Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.
It is always possible to have charges reduced or dismissed. Whether it is probable, meaning more likely than not, is an entirely different question. In addition to charge reductions and dismissals, there is also something known as a charge substitution. Over the course of my career, I have handled more DUI cases that I can possibly remember. During those DUI cases, one of the questions I have been asked repeatedly is can I get my DUI reduced to reckless driving? My answer has been consistent for over a quarter of the century. No, you cannot get your DUI reduced to reckless driving. This usually results in somebody responding in other and total disbelief while saying, “You’ve got to be kidding me. I know so and so, and they got their DUI reduced to reckless,” because we’ve all heard of people having their charges substituted for reckless driving when they’ve originally been arrested for driving under the influence. Notice the language, “Substitution.” When someone gets the reckless driving charge for a DUI arrest, that is a substitutive charge. Reductions in Florida mean that the major offense has a category 1 or category 2 lesser included offense. If the case were to go to trial, the evidence were to be presented, and the jury were getting ready to retire and deliberate before rendering a verdict, one of the issues that comes up when going over jury instructions is lesser included offenses. If something is not within the jury instructions, a lesser offense of the greater offense, then it’s a substitution.
For example, in DUI cases, there is a reduction that I have never seen given, although I have asked for this instruction in numerous trials. That charge is known as Attempted DUI. No judge has granted that. Frankly, Attempted DUI is a category to lesser included offense, and there are going to be very few fact patterns where a judge would find the evidence sufficient to warrant an obstruction that the defendant may have attempted a DUI offense, without completing it. As to whether or not charges can be reduced, substituted, or dismissed, that’s going to be on a case by case determination that is usually made after a defense attorney has filed a rule 3.220(b) Notice of Discovery, and the state has responded with a discovery exhibit. People often think that the arrest report and probable cause statement constitutes all of the evidence in their case, other than photographs or video or testimony.
In fact, most cases have a large number of reports that are included in a discovery exhibit, and the proper way to determine whether charges can be reduced, substituted, or dismissed is for the legal team to go over all of the paperwork, looking for both technical defenses as well as information and evidence in mitigation of sentence. Sometimes, the legal reasons for reducing, substituting, or dismissing a charge is insufficient, but the grounds for mitigation are such that the prosecutor will agree to it. Therefore, when selecting a criminal defense lawyer, finding a team leader who knows the system, knows the policy, and knows the people in that particular county is critically important. I run a statewide practice, but we do so locally.
In conclusion, let me say that whether or not charges will be reduced, dismissed, or substituted is something that will usually take several weeks, or even months, to determine. Nothing moves very quickly in the legal system, and patience is an important component of having a successful outcome in any criminal case.
In What Ways Can Criminal Charges Be Reduced?
There are several different ways charges can be reduced. For example, direct pretrial negotiations are a critical component of many cases. In the first judicial circuit, the Office of the State Attorney has what’s known as a Policy Manual. In that Policy Manual, Assistant State Attorneys are told point blank that they are to file the highest level of charges that they believe the evidence will support. The reality is once they file a charging document, if they want to reduce, substitute, or dismiss charges, they have to go through a felony supervisor. This is problematic for plea negotiations, simply because the felony supervisor’s job is to say no. One of the big secrets and most important components of prosecution is the fact that the prosecutor is an elected public official during the time in our history when politicians are ranting out fear of crime every other day.
As a result, there is a lot of political pressure to produce numbers of convictions. When dealing indirectly with the felony supervisor after a charging document has been filed, this places the defendant in a less favorable position than negotiations prior to the filing of the charging document. Sometimes, those negotiations prior to the filing of a charging document make all the difference in the world.
There is also traditional plea bargaining. Traditional plea bargaining normally happens after a charging document has been filed, but also after the discovery process has been engaged in. The discovery process allows each side to look at the evidence that the other side intends to introduce at trial. Many people think that they are guilty, and will lose simply because of what evidence they perceive being out there. However, a critical question has not been asked. Is the evidence admissible during the trial? This is a key question because if evidence is not admissible, it might as well not exist.
If the evidence does not exist, that can result in charges being dismissed, charges being reduced to a less serious charge of the same type of crime, or in some cases, it can be substituted entirely. I have had many sexual battery, lewd or lascivious molestation conduct, acts, or battery cases where the charges would still remain a sex offense with sex offender designation and registration if they were reduced, yet because of problems in the state’s case regarding evidence admissibility at trial, we were able to negotiate for substituted charges. If someone is charged with a sex offense, and that charge can be substituted for aggravated assault instead of sexual assault, the defendant will still be sentenced to a felony sentence.
However, the points are not going to be so high that prison becomes mandatory, and that even though probation may be involved, there will be no sex offender designation or registration. There are many different ways that charges can be reduced; my favorite is to begin immediately with direct pretrial negotiations that occur before a charging document, called Information of Indictment, is filed. This is when the prosecutor has the greatest amount of flexibility and freedom from the pressures of politics.
Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.
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