implement or impose punishment is where the discretion gets exercised. And it doesn't really matter whether it's is in misdemeanor land or felony land. 

Sentencing is a weird thing, especially if it's not agreed because the judge's position and goal is to meet various objectives, as we heard Judge Snyder talk about. A judge's decision on a sentence when it's agreed is much less difficult because generally, especially if it's not a trial. If it's a case that's on the general calendar, there's a plea bargain struck, and there's an agreed recommendation, judges generally aren't as familiar with the case. Judges will frequently just trust the attorneys that they've worked out an agreement. They feel that the agreement A) is fair in terms of both sides as far as what the crime is if there's a reduction. More importantly, they will frequently say, well, it's clear you guys have thought about this, and we generally try and make it clear that we have thought about it in terms of the types of punishment that is being asked for. 

And in misdemeanor land, however, there's very little of that that goes on because of the mandatory minimums that are in place. Meaning we can have agreements on a second offense and the minimum on that would be 30 days. And sometimes we can agree that the mandatory minimums are sufficient. Sometimes we can disagree on the mandatory minimums being sufficient. Sometimes the State will ask for more than the mandatory minimums. And we'll structure a deal where — it doesn't happen very often because any time that you go in and plead guilty as charged, that's kind of an indication that nothing's agreed upon. There hasn't been any benefit bestowed by a reduction in charge that sort of forces the agreement. Meaning sometimes we reach a conclusion where both parties agree there's a significant amount of risk and we'll agree on a recommended sentence and we have to agree on it if we're going to get the benefit of the bargain in terms of the reduction. 

At the conclusion of a trial, or in a situation where a person is pleading guilty as charged, there can be a lot of disagreement. And then that's where it can become difficult for a judge to decide where to go. Sometimes I think it's as simple as a judge just listening to either side and splitting the difference. Sometimes a judge will look through the file or will look through a person's history because all bets are off at sentencing. Not only is there a mandatory sentence, but everything above that — because you can get into a situation where you think that your client is deserving of a minimum sentence and the prosecution points out all the other reasons why not that aren't even related to this case. And things such as looking at the person's history, have they been in and out of court a lot, is there a history of those types of cases. A bench warrant, meaning that the person isn't following court orders, or isn't necessarily taking things seriously or taking responsibility. And those are the things judges will look for. 

At this point in the case, has the person undergone (in DUI cases) a drug and alcohol evaluation. Has that evaluation been followed or been started? Pretty easy to comply with an evaluation that shows that you don't have any significant problems. But if you have an evaluation on a second or third offense and you haven't taken the time to do an evaluation, or you've got an evaluation and you started treatment or abandoned treatment. Those are the types of things judges are going to want to hear about. 

And so how we come up with a decision is really, I think, it's experience. It takes a long time in order to really understand what matters. In this particular case that we're talking about, the life that he led thus far with the exception of that one moment in time, I think was a great contributor to the judge's decision to impose what he did impose. And I say that with some gratitude, but fully recognizing it's six and a half years. And six and a half years in the scheme of things doesn't seem like it's a lot. Ten in a decade, six and a half years is kind of like it's a better part of a decade, but I think about it in terms, in this particular case, kids' age. You have a two-year-old. Six and a half years later you're out and that two-year-old is eight and a half. You're a new father and you're going to see that between those years, that is significant.

Dillon
I can't even imagine.

Jonathan
That is significant in everybody's life. And so time is super important. And that is why it seemed like a victory in terms of having the judge impose the low end. But also like I had alluded to, the decision for the judge to issue the stay pending certain conditions — there's still very strict rules that have to be followed and it's not as if, yes, he's not in prison, but at the same time, he's not free. He still has this hanging just like it's been pending for the last two and a half years. He still has rules that the order requires him to follow. And more importantly, there's a fairly giant sum of money out there to ensure compliance. And if there is no compliance, then that money goes away. Very similar to conditions of release when a person's charged with a felony that they do those same kinds of conditions and those large fees. But that's because you want to ensure compliance. 

But again a large part of it was who he was, and the other part of that, the judge even specifically stated, was that the only way that he could justify not allowing him to be free during the appeal, was the undo hardship or harm or damage to the aggrieved victims in this particular case. And he indicated that because of their forgiving nature that a delay a little bit longer for the appeal process the judge specifically stated that he didn't think that there would be undue trauma to them, I think were the words he used.

I mean, the community as a whole, I think, had a very big part in this, whether it's the community from Mr. Smith's side or whether it's the community from the Schuyleman side.

Dillon
The victim's family.

Jonathan
Yeah, the victim's family. So all things considered, it's a terrible situation. You can't even talk about this in terms of wins or victories or anything like that because it's still going. And even if this part of it was over, even if it wasn't an appeal, there's a terrible hole in somebody's family. And as Mr. Smith's wife said at sentencing, even taking him away has a hole in another family for six and a half years. It really is a tragic situation all the way around. But it always brings me back to the best advice in terms of avoiding this or even a misdemeanor charge. The best defense is to not drink and drive.

Dillon
Just so there's not even a question like there was in this case. Was is or wasn't it, and could it be proved or couldn't it be? Just imagine if you took that away. Even if it wasn't a factor. I just can't imagine having gone through all of this.

Local DUI attorney Jonathan Rands, thank you for being — Just on that point, though, and I know we're basically out of time here. A lot of people think that. Well, I've only had one, or I'm ok. Ok, maybe, but do you want that shadow hanging over you if anything were to happen. Anything. Have you thought about that? Whether you could argue that you were justified in what you were doing or not, you have to ask is it worth it?

Jonathan
I mean you can take this scenario factually one-step more mind-boggling in terms of let's say for instance the facts are slightly different, but everything else was still the same in terms of Mr. Smith didn't turn left, but he stopped quickly and a motorcycle is behind him, ran into him, and died from the injuries even though he struck him from the rear. The very fact that he's on the roadway and that accident happened opens up the same question that we had here. Again, it seems kind of ridiculous to talk about it that way, but if that were the facts, we would still have been involved in this case. It still would have been prosecuted that way even though it wouldn't have been "the stopping driver's fault." It would have been a situation where the rear driver is always responsible. But not in these types of settings.

Dillon
Jonathan Rands, local DUI defense attorney here with us on the Legal Docket this half hour. We appreciate your time and your expertise on this stuff. As I mentioned earlier, your practice is in Fairhaven, so the phone number to reach Jonathan office is (360) 306-8136. And the website again is jrandslaw.com. His last name is Rands, check it out. Jonathan, have a great weekend.

Jonathan
You too, thank you.


Call now for your free consultation (360) 306-8136

“Being charged with a DUI is scary and often makes you feel alone against the unknown. Jonathan made himself available after hours to have a 'consultation' of sorts, to meet with me and hear my story, at no cost or commitment.”
Amy
A DUI Client, via Avvo