Carly Rousso’s attorney will seek probation for his client. Will she get it?

According to news reports, Carly Rousso’s attorney will seek probation for his client.

Under Illinois law, a person who is found guilty of an aggravated DUI resulting in the death of one person shall receive anywhere from three to fourteen years “unless the court determines that extraordinary circumstances exist and require probation” 625 ILCS 5/11-501(d)(2)(G).

What “extraordinary circumstances” would require probation?  The statute does not give us an answer, and the few court opinions dealing with the issue have not helped to clarify.  If anything, the courts indicate that the wording of the statute was designed to indicate that while prison is the legislature’s the preferred outcome in a DUI causing a death, it wanted to give judges the discretion to be lenient when the interests of justice so demanded.  See, People v. Winningham and People v. Vasquez.  A good hypothetical example might be when the drunk driver was seriously injured as a result of the collision, or the victim was a close relation or the victim’s family was in favor of probation.

Obviously, Douglas Zeit, Rousso’s attorney, was hoping to avoid having to deal with this issue when he tried in vain to have his client plead guilty to reckless homicide in return for the State’s Attorney agreeing to dismiss the aggravated DUI charge.  When that didn’t happen, Rousso still plead guilty to reckless homicide, which is probationable, but went to trial on the aggravated DUI case.  The defense hinged on the issue of whether the cleaning fumes that Ms. Rousso was “huffing” prior to the fatal accident was a substance that was a substance that was covered by Illinois’ DUI statutes.  Although they lost on this issue, Judge Booras indicated that he felt that it was quite possible that there might be a different result on appeal.

Will Mr. Zeit be able to convice Judge Booras that Rousso’s case involves extraordinary circumstances sufficient to support probation?  I would assume that Mr. Zeit will argue that Rousso’s lack of any other arrest, her youth, her subsequent substance abuse treatment, her successful period of a year and a half of pre-trial services (which almost certainly has required weekly urinalysis), her regret for this incident and the settlement of victim’s family’s wrongful death claim are all “extra-ordinary circumstances.”  Possibly Mr. Zeit will also argue that the law was vague about the “huffing” chemicals, and that the conviction may be overturned on appeal.

Personally, I feel that these factors are not extra-ordinary enough to result in probation, even if they are mitigating factors that may help Rousso get a sentence closer to three years as opposed to fourteen.  My best guess is a sentence somewhere in the range of four to seven years, although I would not be surprised if she received as much as ten years.

However, Judge Booras’ decision to allow Rousso to remain on bond pending sentencing, along with his comments indicating that he felt that Zeit had made a strong argument as to whether the huffing chemicals fell under the DUI statute, make me wonder whether the Judge is leaning towards probation.

That is the way it is with legal proceedings.  Even experienced litigators can only make an educated guess about what will happen in court. That is why so many cases are resolved through a settlement or plea negotiation — so that the parties can avoid the uncertainty that occurs when you are waiting for a judge or jury to decide.

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