Weapons charge may help Ben Wallace avoid jail in DUI case

Pistons forward Ben Wallace, here in a November 2010 game, has been charged with drunken driving and unlawfully carrying a concealed weapon after a traffic stop.

Detroit Pistons star Ben Wallace could very well avoid jail time for his recent drunken driving arrest because — in an ironic twist — he also had a gun with him.

Wallace likely would have faced weeks behind bars if convicted of the misdemeanor charge of drunken driving because his case is assigned to 48th District Court Judge Kim Small, known for sentencing first-time offenders to days or weeks in jail. She made headlines this summer when she sentenced former NBA player Jalen Rose to 20 days in the Oakland County Jail for first-time drunken driving, saying she was "sending a message" about the dangers of driving while intoxicated.

But because Wallace has also been charged with unlawfully carrying a concealed weapon — a five-year felony, his attorney, Steven Fishman, can take the case to the Oakland County Circuit Court, where judges are much less likely to jail first-time offenders. Fishman was not available for comment Friday, but that strategy was the talk of the defense bar after Wallace's arrest.

"Everybody is saying 'What is Kim Small going to do to him?'" said defense attorney Robyn Frankel, who has handled many high-profile cases. "She won't be able to do anything to him because she is not going to get to sentence him."

Wallace's case will eventually be assigned to Oakland County Circuit Court Judge Shalena Kumar, known for her temperate and measured sentences. Under sentencing guidelines, he could face probation and fines.

"Shalina Kumar is not going to use him to make a statement," Frankel said. "She's going to follow the law and sentence him appropriately. And based on his lack of criminal activity, the level of the offense, which is rather minimal, he may walk away with probation."

Sylvan Lake defense attorney Charles Toby agreed. "Either by plea or by trial, even if he was convicted, the guidelines are such that I can't envision any prison time or even any jail time."

Wallace will still have to appear before Small on Monday for a pretrial hearing, where she is expected to set a date for a preliminary exam. If Fishman waives the exam, the case is automatically assigned to the higher court.

Wallace, 37, was in a 2007 Cadillac Escalade when he was arrested around 3 a.m. Saturday after an officer spotted his SUV driving erratically . Investigators found a magazine full of bullets for the .28-caliber FNH semiautomatic pistol in the backpack, which is registered to Wallace's wife, according to the police report.

Police said Wallace's blood alcohol level was 0.14%, above Michigan's legal limit of 0.08% to be considered drunken driving.