Sometimes in California, a criminal defendant can be sentenced for a crime without actually being convicted of the crime. How is that possible? When criminal arrests are made in the state of California, suspects often face more than one charge. One of the more common situations is a driving under the influence charge – DUI –  combined with a hit-and-run charge. Almost inevitably when DUI is combined with hit-and-run – and in a number of other instances – a prosecutor will agree to drop one of the charges if the defendant will agree to accept a “Harvey Waiver.” What is a Harvey Waiver, and what happens if a defendant accepts or rejects it?


The basic rights of every defendant charged with a crime in the United States include the right to legal counsel. No one facing any criminal charge in any of the fifty states should ever plead guilty to a crime or accept any plea bargain without first obtaining the sound legal advice of an experienced defense attorney. A defendant who accepts a Harvey Waiver may or may not be acting for or against his or her own best interests. A Harvey Waiver lets the state of California punish a defendant without the cost and work of a trial.

In southern California, anyone charged with DUI combined with hit-and-run or any other crime should discuss his or her legal options with an experienced Orange County DUI attorney. Good DUI lawyers successfully represent clients in every county in California by aggressively challenging prosecutors and working for reduced charges, dismissals, and acquittals. While an acquittal or a dismissal of charges is every defense attorney’s initial goal, negotiating some kind of plea may be the wisest option when the evidence is overwhelming against a defendant.


A Harvey Waiver allows a California court to sentence a defendant for a charge that has already been dismissed – that is, to hand down a sentence without first obtaining a conviction. Usually, a defendant may only be sentenced for a crime after actually being tried for and convicted of the crime, so when a defendant agrees to accept a Harvey Waiver, at least one charge is “officially” dropped, and the sentence for a dismissed charge is simply added to the sentence for the remaining, undismissed charge.


Additionally, if a defendant agrees to a Harvey Waiver, the same fines and restitution will have to be paid as if there had been a conviction. A Harvey Waiver entitles victims to restitution on any dismissed charge connected with the case. Crime victims in California are entitled to collect full restitution from convicted defendants even when a victim is separately reimbursed by an insurance payment.

Accepting a Harvey Waiver is not always the wrong choice for a defendant – especially if the defendant is represented by a DUI lawyer who is also an experienced, savvy negotiator. Accepting a Harvey Waiver can create a negotiating opportunity that satisfies the District Attorney and the victim or victims while allowing only one conviction to go on the defendant’s criminal record.


An immigrant charged with several crimes in Southern California, for example, might want to accept a Harvey Waiver to avoid being convicted of a charge that triggers a deportation proceeding. A single criminal conviction also keeps most defendants eligible for probation in California, and a single conviction usually makes the process of expungement easier in the future.


After a traffic accident in California, both (or all) drivers must stop, assist anyone who has been injured and provide one another with contact and insurance information. If a driver fails to stop after an accident, that driver can be prosecuted for hit-and-run without regard to which driver was actually at fault for the accident. If the police stop a motorist for hit-and-run, and the motorist is intoxicated, he or she will face multiple charges and severe consequences. In southern California, anyone in this predicament must be represented by an experienced Orange County DUI attorney.


It is seldom mentioned, but the problem with a Harvey Waiver is clear. If a Harvey Waiver allows someone to be sentenced without a trial or conviction, what happens if the defendant is innocent if the charge? How does a court know that a defendant is guilty without a trial?  That was the question in the case of 62-year-old Donnie Weatherton.  On Christmas Eve in 2011, the wheelchair-bound Weatherton shot his cleaning lady in the hand and prevented her from seeking medical treatment.

Weatherton was charged with assault with a deadly weapon with a firearm and personally inflicting great bodily injury, false imprisonment by violence and by using a firearm, and being a post-convicted felon in possession of a firearm. Weatherton entered a plea to being a post-convicted felon in possession of a firearm, and the remaining counts were dismissed.  The court then ordered Weatherton, pursuant to the plea bargain, to probation.

At a restitution hearing three months later, the court learned that the victim’s hospital and surgical expenses totaled more than $22,000. Weatherton’s attorney objected, explaining that his client had always denied causing any injury to the cleaning lady and should be considered innocent unless proven guilty. The judge overruled the objection and awarded the victim $22,141.08 from Weatherton.

Weatherton then appealed to the First Appellate District Court, where the restitution order was affirmed, and the appeal was denied. The lesson from Weatherton’s case is clear. If a California defendant signs a Harvey Waiver, the court will presume the defendant is guilty of any dismissed charges. In other words, the courts consider a Harvey Waiver the functional equivalent of a guilty plea to the dismissed charges.


DUI law in California is already exceedingly complicated, and when additional charges are combined with a DUI charge, the need for an experienced attorney’s advice and services becomes imperative. Anyone charged with DUI in California should exercise the right to remain silent, consult with a good DUI lawyer, and pay close attention if a Harvey Waiver is offered as part of a plea bargain. A good DUI attorney will know if accepting a Harvey Waiver is or is not in a client’s best long-term interests.