• Jay P. Mykytiuk
    Jay P. Mykytiuk Criminal Defense Attorney
    Washington, DC & Northern VA
    Call Today (202) 630-1522

The Use of Hearsay in Domestic Assault Trials

Like DUIs and DWIs, a domestic violence charge is often a client’s first exposure to the criminal justice system. There are wide variations of what is considered a domestic assault—from striking someone to knocking something out of his or her hand—but each type can land you in court if the police are involved.
For one reason or another, complaining witnesses in domestic assault cases often choose not to pursue the case, and decide not to cooperate with prosecutors or police. Others request that the prosecutor, “drop the charges.” And many complaining witnesses and defendants are surprised when the case goes forward against the wishes of the parties. What they often do not understand, is that it is not the complaining witness’s choice to move forward or dismiss the case. Once a case has been charged, the decision to pursue a criminal prosecution against the named defendant rests only with the prosecutor. Many times, the prosecutor will choose to dismiss a domestic violence case if the complaining witness requests it, or does not appear in court on the day of trial. But with the right combination of prosecutor and facts, a defendant may find himself on trial, even without a complaining witness.

When the government chooses to proceed in a domestic assault case without the complaining witness, the prosecution’s case generally relies on “hearsay,” testimony. Hearsay is defined as an out of court statement offered for the truth of the matter asserted. In simpler terms, it means that hearsay occurs when a person sitting in court testifies to what someone who is not in court said to them. In domestic assault cases, hearsay evidence almost always takes the form of a police officer telling the judge what the complaining witness said to him. For instance, a testifying police officer may say that when he responded to the house of the complaining witness, she told him that the defendant pushed her during an argument. That testimony is considered hearsay.

Most of the time, hearsay testimony is not allowed by the judge. However, there are many exceptions to this hearsay rule. The most common exception used in domestic violence prosecutions is called, “excited utterance.” The excited utterance exception basically says that if a person not in court makes a statement while he or she was very excited or agitated, it is likely that that statement is truthful and reliable, and can be admitted into evidence. What this looks like in domestic assault cases, is that the police officer testifies that when the complaining witness claimed the defendant assaulted her, she was yelling or crying, or in some other way excited. If the judge believes the officer’s testimony, and your criminal defense attorney is unable to persuade him otherwise, then the officer’s testimony is allowed into evidence.

There is nothing more baffling or frustrating to a domestic assault defendant then when he is convicted of assaulting someone who never even bothered showing up to court. But the law and practice in Washington, D.C. and Virginia allows this to happen. Your Washington, D.C. or Virginia criminal defense attorney will make you aware of this possibility, and will negotiate with the prosecutor to keep this case out of the courtroom. If that fails, he will fight to keep hearsay evidence out of your case, and  increase your chances of a not guilty verdict.

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To Blow or Not to Blow: Implied Consent and DUI Arrests

As a DC and Virginia DUI lawyer, one of the most common questions I get from clients charged with drunk driving is whether they should have agreed to take the breath test, after they are arrested. “To blow,” as it is commonly referred to, means to submit two breath samples to the police by blowing into a machine that attempts to measure the amount of alcohol in your bloodstream. This is done at the police station after you have been arrested for suspicion of DUI or DWI. If the breath test indicates that you have a blood alcohol concentration (BAC) of .08 or more per 210 liters of breath, then in both Washington, D.C., and Virginia you are presumed to be intoxicated.  This means that if, at trial, the prosecutor is permitted to enter your .08 or above breath test scores into evidence, you will almost undoubtedly be found guilty of DWI.

While there are certainly ways to prevent the test scores from being admitted, and your attorney will discuss those with you, the most winnable DUI and DWI cases are those in which there are no breath test scores. But for there to be no test scores, the person arrested must have decided not to participate in the breath test given by the police officer. Referred to as “refusal,” failing to submit to the breath test comes with its own consequences. In both Virginia and D.C., everyone who accepts a driver’s license agrees, by law, to submit to a breath test when arrested for DWI or DUI. This is called “implied consent.” You don’t know that you gave it at the time of receiving your license, but the law says that you did. And both D.C. and Virginia have penalties for refusing to take the breath test. In Virginia, the first time that you refuse to blow is a civil infraction, and the penalty and automatic driver’s license suspension of one year. This is the same license suspension that you receive if convicted of a Virginia DWI. But in cases of refusal, you cannot be issued a restricted driver’s license, which means that you will be finding alternative transportation to work for the next year. In the District, refusing to blow also results in a one year license suspension, with the difference being that a DMV hearing examiner will hear your case, rather than a judge. The second time you refuse to blow in Virginia is a criminal infraction, that carries a maximum penalty of up to 12 months in jail. In addition, your license will be suspended for three years.

Despite the license suspension you will most likely incur for refusing to take the breath test, there are some legal advantages to doing so. First, both D.C. and Virginia have mandatory jail time if your BAC is over a certain limit. In Virginia, mandatory time begins with a BAC of .15. In D.C. a .20 BAC or above will land you in jail. Without breath test scores, these mandatory jail times do not come into play. But the most obvious benefit of going into a D.C. or Virginia DUI trial without breath test scores, is that you have a much greater chance of winning your case. Without scores, the government is required to prove to a judge or jury that you were driving under the influence based only on the observations of the officer(s) who arrested you. This is very subjective evidence, and many officers testify poorly in court. This means that your lawyer has a better chance of convincing a judge that you are not guilty, than if “scientific” evidence is presented.

By the time you talk to your lawyer about your D.C. or Virginia DUI or DWI case, your decision to blow or not to blow is in the past. Your lawyer will work with what he has, and provide you with the advice that fits the particular circumstances of your case.

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