On the DWI sentencing bubble between Levels 5, 4 and 3? Don't forget the catch-all category.
With DWI sentencing in the 3 most lenient sentencing levels, Level 5, 4 and 3, its still true that the punishment increases greatly between levels even though, normally, active jail time is not going to be imposed in most courts, although not unheard of. Landing on a more lenient level can mean less community service hours, less fines, and less exposure to possible jail time should the suspended sentence get activated. To get to a level 5 the mitigating factors must outweigh the aggravating factors. To get to a Level 4 from what would be a Level 3, the mitigating factors must counter balance the aggravating factors. While its up to the presiding judge to determine what weight to be given to all factors presented from both sides, a defendant can sometimes appear overwhelmed by the shear number of aggravating factors a zealous prosecutor may present.
Often overlooked mitigating factors are critical to get the defendant off the bubble to the next lenient sentencing level:
;(e)3 Driving at the time of the offense that was safe and lawful except the the impairment of the defendant's faculties. Its true many cases also involve bad driving or illegal conduct, check point cases are likely candidates for this mitigating factor. Also, cases where the defendant is not in motion but behind the wheel with the motor running could include this factor. Cases where the stop is for weaving in the lane of travel not leaving the roadway or crossing the center line would also qualify.
:e(7) The catch-all category- "Any other factor that mitigates the seriousness of the offense."
In the catch-all category its time to be creative and point good things the defendant did during, and after the case. Here is some that have worked but certainly not an exhaustive list:
The defendant was polite and cooperative- Depending on the judge this one can help a lot. I don't think it precludes and defendant that respectfully asserted his rights under the law.
The defendant plead admitting guilty at and early stage. Depending on the backlog of case in a jurisdiction, a prosecutor may agree to stipulate to this one.
That the defendant has abstained from the use of alcohol since the offense date. Its better to have someone in the court room with the defendant who will stand up and tell the judge that is a fact but its still worth mentioning if the defendant has no one there.
Completion of treatment- While this is covered in the mitigating factor with the alcohol assessment, if the defendant has finished all the treatment before the sentencing hearing, its worth pointing it out and handing up the certificate of completion.