We are all new at our jobs. Being a prosecutor is no exception. When you are a new prosecutor it is hard to make a decision on how to handle what looks like and may be a serious case. As I said to the police liason after this case, it was a learning experience. I have a .18 case and get a call the day before offering a plea to the Per Se and the Negligent Driving. If I try and lose it, that is what I get. I tell the prosecutor it will be a trial. I have a judge with no trial penalty and Gaudenzia Treatment (weekend in-patient and 26 weeks) for a first offense. I am playing with house money. We are sitting in court and just before the judge comes out, I am offered the Per Se only. I decline and they need to get the witnesses. Shortly after that the prosecutor calls the case for trial to see if I am going to ask for a jury trial when the witnesses arrive. The answer was no, but she did not ask. I had some schtick I wanted to try with the judge. Since she called the case for trial and we waived my client’s right to a jury trial the case it ready to go.
Now the State needs to get the witnesses as it is not getting postponed. Twenty minutes later the police liason (he gets the witnesses in), motions me that he wants to talk. The arresting officer is on his way in but the breath tech is handling a fatal. I tell him the breath tech will have to get someone else to tend to the deceased and the investigation as we are in trial and waiting for him. He asks if I will stipulate and I ask him if he is crazy as that is a guilty plea to the Per Se. He realizes what he said and laughs and says of course I will not speculate. The calvary arrives in the form of a very experienced prosecutor who has finished his docket and the liason grabs the file to get his help. I am sitting in the front row on the other side of the room and start waving to the experienced prosecutor to get out of here. The judge sees it and knows what is going on and starts laughing. I go out into the hallway and explain how screwed they are and they are not getting a postponement. A half an hour later when the case is called, I ask how many witnesses the State has and the answer is one. I walk over and suggest it is time to let my client plead to the lesser DWI and a smile of relief comes across the prosecutor’s face. There was plenty of impaired evidence from the driving to the field tests. The client got the PBJ that he earned, but to the lesser offense. We were there all afternoon but the client got the best result possible.The prosecutor learned, just as I did when I started, that you can never be too sure of what you have, so don’t assume everyone is available when you make decision to see if I am bluffing. The case might have been postponed had it not been called for trial.