Can DUI Charges Be Merged?

Our clients sometimes ask us, “Can DUI charges be merged?” The term “merger” can have several meanings with regard to DUI-DWI offenses. Certain criminal offenses are integral parts of greater offenses. If a defendant is convicted of the greater offense after a jury trial, he or she cannot also be sentenced for the lesser offense as well.

In a DUI-DWI trial, if the defendant is found guilty of first-degree vehicular homicide (a homicide caused by a drunk driver), the lesser misdemeanor of the DUI-DWI is usually merged into the punishment for the homicide. Reckless driving and public intoxication typically are not lesser-included offenses in a DUI-DWI, so a defendant can be tried and sentenced on both the underlying driving act as well as the felony vehicular homicide.

A defendant convicted of different types of alcohol DUI-DWI (DUI per se and traditional DUI) for the same incident can only be sentenced for one. However, sentencing for separate convictions of DUI-alcohol and DUI-drugs from a single arrest may not be merged.

What is “evidence in aggravation?”

“Evidence in aggravation” refers to factors which likely could not be introduced by the prosecutor at the jury trial in the determination of guilt, but which may be presented by the prosecutor at sentencing and considered by the court in imposing a fair punishment after conviction.

Examples of these kinds of aggravating factors include any prior criminal record, or possibly facts surrounding the defendant’s actions after he or she was confronted by the police, or after being placed in custody. Thus, while it is usually improper for the prosecution to tell the judge or the jury about a defendant’s prior DUI-DWIs during the trial itself, the defendant’s prior criminal offenses are fair game during sentencing after conviction.

If you have a clean criminal record, this bodes well for you. Unless some type of egregious or outrageous behavior occurred in connection with your DUI-DWI arrest, your sentence should be set at or near the minimums established by law. Types of outrageous behavior may include resisting arrest, verbally abusing the officer, not immediately stopping when emergency lights and siren come on, or such similar negative or dangerous acts.

What are “mitigating circumstances” in a DUI case?

“Mitigating circumstances” in criminal law are facts, conditions, or circumstances which do not excuse or justify the defendant’s criminal conduct, but which may be considered by a judge in deciding what would be fair punishment.

The drunk driving attorney for the defendant usually presents this evidence. For example, if a defendant made elaborate plans to use a designated driver and the plans fell apart, leading him or her to attempt to get home from a remote location, this might carry some weight with some judges.

If you lost your job as a result of your DUI-DWI arrest, this also may impact the judge’s decision by not assessing a high monetary fine.

This is information that might not be relevant in the determination of a defendant’s guilt, but which may be important in a determination of a fair punishment. In a DUI-DWI sentencing, common evidence in mitigation may include evidence of regular attendance of Alcoholics Anonymous meetings, voluntary submittal to alcohol treatment and counseling, pre-sentence performing community service hours as a form of penance, and possibly making restitution for property damage or loss.

Can my prior DUI convictions increase my current DUI penalties?

In DUI-DWI sentencing, your prior criminal conduct can almost always be considered as a part of sentencing. In other words, if you have a prior conviction, for a previous DUI-DWI or even a “deferred plea,” and are convicted for a second DUI-DWI offense at a later time, it is likely that the sentence for the second offense will be more severe because of the first conviction or the “deferred adjudication.”

One avenue of attacking the more severe sentence for the second impaired driving offense is to either seek to vacate (remove) the prior conviction or to attack the proposed use of the prior offense, if possible. Such challenges are rare, but can result in saving your driving privileges and possibly reducing jail time by many days or even months.