Total DUI

Lea Anna Cooper suggests, on the American Chronicle website, that Kiefer Sutherland may face double jeopardy when tried for his recent DUI charges. Her claim of double jeopardy is simply a misunderstanding of DUI law.

Sutherland, star of the controversial hit show “24,” was arrested in September and charged with driving with a blood alcohol level (BAC) above 0.08 percent and driving under the influence. Cooper asserts that the two charges against Sutherland would amount to “double jeopardy.” Strangely, Cooper also reprints portions of a California criminal case that explains how she misunderstands DUI law, People v. Cosko, 152 Cal. App. 3d 54, 199 Cal. Rptr. 289 (1984).

As Cosko explains, Sutherland has been charged with two crimes; one is a “lesser included offense” of the other. In other words, the charge of driving with a BAC above 0.08 percent includes the elements of the misdemeanor charge of driving under the influence plus the element of having a BAC above 0.08 percent. Cosko points out that a prosecutor has the right to charge a defendant with a crime and lesser included offenses to assure that she gets a conviction. A court cannot, however, actually convict a defendant of both the charged offense and the lesser included offenses.

Sutherland does actually face revocation of his probation stemming from his plea to driving under the influence in 2004. He was sentenced to 60 months probation and could now face up to 18 months in jail for violating his probation. However, it is very unlikely he will see any more than the 96 hours in jail required under California law.

So does this mean that even though you can be charged with the .08 per se offense and the dui offense you can not be convicted of both? That one of the charges must be dropped?