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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 30180
Experience:  Criminal Justice Degree, JD with Criminal Law Concentration. Worked for the DA and U.S. Attorney.
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I have been charged with a second offense dui in montana.

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I have been charged with a second offense dui in montana. The prosecutor has offered me a plea agreement in the case for the minimum sentence on a second offense. I have three prior dui convictions. If I accept the plea agreement will i be sentenced for a felony if the judge decides not to accept it ? Or will i then be charged again with a felony?

My name is XXXXX XXXXX I'd be happy to answer your questions today.

The judge usually goes along with a plea agreement. He does have the ability to reject it, but it is rare. It is in the interests of judicial economy to accept the plea (which saves taxpayer money and judicial resources). And, if judges were constantly to reject plea bargains and insert their own judgment, it would make people less likely to want to enter into them - and the entire system would suffer. So, it can happen, but most judges do not make a regular practice of rejecting plea agreements.

If you are charged with a felony currently, and the judge rejects the agreement, it is possible that your record would show that you were sentenced on the felony (because he's not allowing the DA to charge the misdemeanor instead). If you're really concerned, and you have a court-appointed attorney, you may want to talk to him about this particular judge and see if there is any reason to suspect that he won't accept the plea agreement.

If you refuse to accept a plea and insist on going to trial, you will definitely be charged with the felony and, if convicted, sentenced on the felony. It's important to keep that in mind, especially if you don't have a slam dunk defense. A person who is willing to plead guilty gets special considerations that will not be given if the case is taken to trial.

Please rate my service positively before signing out, as this is the only way that I get credit for the time I spend helping you. I hope that you are 100% satisfied - otherwise, please reply so we can continue the conversation. Good luck.
Customer: replied 4 years ago.

i am not currently charged with a felony. can they charge me again later for felony if i plead guilty as a misdemeanor or is the case then closed?

Thank you for clarifying your question. I misunderstood you.

Yes, they can. A DA can amend the charges before the trial, if the evidence supports them, and Section 6-8-731 provides that a fourth DUI conviction is a felony.
Customer: replied 4 years ago.

so if the atorney does not amend the charges before the trial. the judges decision will be the final outcome?

You would have the ability to appeal, but, essentially, yes.
Customer: replied 4 years ago.

so if the judge agrees to the plea bargain, and i am sentenced on the 2nd offense charge. can the attorney file additional felony charges after sentencing?

No, he can't. The plea agreement is a legally binding contract.
Customer: replied 4 years ago.

so the maximum sentence can only be for the 2nd offense that i am currently charged with, as there has not been any felony charges that i am aware of?

If the DA amends the charges to the felony, then you would be arraigned, and the maximum penalties would be the penalties for a fourth offense felony DUI in Montana.

If you're currently charged with a second offense DUI, and the DA is willing to accept a plea bargain and make a deal on those charges, the maximum sentence would be the one allowed by the statute that you are currently charged with (which is a misdemeanor).
Customer: replied 4 years ago.

can the judge throw out the plea agreement and sentence as a felony under an enhancement?

He can throw out the plea agreement. If he wants to sentence as a felony, he needs to arraign you on the new, felony charges. Among other things, you would have to enter a new plea on that charge - and you could immediately ask to have an attorney appointed for you at no cost. A plea on one charge is not automatically transferred to a different charge, which means starting all over.

Again, all of the scenarios you are posing are extremely unlikely. Usually, what happens is, everyone goes to court, the DA tells the judge what the deal is and presents a set of facts about the crime. The judge advises the defendant of the consequences of pleading guilty (like, there is no right to appeal), asks if he is knowingly and voluntarily entering a plea, and if the DA's version of events is more or less what happened. Then, the judge sentences the defendant to whatever the plea agreement was. That's how it works 99.9% of the time.
Lucy, Esq. and 3 other Criminal Law Specialists are ready to help you
Customer: replied 4 years ago.

Thank you for your time you have been very helpful!

You're welcome. I'm glad I could help, and good luck with the case.