A fundamental rule for defense counsel in DUI-DWI plea bargaining negotiations is to bargain from strength and not from weakness. Strength in plea bargaining negotiations usually comes from knowledge and preparation. This means that defense counsel should perform the investigative and discovery functions in a drunk or impaired driving case prior to entering into plea bargaining negotiations. To negotiate from strength, defense must be more knowledgeable as to the facts and legal issues in the case than the prosecutor.

Of course, common sense is also important. If, for example, the rule followed in the local court is that first-time offenders charged with driving under the influence whose BAC is below .15 percent are permitted, as a matter of course, to plead guilty to reckless driving (or driving while ability impaired or a similar specified lesser offense) and to no other offense, then it will usually serve no purpose to spend the time and resources necessary to prepare the case for trial if the defendant is a first-time offender and wishes to plea bargain. Especially in states where a “no contest” plea does not constitute a conviction for certain purposes (including enhancement), defense counsel should seek to enter such a plea in lieu of a guilty plea.