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Gumption: Prepare for the Criticism of Geno Smith's Day in Court

Alabama's youthful offender provisions for DUI provide for some level of secrecy regarding the facts of the disposition. Coupled with "just" a one-game suspension, prepare for regional/national criticism and allegations of judicial shenanigans,

Not sure this is what they meant by "lockdown corner."
Not sure this is what they meant by "lockdown corner."

Well, that was fast.

Sophomore CB Geno Smith was arrested early Sunday morning for first-offense DUI. Within 36 hours, Saban's response was felt as Smith was immediately suspended for the season opener against a Virginia Tech team whose name is more impressive than the team is apt to be. Smith was not suspended for multiple games, which would have included a visit to a Texas A&M team who served as motivation for Scott Cochran's notorious offseason strength and conditioning program.

Cue up the band, because the allegations of football-first, and predictable attacks of hypocrisy are bound to come our way. But, if you think those ham-fist HOT SPORTS TAKES are going to be bad -and, they will be, just wait until you see what happens after Geno gets his day in court. There are three options here, two of which will please the authoritarians amongst us, while the third is the most likely –and given the age of the offender, is the most rational.

Option One: Garden Variety DUI (BAC .08-.14).

This is the "girls’ night out, five glasses of wine at dinner instead of two; oh, shit, I’m going to be late to get the kids from their aunt’s house, and I got initially pulled over for speeding" kind of DUI.

Alabama Code section 32-5A-191, subsection E, first offense, non-aggravated DUI carries the following punishment:

Upon first conviction, a person violating this section shall be punished by imprisonment in the county or municipal jail for not more than one year, or by fine of not less than six hundred dollars ($600) nor more than two thousand one hundred dollars ($2,100), or by both a fine and imprisonment. In addition, on a first conviction, the Director of Public Safety shall suspend the driving privilege or driver's license of the person convicted for a period of 90 days.

Under this scenario, Geno would face a $600-$2100 fine, up to a year in the county jail, court costs and fees, and a ninety (90) day suspension of his driver's license. In the abiding majority of these "bad decision, isolated instance" DUIs, the defendant is more than likely going to get some sort of alcohol assessment and/or DUI class, a minimum fine (maybe more, if the city or county is broke), court costs and fees, and a suspension of driving privileges with a possible waiver for documented work reasons. Depending on the Defendant, what kind of mood the judge is in, and whether the brand-new assistant DA is an overcharging fool (and they usually are), the defendant may also receive a few days in jail, with that sentence suspended and no time actually served.

This is the DUI you or I would most likely receive.

Option Two: Super DUI (BAC .15+)

This is the "I’ve been drunk driving for years, Saturday night binge-drinking, I’ll never get caught-because-I-can-hold-my-liquor" super-drunk DUI. Alabama -like 40 other states now, has greatly enhanced the penalties for these kinds of DUIs that are statistically more likely to result in fatalities.

Under the aggravated DUI scenario, penalties are at least doubled. The offender loses his license for at least one year, the monetary fines are doubled, and "the minimum punishment shall be imprisonment for one year." That is a brutal punishment, but when MADD et al are talking about the deadly effects of drunk driving, this is what they were trying to target (at least until they evolved into Prohibitionists, that is).

Now, there is some small reprieve if it is a first-time DUI offense that also happens to be a Super DUI: The enhanced jail time is discretionary, and the judge may use the "garden variety DUI" penalties, including suspending the entirety of the jail time imposed, although, the doubling of fines is still in force. But, there is no obligation for a judge to do so. Here, if Smith’s BAC was exceptionally high, you lawyer up and try to get the baseline penalties for non-aggravated DUIs, and pay a very hefty fine and about $5000 in legal fees.

This is the "power-drinking frat boy with connected father, and discretionary income to spend on legal fees" DUI. For Smith, this would be the worst case scenario, and, if proven, would make a one-game suspension seem laughable. This is a reckless offense that places everyone in danger.

Option Three: Low-level, Youthful Offender DUI (BAC .02-.08).

This is your "20 year-old sophomore football player at State U is pulled over by cop after having three beers, alumni prosecutor and alumni pro bono defense counsel make a deal and present it to alumni local judge" DUI. (Or, if you’re in Baton Rouge, feel free to apply this rule to dangerous, violent felony offenses).

What if, instead of dropping the hammer, the State agrees that a kid who has never been in trouble in his life, and has made a mistake, decides not be draconian and rather agrees to punish and/or rehabilitate a minor without you, or I, or anyone else knowing the contents of that disposition? The Alabama code has you covered:

upon the first violation of this subsection by a person whose blood alcohol level is between .02 and .08, the person's driver's license or driving privilege shall be suspended for a period of 30 days in lieu of any penalties provided in subsection (e) [ED NOTE: "garden variety" DUI punishments above] of this section and there shall be no disclosure, other than to courts, law enforcement agencies, and the person's employer, by any entity or person of any information, documents, or records relating to the person's arrest, conviction, or adjudication of or finding of delinquency based on this subsection.

[the defendant] shall be fined pursuant to this section, notwithstanding any other law to the contrary, and the person shall also be required to attend and complete a DUI or substance abuse court referral program.

What does this practically mean? If you are a hypothetical 20 year old in trouble for a DUI based upon the fact that you’re not old enough to possess or consume alcohol, the State may simply take your license for 30 days, make you attend an alcohol screening and assessment, and impose a fine upon you. Moreover, since your actions would not constitute DUI if you were 21, then guess what? No one except the courts, you, your lawyer and your boss get to find out anything..and that includes down to what your actual BAC may have been at the time of the arrest or blood draw. It also happens to be the most likely outcome in this case.

In a few months, Geno Smith will have his day in court. It is more probable than not that we will never know the disposition of that case or the underlying facts: Why he was arrested, what gave rise to the probable cause for the arrest, what his BAC was or may have been, what he pleaded, and what his sentence was or will be. I'm fine with that. The national and regional media will come unhinged, be snarky, or make snide insinuations because 1. everyone thinks they are Clay Travis or Jim Rome and 2. They don't know how to read a statute.

Because the law requires secrecy and non-disclosure, Smith's likely sentencing scenario will open up the program, the Court, attorneys and local enforcement to accusations of favoritism; of football steering law enforcement away from public safety and towards wins and losses. Now, is this provision subject to scrutiny and speculation? Of course it is. Any law has a loophole or gap which can be exploited. But, was this law passed by the Alabama legislature for the benefit of 18-21 year-old college football players, or was it passed to give youthful offenders a chance to correct their behaviors without public records imputing to them a damned spot of substance abuse? Improper influence or a humane attempt to not tarnish kids as drunkards before they even begin their careers and adult lives?

Think long and hard about the purpose of the non-disclosure as Geno’s case winds its way through the courts, and as the cries of renegade behavior and all wrist-slapping hot takes drown out the airwaves. You know for a fact they are coming. But, the one thing to take away from all of this is that you should not be surprised if you know nothing more in six months than you know now. Is it nefarious? Likely not. At the end of the day, Geno’s case will probably be an application of a second-chance law that shields young people that made a mistake. It is a law that punishes without being overly punitive. It rehabilitates, by providing a shield of non-disclosure as to material facts. More importantly, it’s a second chance and a reclamation at privacy I’m sure you or I would like to have if we were in the same position.

And,it has nothing to do with football.