The D.U.I. law sentencing law is composed of 6 "grids".The grid you will be sentenced under depends upon several factors: how many offenses you've had, your breath test result, or whether the breath test was considered a refusal.

No Downward Discretion in D.U.I. Sentencing

It is important to understand that if you are found guilty, the penalties for D.U.I. are "set in stone". D.U.I. penalties are non-discretionary at the lower end. In other words, if you plead guilty or are convicted of D.U.I., the judge has no discretion to impose a lesser penalty than those mandated by the legislature in the statute. The judge can go higher --up to one year in the county jail or a $5,000.00 fine, or both-- but has no authority to go lower.

In other kinds of criminal cases, the individual circumstances involved in the case may create a mitigating circumstance for sentencing. For example, if a person breaks into a building to seek shelter from the cold, that is likely to produce a largely different sentence that if a person breaks into a church for the purpose of stealing. Discretion has been 100% eliminated in D.U.I. law. The absolutely only way to avoid the mandatory minimums is to avoid a conviction and the only way to avoid a conviction is to be represented by the best lawyer your circumstances permit.

The 7-Year Provision

One of the most commonly misunderstood provisions of the D.U.I. statute is the language about a prior conviction "within 7 years". I often have a client contact me who says something like "I had a D.U.I., but it was 9 years ago, so I'm okay, right?" The best answer is "Maybe". In some jurisdictions the answer is"Probably". In other jurisdictions the answer is "No; you'll be treated as a repeat offender".

If your prior was within 7 years ago, the judge has no discretion: he must enhance your penalties. If your prior was more than 7 years ago, whether or not you will have your sentenced enhanced is within the discretion of the judge. Different judges, different outcomes. Different circumstances of your case, different outcomes.

The statute compels the judge to sentence as a repeat offender, if within 7 years you have had a previous D.U.I. conviction, a deferred prosecution, or a conviction for either Negligent Driving, First Degree or Reckless Driving -if either of those offenses were reductions from D.U.I. If this is the history before the court, you will face enhanced sentencing.

The statute at the same time compels a lifetime record of the D.U.I. conviction. That's because the statute envisions that some courts under some circumstances will feel it appropriate to impose sentences higher than the minimums. This is the very reason why the D.U.I. record is required to be maintained for a person's lifetime.

So, the "bottom-line" is that if your prior conviction was within 7 years, subsequent offense sentencing is absolute. If your prior conviction was more than 7 years ago, then the judge is not required to impose subsequent offense sentencing, but may do so if he or she wants to do so. Judges are people. People are different. Some judges follow a strict 7-year limit while others do not. The individual judge in your case and the specific facts of your case and the strength of the defense of your case will determine the difference. This "gray" area can be made a bit less gray by discussion with a capable, experienced criminal attorney. Call me.