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Good evening. I certainly understand the situation and concern. A Class E Felony can have a prison sentence up to six years and no less than one year in a state facility. The jury may also access a fine of no more than three thousand dollars.Of course, those are the maximum sentence and when you appear in court, you can certainly ask the State for a plea offer to resolve this. The offer will be based upon 1) the facts of your case and 2) your prior criminal history. If the only other charge you have is the DUI, there should be no reason that the State would seek any jail or prison time, unless the retaliation was severe in nature. Moreover, the prosecutor will speak with the Officer and see what he is comfortable with. In a situation like this, a probationary sentence would likely be imposed, along with a fine, court costs, possible anger management classes and maybe community service. I have also provided for your review below, the jury instructions which would be read and what the State must prove, if you wanted to proceed to trial. You should review this and determine if there is enough evidence present, to prove the charge beyond a reasonable doubt. If there is not or anything is questionable, it would be best to retain private counsel or ask to be appointed the public defender
, if you have not already, so they can review the facts of the case and see if you have any legal defenses to raise and if you should fight this.
T.P.I. -- CRIM. 26.06
RETALIATION FOR PAST ACTION
Any person who commits the offense of retaliation for past action is guilty of a crime.
For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements:
(1) that the defendant harmed or threatened to harm the alleged victim by
any unlawful act;
(2) that the alleged victim had been a [witness at an official proceeding]
[judge] [district attorney general
] [assistant district attorney general] [employee
of the district attorney general] [law enforcement officer] [clerk] [juror] [former juror];
(3) that the defendant did so in retaliation for anything the [witness] [judge] [district attorney general] [assistant district attorney general] [employee of the district attorney general] [law enforcement officer] [clerk] [juror] did in an official capacity as [witness] [judge] [district attorney general] [assistant district attorney general] [employee of the district attorney general] [law enforcement officer] [clerk] [juror];
(4) that the defendant acted either intentionally, knowingly or recklessly.
["Official proceeding" means any type of administrative, executive, legislative or judicial proceeding that may be conducted before a public servant authorized by law to take statements under oath.]
["Juror" means any person who is a member of a jury, including a grand jury
, impaneled by any court of this state or by any public servant authorized by law to impanel a jury. The term "juror" also includes any person who has been summoned or whose name has been drawn to attend as a prospective juror.]
"Intentionally" means that a person acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result.
"Knowingly" means that a person acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.
"Recklessly" means that a person acts recklessly with respect to circumstances surrounding the conduct, or the result of the conduct, when the person is aware of but consciously disregards XXXXX XXXXX and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused person's standpoint
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