ENHANCED PENALTIES for DUI (cont)
The prosecution must plead the enhancements and do it with specificity — that is, with specifically alleged facts, rather than merely in the statutory language. And the facts must be independently proven beyond a reasonable doubt; in a jury trial this is usually done with special findings of fact.
Where the enhancement has the potential to emotionally bias the jury against the defendant on the drunk driving charge itself, and proof appears to be easily accomplished, counsel should consider admitting the allegation. Thus, for example, where there is an easily proven prior conviction or where there is a small child in the vehicle, the allegation should be admitted prior to trial. Since the fact is no longer in issue, it can be argued, admission of evidence concerning the allegation should not be permitted.
It may be that the defendant wishes to plead guilty to the drunk driving charge, but contest the enhancement(s). This can be accomplished in a number of ways, such as by submitting the matter on the arrest report or by an evidentiary hearing. Where the alleged enhancement is for excessive blood alcohol, for example, counsel may wish to plead to the "per se" offense but contest the issue of whether the BAC was over .20 percent at the time of driving.
This procedure suggests possibilities for plea bargaining. Dropping an enhancement in exchange for a plea to the drunk driving charge is the obvious approach. But in many cases the prosecution, for perhaps political reasons, is unwilling to be seen as "soft" on DUI. In this situation, counsel might consider an arrangement with the prosecutor and the judge: a plea of guilty, with the enhancement submitted on the arrest report — and an implicit understanding that the court will find insufficient evidence to sustain the allegation. This can have particularly beneficial consequences for the client where the enhancement involves facts that give rise to an administrative license suspension: A judicial finding on that fact should be binding on the motor vehicle agency.