A Blaine County man who pleaded guilty to a misdemeanor after first being charged with felony DUI will spend 10 total days in jail for the offense, a magistrate judge determined Thursday.
Francisco Herrera, 26, was given the mandatory minimum sentence for a second DUI offense by Judge Mark Ingram: 10 days in county jail, two years of probation and a compulsory treatment class. Herrera’s arrest in October 2019 marked his third DUI in 10 years, with previous arrests occurring in 2013 and 2015—making his most recent offense a felony under state law.
“I didn’t care before, I didn’t do anything about it before,” Herrera said in Thursday’s hearing, referring to his previous DUI convictions. “This time around, I wanted to do everything in my power, everything I could to really try to get the best solution out of this.”
Herrera was pulled over by a Hailey police officer on the night of Oct. 16 because one of his headlights was not working, according to a probable-cause affidavit written by the arresting officer. The officer conducted a series of field sobriety tests after smelling alcohol and noticing that Herrera’s eyes were “red and glassy,” according to the affidavit; a breathalyzer test showed Herrera had a BAC of 0.098, above the legal limit of 0.08.
While searching Herrera’s vehicle, officers found a semi-automatic pistol registered to him, resulting in an additional misdemeanor charge of possession of a firearm while under the influence.
On Feb. 4, an amended complaint was filed in court removing the firearm charge and reducing the felony DUI charge to a misdemeanor.
Under his initial felony DUI charge, Herrera would have faced a minimum of 30 days and up to five years behind bars. At Thursday’s sentencing hearing, prosecutor Matthew Fredback asked Ingram to impose the same punishment carried by a third-offense felony DUI—30 days in county jail—arguing that Herrera would still benefit from the plea agreement by avoiding a felony conviction on his record.
After a lengthy period of testimony from character witnesses, Ingram decided instead to follow public defender Justin McCarthy’s recommendation: 10 days in the county jail, with Herrera receiving credit for two of those days already served. He will be on probation for two years, with the first six months supervised, and will be required to attend a treatment class. Herrera’s sentence also included a $2,000 fine, with $1,000 suspended.