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hris Perri Law is a criminal defense law firm located in Austin, Texas.

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Chris' Blog

The blog of Chris Perri Law, written by Chris Perri and Shannon Perri. Read the latest in exciting cases where justice is served.

Filtering by Tag: austin criminal defense attorney

You’ve been found guilty – now what?

Chris Perri

Photograph by  Stefan Kalweit

Photograph by Stefan Kalweit

Being convicted of a crime can have devastating consequences, including incarceration, loss of civil liberties, and difficulty finding a job. Yet the unfortunate truth is that people are wrongfully convicted all the time. That said, a guilty sentence doesn’t mean the fight is over. A major part of my practice focuses on post-conviction remedies, which can be categorized into two types: Appeals and Writs. Here, I’m going to explain the differences between these two procedures.

APPEALS:

Following a judgment of conviction, defendants have 30 days to alert the trial court that they want to appeal, so it’s important to quickly find a post-conviction criminal defense attorney. On appeal, the defense must argue that the trial judge erred in ruling on some issue in the case. For example, many defendants unsuccessfully argue to the trial judge that their vehicle was illegally searched during a traffic stop. If the trial judge rules that the search was legal, defendants can appeal this ruling to the Court of Appeals. The appeal proceeds “on the record,” meaning that no additional evidence can be presented in the appellate proceedings (the “record” is the transcript of the proceedings at the trial). A defendant cannot raise an issue for the first time on appeal, as there can be no error by the trial judge if the issue was never brought before that judge for a ruling. In other words, the error must be “preserved” in order for it to be considered on appeal.

Normally, an appeal is only available if the defendant lost at a trial or evidentiary hearing. When a defendant pleads guilty and the judge sentences that defendant according to a negotiated plea bargain, there’s nothing to appeal, even if the defendant is unhappy about the result of the case. In such a situation, a defendant should consider filing a writ, which is discussed below.

WRITS:

Sometimes, new evidence arises after a conviction becomes final. In order to present this evidence to the court, a defendant must file an application for writ of habeas corpus. In Latin, “habeas corpus” means “produce the person,”, and if the court issues the writ, it is directing the prison warden to release the defendant, usually for a new trial.

Writs are different from appeals because new evidence can be presented to prove the claim the defendant is making. For example, if the defendant believes there is new scientific evidence that proves their innocence, this evidence can be introduced through a writ. The most common claim on writs is “ineffective assistance of counsel,” meaning that the trial attorney committed some type of error or omission that deprived the defendant of their constitutional right to effective assistance of counsel and a fair trial.

The defendant carries the burden of proving any writ claim. “Innocent until proven guilty” no longer applies once a defendant is convicted, so the attorney handling the writ must use investigative tools to develop the claim. Writs are commonly used when a defendant pleads guilty based on bad advice from their lawyer, such as incorrect advice about the immigration consequences of a conviction. As explained above, an appeal is not available in those situations because the trial court never ruled adversely on an issue; however, a writ allows the defendant to develop a record regarding the trial counsel’s alleged ineffective assistance.

One of the most famous writs in Texas criminal law history involved Michael Morton, who was wrongfully convicted of murdering his wife in Williamson County and spent nearly 25 years in prison. Morton’s writ lawyers proved that the prosecutor hid evidence that a third party committed the murder, and Morton was ultimately set free.

If you or a loved one has been wrongfully convicted of a crime, contact an experienced post-conviction attorney for a consultation. Chris Perri Law has experience successfully overturning wrongful convictions and helping people get back their lives and liberties. Call Chris at (512)917-4378.

Recent Supreme Court Decision Protects 4th Amendment Rights During Traffic Stops

Chris Perri

Last week, in Rodriguez v. United States, the Supreme Court clarified that police officers may not prolong a traffic stop in order to conduct a dog sniff on a vehicle, unless there is reasonable suspicion to believe that the occupants are engaged in criminal activity.

In this case, the defendant was pulled over in Nebraska for illegally driving on the shoulder of the highway. About 20 minutes later, the police officer issued a warning ticket for the traffic infraction. However, the defendant was not yet “free to leave.” The police officer instructed the defendant to exit his vehicle and stand in front of the patrol car while they waited for another police unit to arrive. About seven more minutes elapsed before the arrival of the backup unit. At this point, the officer led a drug-detecting dog around the defendant’s vehicle. The dog alerted to the presence of drugs, and a subsequent search of the defendant’s vehicle revealed a large quantity of methamphetamine. The defendant was convicted and sentenced to five years in federal prison.

On appeal, the Government argued that waiting a mere seven minutes for the drug dog to sniff the outside of defendant’s vehicle constituted a de minimus (minimal) intrusion on the defendant’s Fourth Amendment rights, meaning that the intrusion was so minor that it was constitutionally permissible. Fortunately, our Supreme Court rejected this argument. The Court noted that certain intrusions, such as asking a person to step outside the vehicle during a lawful traffic stop, are “negligibly burdensome precautions” that allow an officer to complete the traffic stop “mission” safely. “On-scene investigation into other crimes, however, detours from that mission,” wrote Justice Ginsburg, who authored the majority opinion.

An officer may not prolong a traffic stop in order to conduct a dog sniff unless facts are developed during the traffic stop that support reasonable suspicion of drug activity. For example, if an officer smells drugs during the stop or notes a contradiction between the driver’s and passenger’s statements regarding their travel itinerary, the officer might have reasonable suspicion to prolong the stop in order to investigate drug activity. However, an officer can’t conduct a dog sniff on a car based on a mere hunch that’s not supported by actual observations of suspicious activity.

Even if the officer had conducted the dog sniff prior to issuing the warning ticket, the result would be the same: “The critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket, but whether conducting the sniff ‘prolongs’ – i.e., adds time to – ‘the stop.’”

This recent case enhances Chris Perri Law’s arsenal for attacking unlawful searches at suppression hearings. We’ve begun 2015 with three victories on suppression issues, and we’ll continue to fight to protect our clients’ constitutional rights.

How to Avoid (or Deal With) Summertime Public Intoxication Charges

Chris Perri

Photograph by Frank Alcazar used under the Creative Commons Attribution License.

Photograph by Frank Alcazar used under the Creative Commons Attribution License.

In the summer months of Austin, Texas, time seems to stop. Everyone knows the days are long and ridiculously hot. The sun is oppressive, and we are all constantly dripping with sweat. Half of the city is on school break or traveling. Thus, it’s understandable that workdays need Barton Springs swim breaks and margarita-filled happy hours. In this heat-induced and alcohol-infused blur, it’s no surprise that summer is the most common time for people to rack up Public Intoxication (PI) arrests.

Many of us will be intoxicated in public at one point or another, and as long as you aren’t driving or acting in a way that’s unsafe, that’s perfectly legal. However, it is at the discretion of police officers to determine what behavior is deemed dangerous. The Texas Penal Code defines Public Intoxication (PI) as when: “a person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.”

Below, Chris Perri has outlined a few general tips on how to avoid a PI and what to do if you find yourself in the back of a police car.

How to Avoid Getting a PI

  • Don’t overdrink alcohol in public places. As obvious as it may sound, it’s the truth. If you want to keep the party going, move it to your house to minimize the risk of arrest.
  • Avoid aggressive behavior. Police officers most commonly make PI arrests when they see people fighting or on the brink of a physical altercation.
  • Adhere to pedestrian walking laws. If you are walking in the street or not following basic pedestrian laws, a police officer may interpret this as dangerous behavior. If they believe your erratic behavior is the result of drinking alcohol, then you’ll likely be in handcuffs before too long.
  • Walk straight and don’t slur your words. Again, easier said than done, but if you feel yourself getting to this point, it’s a good time to flag down a taxi or call a friend to take you home.
  • Avoid urinating in inappropriate places, AKA non-bathrooms. Believe it or not, this behavior happens frequently and draws attention to law enforcement.

What to Do Once You Are Arrested

If an officer has approached you and seems likely to arrest you for a PI, the best thing you can do is cooperate. Though getting arrested can be scary, remember, a PI is only a Class C Misdemeanor charge that carries no jail time. Likely, they’ll take you to the jail for one night to “sleep it off,” and you’ll be released the next day. However, if you see a judge while in custody, make sure you don’t plead “guilty” or “no contest” without consulting with an attorney. In most cases, skilled attorneys can help you get the charge dismissed and eventually expunged if you are willing to take an educational class and perform community service. However, if you plead guilty, this will lead to a conviction, which will make the crime ineligible for expunction.

The worst thing you can do when getting arrested for a PI is to resist or act aggressively. If you try to resist, you will likely be charged with Resisting Arrest, which is a Class A Misdemeanor that carries jail time and is harder to dismiss. Worst-case scenario: your resisting escalates to an Assault on a Public Servant, which is a felony, and then you’ll still be dealing with the charge when summer is long gone.

If you or a loved one has recently been arrested for a PI or a related charge, call Chris Perri at (512) 917-4378 for advice on how to best navigate the specifics of your case.

Lowering the Legal Alcohol Limit for Drivers Would Backfire

Chris Perri

Recently, The National Transportation Safety Board released an official recommendation for all states to lower the legal alcohol driving limit to a .05 blood alcohol concentration (BAC). Currently, the blood alcohol legal level is .08. See the chart below to see how these limits actually translate to individuals’ alcohol consumption.

bac-chart.jpg

At Chris Perri Law, we believe that lowering the legal limit would be a mistake and lead to injustice. “I think it dilutes the standard for intoxication,” Chris Perri says. “There is about a .02 margin of error on these breath tests. People that aren’t drunk and even had only one beer could register over the legal limit.” According to Chris, this would cause even more people to refuse to cooperate with police officers, as it puts those who have just had one drink at risk of severe legal consequences. In fact, Chris believes that raising the legal limit would actually lead to safer roads, as then the crime would be more stigmatized by our community. At present, Chris feels it is too easy for anyone to get a DWI, and if the limit was lower, it would seen as even less of a big deal to have been convicted of a DWI. To Chris, it is just not okay for someone who registered at a .08 BAC to be facing the same charge as some registered at, say, a .14.  Currently those arrested with a very high BAC actually benefit from the fact that they are lumped together with those just barely over the limit—the community sees all these crimes as one.

Another concern is that the police are under pressure to arrest anyone who has possibly had one drink for their own liability reasons. If they let someone go and that person has an accident, the city could be sued. However, this leads to innocent, law-abiding citizens spending nights in jail, carrying criminal records, and causing additional tax money to be spent on the criminal justice system. Further, if the BAC limit was say, .12, then when someone is arrested at this BAC, there would be no question that the person was drunk and needs a steep punishment. Currently, having a DWI is not a major stigma because the population understands that even those who aren’t drunk can end up with an arrest.

The National Transportation Safety Board states that more than 100 countries around the world have adopted a .05 BAC legal limit, and that this had led to fewer alcohol-related accidents. However, what is unfair about this comparison is that in these other countries, readily-accessible alternative transportation options exist. Chris Perri believes that in cities in like San Francisco, Chicago, and New York City there is absolutely no reason to ever drive after drinking alcohol. Yet, in Austin, we lack a viable public transportation system. A much better way to spend our tax dollars would be on developing better transportation options – not prosecuting individuals with a .05 BAC.

A forgotten element in this debate is how lowering the legal BAC would adversely affect the indigent population. Those with a lower socio-economic status are less likely to have funds for a taxi service. Also, if arrested this population often does not have ability to pay for a private attorney, so they must rely on a court-appointed attorney, which can be a bit of a crapshoot. Let’s not forget, court-appointed services are also paid with our taxes. Furthermore, giving more people criminal records, especially those already facing hardship, does not help anyone, but instead harms our entire community. Having a criminal record makes getting a job harder and also increases one’s likelihood of repeating the crime, as one’s sense of identity begins to shift due to the community’s label of that person as a “criminal.”

At Chris Perri Law, we believe strongly in finding ways to reduce accidents related to drunk-driving. However, Chris feels that by making a DWI more stigmatized and also offering improved public transportation options are much better ways to focus our efforts than punishing those for driving after just one drink.

We’d love to hear what you think, too. Let us know in the comment section.

Not Guilty in Austin Municipal Court!

Chris Perri

“Not guilty.” Those are the two sweetest words that a criminal defense attorney can ever hear. Today, the jury returned this coveted verdict in a speeding trial at the Austin Municipal Court. Sure, it was just a speeding ticket. But for my client, who holds a commercial driver’s license (CDL), it was a very important case. Most people can easily get their tickets dismissed by taking a defensive driving course. However, under the law, anyone holding a CDL does not have this option. Instead, they must either fight the ticket or take a conviction. One of the most common misperceptions is that simply driving over the speed limit is against the law. In actuality, the law states that “an operator may not drive at a speed greater than is reasonable and prudent under the circumstances then existing.” See Tex. Trans. Code §545.351. I discussed this law with the jury panel during the voir dire process, and they were very surprised that there’s more to speeding than simply driving above the speed limit. As I pointed out to them, discovering the actual wording of the speeding law is analogous to finding out that there’s no such thing as Santa Claus.

There’s one wrinkle here: when the State proves that a vehicle was travelling over the speed limit, that’s “prima facie” evidence that the driver’s speed was not reasonable and prudent. I explained to the jury that this only means that if the State proves the speed was over the limit and I present no further evidence regarding the reasonableness of the speed, then I lose. But once I bring forth any evidence that the driver’s speed was reasonable, the State has the burden of proving the speed was unreasonable. Plus, this burden is a heavy one: “beyond a reasonable doubt.”

At the trial, we presented evidence that on the morning of the alleged speeding incident, my client was stuck behind a boat trailer on Highway 183. The boat was being hauled by an undersized pickup truck, and my client testified that he felt that the trailer was creating a hazard on the road. A car in front of my client passed the trailer, and my client followed suit. In order to do so, he had to increase his speed to about 78 mph on a highway that had a speed limit of 65 mph. Other vehicles behind my client also passed the trailer. I successfully argued to the jury that it could consider the other drivers’ behavior as evidence of the reasonableness of my client’s decision.

The State attempted to counter our evidence through the testimony of the police officer, who stated that my client was speeding before and after he encountered this boat trailer. The officer further testified that there was a curve on the road that made it unsafe to travel above 65 mph. The jury was unconvinced. After all, this was a dry day, and my client was a “professional driver.” He testified that he made a “judgment call,” and who was the jury to disagree with his professional judgment?

After about 20 minutes of deliberating, the jury returned its two-word verdict. My client exited the court triumphantly with his clean driving record intact.

No jail time, no convictions in marijuana transportation case

Chris Perri

Despite being caught transporting approximately 35 pounds of marijuana across the country, my clients won’t have to spend any time in prison after I worked out an excellent plea deal with the reasonable district attorney in Carson County, Texas. My clients were pulled over along I-40 in the Texas Panhandle, and we were prepared to contest the legitimacy of the stop unless we achieved a reasonable plea bargain. The driver was adamant that his passenger's case be dismissed due to the passenger’s lack of knowledge of the illegal contents of the trunk. Eventually, the prosecutor agreed, so the passenger’s case was dismissed, and he’ll be eligible to expunge all records of the arrest in about 2.5 years. Meanwhile, the driver won’t even have a felony conviction on his record because I worked out a deferred adjudication, meaning that as long as the defendant abides by the terms of his probation, a conviction won’t be entered in the case. The catch was that he had to pay over $6500 in various fines and court costs. Still, that’s a lot better than facing the penalty range of a third-degree felony (2-10 years in the state prison, which isn’t fun for first-timers).

Also, the outcome represents an implicit understanding that marijuana isn’t a terrible drug like methamphetamine, cocaine, or heroin. In fact, most of the people who were supposed to receive my clients’ marijuana were cancer patients who use it as medicine to help cope with the side effects of chemotherapy. Even though the expensive fines may seem quite harsh, that money will go to good use in the Texas Panhandle, as it can be used towards public goods, such as education and environmental initiatives. In the end, that’s a true win-win!

Marijuana charge dismissed

Chris Perri

The progressive Travis County Attorney’s Office dismissed my client’s possession of marijuana (POM) charge today in exchange for him pleading guilty to a lesser charge of possession of drug paraphernalia, which is a class C misdemeanor (same category as traffic offenses). All my client had to do was pay $172 in fines and court costs. In POM cases like this one, which was a class B misdemeanor because it involved less than two ounces of marijuana, the Travis County Attorney usually gives first-time offenders a break. The prosecutors recognize that a POM conviction results in the burdensome automatic suspension of an offender’s driver’s license for six months, which can often lead to someone becoming a repeat offender if they drive with the suspended license. Our prosecutors want to put these defendants in the best possible position to overcome their criminal charge, so they’ll usually dismiss the charge in exchange for the defendant completing a 15-hour drug education class and community service.

Now that police officers are permitted to issue “sign and release” citations whereby POM defendants aren’t booked into jail when they possess less than two ounces, marijuana possession could almost be said to be “decriminalized” for first-time offenders in Travis County, as they’re likely to have the charge reduced to the same grade as a traffic offense, which carries no possibility of jail time.

On the other hand, if you go up the road to Williamson County, the situation is much different. Even if you get caught with just a joint, you’re likely to be sentenced to 18 months probation, and if you violate any conditions of that probation, it’s not uncommon for one of the no-nonsense judges to slap you with a 90-day jail sentence.

Court says driving near Sixth Street at night is suspicious

Chris Perri

As most people probably know, if you’re driving home from the Sixth Street area late at night, you’re under suspicion from Austin’s DWI task force, which camps out at the heavily trafficked roads that lead away from the bar district. And now, based on a recent Court of Criminal Appeals ruling in Foster v. State, you can get pulled over even if you haven’t committed a traffic offense.

As a criminal defense attorney, one of my first questions of a client charged with DWI is: “Why did the cop pull you over?” Until recently, the answer almost always involved some type traffic offense, such as speeding, running a red light, expired inspection or registration, taillight out, etc. However, check out the facts of Foster:

A police officer was stopped at a red light in the right lane of West Sixth Street. Foster’s truck drove up very close to the back of the officer’s vehicle, and then the truck made a “revving” sound. The officer also described the truck as lurching forward, possibly to try to turn into the lane to the left of the officer. The officer then initiated a traffic stop of Foster’s truck despite the fact that Foster hadn’t violated any traffic laws. Foster then failed sobriety tests and was arrested for DWI.

The Court of Criminal Appeals found that the stop was validly supported by reasonable suspicion, which is the constitutional standard for such investigatory detentions. (Note: police officers need “probable cause” to arrest a person, but only “reasonable suspicion” to temporarily detain someone in order to investigate criminal activity). According to the court, the officer validly took into account the time of day and location in determining whether there was reasonable suspicion to detain Foster.

Here, the officer testified that based on his training and experience, people leaving the Sixth Street bar district late at night are likely to be intoxicated. When this circumstance is combined with Foster’s “erratic driving,” the Court found that was enough to pull him over. On the other hand, if Foster’s driving behavior had occurred on a residential street during the light of day, an officer would probably not have been able to validly pull him over because such driving behavior, in isolation, doesn’t amount to reasonable suspicion of a crime.

Of course, Foster’s an idiot for driving so aggressively in an area known to be patrolled by cops late at night. But until now, most attorneys would’ve agreed that he couldn’t be pulled over unless he committed a traffic offense. Now, that’s changed. And if you drive near Sixth Street at night, you’re already under suspicion; if you do anything that’s conceivably “erratic,” you’ll likely be the subject of a DWI investigation.

The best advice is to take a taxi or designate a sober driver in order to avoid an accident or police contact.

Appeals court upholds suppression of evidence

Chris Perri

Last year, I successfully moved for the trial court to suppress the State's expert testimony regarding my client's blood-alcohol concentration (BAC) at the time of an alleged incident of Boating While Intoxicated. I wrote about this in my blog at the time. The State was unhappy with the judge's ruling, so it appealed. Today, a three-judge panel of the Third Court of Appeals upheld the trial court's ruling that the State could not introduce expert testimony on my client's BAC. The opinion can be read here. This is a great victory for my client, and I anticipate that the State will dismiss the pending charges due to the fact that it would not be allowed to present evidence of my client's alleged intoxication if the case proceeded to trial.

Expunging your DWI arrest just became easier

Chris Perri

Just because your criminal charge has been dismissed doesn’t mean that your arrest record goes away. If you don’t obtain a valid order of expunction, government records and online databases will continue to reflect your arrest...

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Another theft charge dismissed

Chris Perri

Today, the prosecutors dismissed my client’s pending charge of class B misdemeanor theft (the value of the stolen goods was between $50 and $500).  To obtain this dismissal, I worked out a deal where my client entered into a deferred disposition agreement on a class C misdemeanor theft charge (the value of stolen goods were less than $50).  If my client completes 20 hours of community service and stays out of trouble, that charge will be dismissed in six months.  She would then be eligible to expunge all records of her theft arrest two years from the date of the offense.  After expunction, she will be able to deny that any theft arrest ever occurred.

City of Austin vs. Chris Perri

Chris Perri

A few weeks ago, I drove to Town Lake for one of my longer runs.  Despite being around 11 am on a weekday, all of the parking spaces were full.  I saw that some cars had driven onto a dirt area to park their cars, and I followed suit.  After returning from my run, I found a $50 parking ticket on my windshield for parking in a “Tow Away Zone,” despite there being no sign that indicated it was such a zone.  Needless to say, I was upset. Because I’d parked in this area on previous occasions, along with seeing other people regularly park there, I decided to contest the ticket.  According to the City of Austin procedure, violators are entitled to a hearing if they come to the Municipal Court within 30 days of receiving a ticket.  Also, being a criminal defense attorney, I figured it was my duty to fight the seemingly unfair ticket, rather than just pay it off.  At the very least, I could receive valuable information on whether I had illegally parked at Town Lake.

Today, I prepared my evidence and got in line.  After about a 15 minute wait, a “hearing officer” was ready to judge my case.  The hearing is very informal, as it takes place in a small office with an audio recorder.  After being sworn in, the officer asked me a few basic questions about the circumstances of me receiving the ticket.  Then, she allowed me to present my side of the story.  Using my three photographs as exhibits, I presented my case.

The first picture shows that there is a “No Parking” sign, but the arrows point to the left and right.  To a reasonable person, this sign indicates that there is to be no parking in the roadway.  To demonstrate that there was a roadway (and that I was not on this roadway), I showed this picture:

Finally, I pointed out that cars often park in this dirt area, as demonstrated by the minivan, along with the tire marks in the following photograph:

The hearing officer informed me that I was incorrect.  She pointed out that there was a curb that I had to drive over in order to park in the dirt.  I responded that it was a very low curb and functioned similar to a ramp, but she asked me whether it was indeed a curb.  On this point, I agreed.  She also questioned me whether there were any signs that indicated this was a legal parking area.  I answered that there were none.  Plus, the hearing officer pointed out that there are “2-hour parking” signs next to the legal spots.  For these reasons, I was parking in an illegal area.  She then proceeded to educate me regarding why the area consisted entirely of dirt: people like me park there, ruining the lush grass that had formerly been enjoyed by Austinites!

At this point, I was ready to leave, tail between my legs.  This criminal defense attorney had been whipped, and I knew it.  But, she stated that she was dismissing my ticket because I was correct when I initially pointed out that I was not in a “Tow Away Zone.”  Instead, the ticket-writer should have indicated that I had parked in a “Right of Way” area.   Due to the fact that my ticket had been improperly marked, I was relieved of any obligation to pay.  Ah, a technicality – a defense attorney’s best friend.

That’s right, City of Austin, don’t mess with the baddest lawyer in town!

Theft charge dismissed

Chris Perri

One of my young clients was caught stealing from a local department store.  Despite the evidence against her, she was approved for a pretrial diversion program, and the charges were dismissed today.  As long as she succeeds in performing the conditions of the program (community service and avoiding further trouble with the law), she will be able to expunge the arrest two years from the date of the offense. For young clients, expunctions are extremely important, as they allow clients to deny that their arrest occurred when prospective employers or educational institutions question them about their criminal histories.

An expunction victory

Chris Perri

After two years of considering the case, the Third Court of Appeals in Austin decided in my client’s favor on an important expunction issue.  Prosecutors had been trying to prevent defendants from expunging their DWI arrests when they took probation on lesser charges (Reckless Driving or Obstruction of a Highway).  This was due to a strained reading of the expunction statute that I discuss more thoroughly in my blog.  The Third Court of Appeals accepted my argument that an expunction analysis should proceed by looking at each charge in isolation; as a result, a dismissed DWI is eligible for expunction regardless of what happens on another charge that stems from the same arrest.  This is a great victory for any defendant who uses plea bargaining to get rid of an unfair DWI charge. Remember, if you don’t get your charge expunged, potential employers can still see the arrest!