DC DUI lawyer

  • Common Questions If You've Been Arrested For Washington, D.C. DUI, Part II

    You have a lot of questions if you've been arrested for DUI in Washington, D.C. or Northern Virginia. This is Part II of the answers I hope will help alleviate the confusion.

    Will medications cause me to “fail” the breath test?

    Generally, no. The breath test only measures the amount of alcohol in your blood, nothing more. So if you took pain medication, blood pressure pills, sleeping pills, etc., your breath test would not be affected in any way. However, depending on which medication you’ve taken, it may affect your performance on the Field Sobriety Tests, and your general appearance and demeanor. Be sure to tell your D.C. DUI lawyer if you took any medication prior to being arrested.

    Is there any way to avoid a D.C. DUI conviction without going to trial?

    In a very small number of cases, your D.C. DUI lawyer may be able to negotiate a diversion agreement with the prosecutor. This agreement is called a Deferred Sentencing Agreement (DSA), and is the only diversion option offered by the government in DUI cases. First, it requires the defendant to enter a plea of guilty to the charge. After the plea is entered, the Defendant must satisfy several conditions. These conditions can be negotiated, but usually include completing community service, a traffic safety program, a victim impact panel, and an alcohol traffic program. If all of the conditions are met, the Defendant is permitted to withdraw his or her guilty plea, and the DUI charge is dismissed.

    The officer who arrested me never read me my rights. Will my case be dismissed?

    Contrary to what many people believe, not having your Miranda rights read to you does not result in your case being dismissed. The purpose of Miranda rights is to advise defendants of their right to remain silent. When the police fail to do that, any statements made by that defendant cannot be admitted into evidence at trial. So if you admitted to having four shots after you’ve been arrested for DUI, but the officer never read you your rights, then that statement may not be used against you if your case goes to trial. For more on Miranda rights, read my previous blog post here.

    Why did I get arrested even though I passed the Field Sobriety Tests?

    Well, chances are there is a difference of opinion between you and the police officer as to whether or not you passed the FSTs. As a D.C. DUI attorney, I’ve had many clients tell me that they did very well on the FSTs, only to read a very different story in the officer’s police report. The problem is that it takes very little to “fail” these tests. For instance if you raise your arms during the walk-and-turn test, sway on any of the steps, and step off the line even once during the nine steps, the officer will call this a failure. Fortunately, at your trial, your DUI lawyer will have the police officer point out all of the good things you did correctly during the tests. “Failure” of the tests in the officer’s mind may not be failure in the judge’s or jury’s minds.

    I took the breath test, and my results showed a Blood Alcohol Content (BAC) of .08 or over. Am I automatically guilty of DUI?

    Few things are automatic in DUI cases. Although a test score of .08 or higher creates a presumption that a defendant was driving under the influence, the prosecutor has get this test result admitted into evidence. Your D.C. DUI lawyer will put a lot of effort into preventing that. That means requesting pages and pages of records of the testing machine to ensure that it was working properly. It also means making sure that the testing officer followed all the required procedures before, during, and after the test. Even the smallest error or oversight can cast doubt on the validity of the test, and keep the judge from admitting it into evidence.

  • Defending your Washington, D.C. DUI Charge

    If you look around the next time you are at a restaurant, bar, party, your office, or even your church, chances are you’ll see someone there who has been arrested for Driving Under the Influence (DUI). Whether you’re rich or poor, black or white, young or old, making the choice to drive after one or several drinks, may land you in jail. From the minimum wage employee to the CEO of a Fortune 500 company, drinking and driving after having one or several drinks is a temptation that affects millions of law-abiding citizens. And due to the lobbying efforts of groups like Mothers Against Drunk Driving (MADD), and the zero tolerance stance of state legislatures, the penalties for DUI continue to increase in severity. Washington, D.C. has not escaped this trend, which is bad news for D.C. DUI defendants.


    After fairly recent changes in D.C. DUI law, those charged with a first offense D.C. DUI face up to 180 days in jail, and/or a $1000 fine. If you submit to a breath test, and your blood alcohol content (BAC) is between .20 and .25, you face a mandatory minimum jail time of 10 days. If your BAC is over .25, you will serve at least 15 days if convicted. In addition, your privilege to drive in the District of Columbia will be suspended for at least six months. Refusing to submit to the breath test will result in a 12 month suspension of your D.C. license. Penalties increase for second and subsequent DC DUI offenses , regardless of your BAC.


    But while DUI is a criminal offense, simply drinking before driving is not per se illegal. As your D.C. DUI lawyer will advise you, arresting you for DUI, and convicting you of DUI are two very different things. In order to convict you of DUI in the District of Columbia, the government is required to prove beyond a reasonable doubt that you were driving while under the influence of alcohol or drugs. They can do this in two ways: 1) by showing that your BAC was .08 or higher, or that you were driving with any amount of certain drugs in your system; and 2) by showing that your driving behavior and/or performance of the field sobriety tests indicate(s) that you were driving under the influence.


    Your experienced D.C. DUI lawyer will defend you against both methods of proving your guilt. If breath test scores are available, your lawyer will obtain all the available information about the breath test machine to ensure that it was working properly on and before the night your test was given. Your lawyer will also make sure that the test was administered properly, and that the officer who operated the breath test machine was qualified to do so. The ultimate goal of your DUI lawyer is to prevent your breath test scores from being admitted into evidence.


    While it is possible to keep breath test scores out of your case, your chances of winning at trial increase dramatically if there are no breath test scores available. Without the “scientific” evidence, the government will have a more difficult time proving that you were driving under the influence. That’s because the government’s case will be based solely on the observations of the police officer or officers who had contact with you before, during, and immediately after your arrest. They will testify mainly about your driving behavior, your appearance, your demeanor, and your performance on the battery of road side tests. This testimony will be 100% subjective, and your DC DUI lawyer will conduct a thorough and aggressive cross-examination of these officers. My next blog post will discuss the most common aspects of officers’ DUI testimony, and how your experienced D.C. DUI lawyer will attack it.

  • Ins, Outs, and What Have Yous: Collateral Consequences of a Washington, D.C. DUI Conviction

     

    Being arrested for DUI in Washington, D.C. is a miserable experience. It usually starts with a night in jail, followed by a trip to the impound lot to retrieve your car. Next comes your first trip to court, (maybe ever, for some) during which you are confused and perhaps a little frightened. Depending on your individual facts and circumstances, you may be subject to certain release conditions, including drug testing, substance abuse counseling, and/or weekly reporting to pretrial services. Now it’s time to find a D.C. DUI lawyer, and choosing the right one can be a daunting process. 

     

    Once you have a D.C. DUI attorney, the first thing you will want to know is whether you are going to jail. That’s understandable, since most people arrested for DUI in D.C. have never spent a day in jail, and the very prospect may be inconceivable.  Whether jail time is a possibility in your case depends on many different factors. Those include whether you have been convicted of DUI in the past, whether there was an accident, whether anyone was injured, whether you took a breath or urine test, and most importantly, whether the government can prove that you were driving under the influence. But while most defendants worry most about jail, there are other collateral consequences of a DUI conviction that are more likely and very burdensome.

     

    What defendants also worry about is whether a Washington, D.C. DUI conviction will cause their driver’s license to be suspended. The short answer is yes, but it’s more complicated than that. When you are arrested for a DUI in Washington, D.C., the arresting officer usually submits notice to the DMV informing them of your arrest. If you are licensed to drive in D.C., you have 10 days to request a hearing at the DMV. If you do not request a hearing within the 10 days, your license will automatically be suspended.  If that happens, it will be difficult to undo it, even if you are found not guilty of DUI. The length of the suspension depends on whether you also refused to take a breath test or submit a urine sample.  The normal suspension in D.C. for a first DUI offense is 6 months. But if it is found that you refused to submit to a chemical test, the suspension will be for one year.

     

    If you are licensed in a state other than Washington, D.C., you have 15 days to request a hearing at the D.C. DMV. If you fail to do so, or if you are eventually convicted of DUI, the D.C. DMV can only suspend your privilege to drive in the District, not your driver’s license. However, most states will also suspend your license once your conviction is reported to them by D.C. Although occasionally drivers slip through the cracks, you can generally count on your license eventually being suspended if you are convicted of a Washington, D.C. DUI.

     

    Perhaps the most pernicious hidden cost of a Washington D.C. DUI conviction is your time. Those convicted of a D.C. will, in almost every case, be placed on supervised probation. Conditions of probation will include attending a Victim Impact Panel, completing an on-line Traffic Safety Program, and a series of Traffic Alcohol Program classes. In addition, your probation officer may determine that you need additional alcohol and/or drug counseling. All of this takes time away from your job, your family, or whatever else you'd rather be doing.

     

    Suffering a Washington, D.C. DUI conviction has significant consequences beyond potential jail time. Because the stakes are so high, your DUI attorney should make sure you understand the implications of taking a plea deal or going to trial.

  • Not Guilty: This is Why We Try Washington, D.C. DUI Cases

    At first glance, the facts looked bad. The Officer’s police report indicated that the client had red, bloodshot eyes, and smelled of alcohol. On the Field Sobriety Tests, the defendant “failed” the Horizontal Gaze Nystagmus (HGN) test and the officer stopped the Walk and Turn Test for the “suspect’s safety,” after she stumbled and almost fell. In court, the arresting officer testified that the defendant smelled of alcohol, and used the car for balance. He believed she was drunk, so he placed her under arrest, and gave her a breath test back at the station. How surprised do you think the officer was when the breath test came back with a 0.0 reading? Maybe a little?

    But because PCP was found in my client’s car, a blood test was also taken that came up positive for PCP. However, for some reason or another, the government never introduced the test results at trial. Instead, they chose to rely on the testimony of the officers on the scene regarding my client’s behavior. But here was the government's problem: the arresting officer continued to assert that my client seemed to be under the influence of alcohol, even though the breath test clearly showed otherwise. Although the prosecutor was trying to make a case for DUI PCP, the officer didn’t seem to be on the same page. When cross-examined, the officer admitted that he didn’t witness one single symptom of PCP usage displayed by my client.

    In my closing argument, I urged the judge to find my client not guilty of DUI, based on the 0.0 breath test score, and the lack of testimony that my client showed any signs of having used PCP. And she agreed. What the prosecutor thought was a slam-dunk case, turned out to be a surprising loss. And this is why it often makes sense to go to trial on Washington, D.C. DUI charges.

    While the choice to accept a plea offer or go to trial belongs solely to a defendant, your D.C. DUI lawyer can help you make an informed decision based on his or her experience with these types of cases. Facts that often look bad can result in not guilty verdicts in certain cases. This is often caused by prosecutors having too many cases to pay attention to the details of yours. But sometimes your lawyer will urge you to take a case to trial just because you have nothing to lose. Prosecutors rarely make a plea offer in a Washington, D.C. DUI case that is compelling enough to take. Sometimes, mandatory minimum jail times make it a no-brainer that a case should be tried. And even if the offer includes no jail time, your D.C. criminal lawyer will likely know whether your judge would even consider a jail sentence if you lost at trial.

    Of course, the facts and circumstances of each case are different. That means that going to trial or taking a plea offer is a personal decision made after consultation with your DUI attorney. Defendants often have personal reasons why they might wish to take a plea offer, and your lawyer will respect those. In addition, a plea offer will occasionally be good enough to consider, making a trial an unnecessary risk.

  • Sticker Shock: The Cost of a Washington, D.C. Criminal Defense Lawyer

    You may have noticed that finding how much a criminal defense lawyer costs is one of the few things that’s very difficult to find on-line. And you aren’t necessarily going to get the answer by reading this blog. Even as I write this, I’m not sure that writing about the cost of a D.C. criminal defense lawyer is a good idea. It’s a subject few lawyers feel comfortable talking about with clients unless those clients are sitting across from us in our offices. And to be honest, it’s my least favorite part of a consultation. Watching a potential client’s eyes widen in disbelief when I tell them how much their DUI or Solicitation of prostitution defense will cost them gives me no pleasure. Quoting the cost of a serious felony or a Federal criminal defense is even less pleasant. Because the truth is, D.C. criminal defense is expensive, and nobody likes to pay for it.

    No matter how serious the criminal charge, one of the first questions a potential client asks me on the phone is, “what is your fee.” And that makes sense, because 1) you probably have never hired a lawyer before, and have absolutely no idea how much one costs; and 2) you want to know how much this is going to hurt. The truth is, no one expects to be arrested. No one has a rainy day fund set aside for the possibility of getting an assault charge from a bar fight, a DUI on your way home from an Arlington bar, or a panic-caused hit and run. Most Americans have no savings and very little room left on their credit cards. So of course they’re worried about the cost.

    But providing a quote for a Washington, D.C. or Arlington DUI, or a Virginia Grand larceny case is almost impossible to do over the phone. That’s because the facts of every criminal case are different, and the facts determine how much work your defense lawyer will have to do. And the amount of work your lawyer has to do determines the cost of a quality criminal defense. Think of it this way: if you got in a car accident, and wanted to know how much it’s going to cost you to get your car fixed, you can’t just call up your local auto body shop and get a quote. You’ve got to bring the car in and let them have a look. Does it need new parts? How many and which ones? Is there damage to the frame or undercarriage? Every car accident is different, just like every case is different. To give you a quote, I’m going to need to look at the car first.

    That being said, it’s not impossible to give you a price range on many cases. I know that I will likely charge between $1500 and $2000 for a Solicitation of prostitution defense. Because a DUI in Washington, D.C. is a lot of work, I will likely quote you between $2500 and $4000. But throw in a second charge of hit and run, (D.C. calls it Leaving after Colliding), and it might be as much as $5000. Defending a Civil Protection Order (this is not criminal, but read why it might as well be) will cost probably costs between $1500 and $3000.

    Most lawyers can estimate the costs of a misdemeanor defense, because these cases tend to be more predictable. But if you have a Washington, D.C. or Northern Virginia felony, the nature of these cases make guessing difficult and a little reckless. Felony jury trials are time and labor intensive and you can expect to pay upwards of $10,000 or more. Sometimes much more.

    I suppose the conventional wisdom advises against having written this blog. But if having an idea of what it will cost to hire me to defend your D.C. area criminal charge reduces your sticker shock, I think it’s probably worth it. I’m a fan of full disclosure, especially if it saves us both some time.

    Now I know that most clients’ first question is what their defense will cost them. But the question they don’t usually ask, even though they’re probably thinking it, is “what do I get for my money.” When you buy a car, you get to drive it home. When you buy a new phone, you get to stare at it while you walk down the sidewalk bumping into people. But what you get in a criminal defense is slightly more intangible. Your attorney will never promise you a result. Even if it was ethically permissible to tell you that your money would buy a not-guilty verdict or a dismissal, any lawyer who made that promise would be lying more than half the time. What you get is the best result that lawyer is capable of getting you. What you get are honest opinions about what your likely outcome is. What you get is someone to guide you through the dauntingly complicated criminal justice system, and some hand-holding if you need it. And hopefully, you get a lawyer you can trust.

  • Taking the Gloves Off: Good Things Can Happen When You Go To Trial

    While serious felonies get all the press—think armed robbery, rape, murder—a criminal defense lawyer in Washington, D.C. spends the bulk of his time defending misdemeanors. These include assault, domestic or otherwise, driving under the influence (DUI), hit and run, solicitation of prostitution, petty theft, drug possession cases, and the like.  For many defendants, this is their first contact with the criminal justice system. That’s good, because first time offenders, if convicted, are very often sentenced to probation.

    But for many defendants, jail time isn’t their only, or even primary concern. A criminal conviction can result in termination of employment and can make finding a new job difficult. Many Washington, D.C. employees have security clearances, and a criminal conviction may cause that clearance to be revoked. And finally, there is a psychological component to having a criminal conviction that many people have trouble dealing with.

  • The Devil is in the Details: Deferred Sentencing Agreements in Washington, D.C. Driving Under the Influence (DUI) Cases

    In general, plea offers made in Washington, D.C. DUI cases aren’t worth the paper they‘re printed on. They essentially consist of inviting the DUI defendant to plead guilty to DUI. For a first offense without an elevated blood alcohol content or the presence of illegal drugs, the prosecutor almost always indicates that they will be seeking probation. That’s great, since no one wants to go to jail, but in reality it’s very unlikely that a D.C. judge is going to impose jail time on a run-of-the mill first offense DUI, anyway. Therefore, a plea offer that has the DUI defendant pleading guilty to DUI and the government asking for probation, isn’t really much of a plea offer at all. It offers virtually no incentive for a defendant to plead guilty early in the case, and almost every serious DUI lawyer will urge his client to reject the plea and schedule the case for trial.

    Occasionally, however, the facts of a particular D.C. DUI case are such that a plea agreement is worth seeking and/or considering. For a first time offender, the most desirable disposition may be what is called a Deferred Sentencing Agreement (DSA). Offered only in certain cases, a DSA allows a DUI defendant to avoid a DUI conviction if he or she accomplishes the tasks outlined in the agreement. Usually this includes the completion of community service, a Victim Impact Panel, an Alcohol Safety Program, and a contribution to the Victim of Violent Crimes Fund.  If the DUI defendant successfully completes everything, the case is dismissed.

    There are several important things to know about a DSA in Washington, D.C.  First, it requires a defendant to enter a plea of guilty to DUI. After the plea is accepted by the court, the case is continued for sentencing for one year. It is during this year that the DUI defendant will complete the requirements of the agreement. If successful, when the defendant returns to court after the year elapses, he is permitted to withdraw his guilty plea, and the government dismisses the DUI case. If the defendant fails to complete the tasks, or is rearrested within the year period, then he or she will be sentenced on the DUI, and will have a conviction.

    DSA’s are only offered in a small percentage of cases, and often your Washington, D.C. DUI lawyer has to convince the prosecutor that your case merits such an offer. Since D.C. prosecutors are generally overburdened and therefore not always good communicators, this sometimes means multiple emails and phone calls are required from your DUI lawyer. In addition, a DSA is almost never available to defendants who refused the breath test or who blew over a .10. Finally, in almost no cases are defendants with previous DUI convictions eligible for this agreement.

    Even if a DSA is offered to a Washington D.C. DUI defendant, you and your lawyer need to decide if this agreement is right for you. Although a defendant who successfully completes the agreement does not have a DUI conviction on her record, there still may be consequences. Depending on your occupation, the entry of a guilty plea (even if it is eventually withdrawn), may cause problems with your employer. In addition, if you are licensed to drive in the District of Columbia, the guilty plea may or may not trigger a driver’s license suspension. The D.C. DMV is inconsistent about when they do or do not issue a suspension, but I tell all of my DSA recipients to be aware of the possibility.  Finally, failure to complete a DSA essentially means that you have plead guilty and been sentenced on a DUI. So defendants should think long and hard about whether they will be diligent enough to reap the benefit of the agreement.

    Like with any plea agreement, whether to enter into a DSA requires an in-depth understanding of the facts of your case and the possible consequences of your decision.

  • The Devil is in the Details: Proving (or not) DUI at Trial

    “I observed a strong odor of alcohol emanating from the driver, and he had bloodshot, glassy eyes.” If I had a dollar for every time I read that quote in a DUI police report, I wouldn’t have to spend my time writing blog posts. Life for Washington, D.C. and Northern Virginia DUI lawyers is nothing if not predictable.  No matter what details an arresting officer puts in his report, they always boil down to this: the driver looked drunk, smelled drunk, sounded drunk, and acted drunk. Apparently the officer could be blind or deaf, but still decide the driver was driving under the influence. And well, sometimes they’re right. But sometimes, and very often, they’re dead wrong. Regardless, the police report generally reads the same.

    So if an officer takes the stand at trial, and testifies that the DUI defendant was drunk, drunk, drunkedy, drunk, that’s the end of story, guilty verdict, dui conviction, walking to work, right? Not so fast. Because the devil, as they say, is in the details. And in D.C. DUI cases, the details are everything, because a police officer cannot simply take the stand at trial and give the opinion that the driver was drunk, and was therefore under the influence. The officer can only testify to what he observed, from the time he first saw the DUI defendant in the car, to the time that defendant gets locked in a cell. The judge or jury will only get to hear about the officer’s observations, and only they get to decide whether the driver was under the influence.

    The observations that the arresting officer will testify to can be divided in 3 categories: 1) driving behavior; 2) attitude, appearance, and demeanor, and; 3) performance on the field sobriety tests. What causes an officer to stop a DUI defendant is very important. Reasons that help your case include, broken taillight, fuzzy dice hanging from the rearview mirror, tinted windows, and very minor traffic offenses. Reasons that hurt your case are driving at night without headlights, weaving, driving way too slowly, and vomiting out your window. Running into something doesn’t help your case either.

    Next, the officer will testify about what he witnessed after he approached your car. How did you look, how, did you smell, how did you act. Did you have trouble getting your license out of your purse or wallet, or getting your registration out of the glove compartment? When asked to exit your car, did you glide like a supermodel, or did you fall on your face. It matters. And through it all, were you pleasant and cooperative, or did you curse like a sailor? Everything you did, and everything you said will come out in court.

    Whether they should or not (and a future blog will discuss this), judges give perhaps the most weight to the officer’s testimony regarding a DUI defendant’s performance on the Field Sobriety Tests. The three standard FST’s given by officers are the Horizontal Gaze Nystagmus, Walk and Turn, and One-legged stand. The first test requires you to follow the officer’s finger or pencil with your eyes. He is looking for your eyes to behave in a certain way, and will claim in court that the behavior indicates intoxication. It doesn’t necessarily, but that’s what the officer will say. Next, the officer will have you walk on a real or imaginary line, with your hands at your side. He’ll ask you to turn around, and walk back. Any misstep will be used as evidence that you are intoxicated. You may not be intoxicated, but again, the officer will testify otherwise. Finally, you will be asked to balance on one leg for a period of time. If you sway, put your foot down, or fail to put your arms in the right place, you guessed it, the officer will say you’re drunk.

    Fortunately, your experienced D.C. DUI lawyer will be with you at trial, and will get a chance to ask the officer much more detailed questions about his observations than he is comfortable answering. Your lawyer will bring out the good facts about your behavior, appearance, and FST performance, and the judge will get the other side of the story. More on that, coming soon. . .

  • Up in Smoke? Marijuana Decriminalization and DUI

     

    As of Thursday, July 17, 2014, it is no longer a criminal offense to possess an ounce or less of marijuanain the District of Columbia. Perhaps more importantly, police can no longer claim that they have reasonable suspicion to stop and search a person based on the smell of burnt or unburnt marijuana. Prior to this change, MPD officers often relied on their seemingly super-powered sense of smell to justify pat-downs of countless young black males in Washington, D.C. Often these searches led to the discovery of other illegal contraband, and led to criminal charges more serious than possession of a joint or two. Now, however, even if you rub a dime-bag all over your body and hair until you smell like a grow-house, MPD has no choice but to let you go on your merry way. Incidentally, that doesn’t mean that police can’t approach you and ask for your permission to conduct a search or pat-down. But of course, we all know that the answer to that request under EVERY circumstance is a very firm “no thank you.”


    The new law, however, does not apply to police investigation of a Washington, D.C. DUI. What does that mean for those driving around with their decriminalized bag of weed in their glove compartment or center console? That depends. Decriminalization obviously does not mean that one can drive around D.C. city streets while high on marijuana. That is, and will always be illegal, and will earn you a DUI arrest, and a stern, well-deserved scolding from your mother. Taking that into account, the new D.C. marijuana statute allows police officers to further investigate a possible DUI based on the smell of marijuana in a vehicle (or watercraft, for you pot-smoking boat owners). So if you are pulled over in Washington, D.C. , and Officer Friendly thinks you might be driving under the influence, the smell of marijuana in your car will likely justify a search. Anything illegal he finds during that search will be considered lawfully obtained, including more than the decriminalized one ounce of marijuana. Moreover, if marijuana is discovered, and the officer believes he has probable cause to arrest you for DUI, it is very likely that you will be asked to provide a urine sample back at the station. A positive test for marijuana will land you in court, and you should probably start looking for a Washington, D.C. DUI lawyer.

    It remains to be seen what impact the new law will have on D.C. traffic stops. Will MPD officers continue to use the smell of marijuana in a car to justify a search, even in the absence of legitimate DUI suspicion? Will judges throw out evidence discovered in these searches if they believe that police are using DUI as a pretext for the search? There are a lot of unanswered questions, but one thing you can be sure of: D.C. will continue to vigorously prosecute DUIs, and police will continue to find any reason they can to search your car when they conduct a traffic stop. Knowing the law, your rights, and an experienced Washington, D.C. DUI lawyer will give you the best chance of staying out of serious legal trouble.

  • Video Killed the Radio Star: Court Tells Prosecutors They Must Preserve Video in Washington, D.C. DUI Cases

    The District of Columbia Court of Appeals recently issued an important decision for Washington, D.C. DUI lawyers and their clients. In the case of Koonce v. District of Columbia, the Court put the D.C. Attorney General’s Office on notice that failing to preserve station house video of a DUI defendant will constitute a discovery violation in Washington, D.C. DUI cases. But let’s back up . . .

    Washington, D.C. DUI lawyers routinely request all video recordings in every case. That video may be store surveillance footage in shoplifting cases, or club camera video in assault cases. In DUI cases, however, the most common video comes from cameras in MPD station houses. This video usually shows a DUI defendant entering the station, interacting with the police officers, and hanging out in the cell. Why is this important? Because in DUI cases, the police report almost always describes the defendant as stumbling, falling, nodding off, or otherwise acting in a drunken matter. But what the station house video often shows is a defendant doing what he’s told, and walking and behaving in a normal manner. That can be powerful evidence to combat what we will call a police officer’s ,“exaggerations.”

    So if video exists, the police should provide it to the prosecutor, who should, in turn, provide it to a defendant, right? Well, yes, but what should happen is rarely what does happen.  As observed in the Koonce case, the MPD has a policy of taping over their station house video every 30 days. If the prosecutor does not contact them to request the video of a D.C. DUI defendant, then the video is simply destroyed. And for some reason, the D.C. Attorney General’s Office doesn’t simply request the video in every DUI case.  After the Court’s decision, however, that practice will likely change.

    The Koonce decision is based on the District of Columbia Superior Court Criminal Rules, specifically, Rule 16. The test under the rule as to which materials the government must turn-over to a defendant’s lawyer is whether the evidence is “material to the preparation of a defendant’s defense.” In addition, any items in the possession of the government that are considered to be material must be preserved by the government. To paraphrase the court in Koonce, it’s tough to argue that video showing a Washington, D.C. DUI defendant’s appearance and actions soon after his arrest is not “material to the defense.”

    Prior to the new ruling, skilled Washington, D.C. DUI attorneys were already making a big deal over station house video. We would routinely request it at arraignment, and yell our heads off if it wasn’t provided by the status hearing. Remedies for this discovery violation ranged from preventing breath test scores or toxicology reports from being admitted into evidence, to out-right dismissal of the case. But each judge treated the issue differently, and not all judges believed the government committed a violation by failing to preserve the video. After Koonce, however, judges must acknowledge the government’s duty to preserve and disclose station house evidence in DUI cases.

    Your Washington, D.C. DUI lawyer should request all video in your case, and make sure the government meets its obligation. While they are now on notice, that doesn’t mean that they won’t slip up. And if they do, your attorney should be ready to pounce.

  • Washington D.C. DUI Diversion: The Cost of a Clean Slate

    If  you’ve been arrested for DUI in Washington, D.C., you probably started worrying about the consequences as soon as the handcuffs went on. Will I go to jail? Will I lose my driver’s license? Will this be on my record? If you are a Legal Permanent Resident, or have some other non-citizen immigration status, you are also worried about your ability to stay in the United States. The answers to all your questions are as different as the facts of your case.

    Not all DUIs are created equal. Some involve accidents with property damage or physical injuries. Sometimes the defendant agrees to blow or give a urine sample, and sometimes they refuse. Performance on field sobriety tests varies from almost perfect to literally falling down drunk. While all of these differences play a big part at trial, they also help determine whether your D.C. DUI lawyer is going to be able to get you a diversion offer. But more importantly, the facts of your case determine whether your lawyer should even seek diversion.

    To understand diversion better, it helps to know what the possible outcomes are in your Washington, D.C. DUI case. These outcomes are actually fairly simple, and include 1) accepting a plea offer from the government, and entering a plea of guilty; 2) rejecting the government’s plea offer, and having a trial before a judge; or 3) accepting a diversion offer, and eventually having your case dismissed.

    Generally, the best case scenario is that your case goes to trial, and either it gets dismissed, because the government isn’t ready for trial on the trial date, or a trial is held and the judge finds you not guilty. In that scenario, your case is over, you do not have a conviction on your record, and you can go back to your life. But regardless of who your DUI lawyer is, the outcome of your case is usually determined by the facts. Generally, if the police report says that you reeked of alcohol, that you slurred your speech, that you fell down several times while performing the field sobriety tests, and that you had an open bottle of Jack Daniels in your car, your case may not be a prime candidate for trial. But that doesn’t mean that you should plead guilty, either.

    In my experience, if your Washington, D.C. DUI doesn’t include a serious car accident, and your breath test scores (if they exist) aren’t off the charts, a diversion agreement can be negotiated. By far the most common diversion agreement available in Washington, D.C. DUI cases is a Deferred Sentencing Agreement (DSA).  The most important and beneficial part of a DSA is that, if you satisfy all the conditions of the agreement, your case will ultimately be dismissed by the government. But that dismissal  requires you to jump through some hoops.

    First, in order to enter the DSA agreement, you have to enter a plea of guilty. That means standing before the judge and admitting that you were operating your vehicle under the influence. If you believe you weren’t, then saying you were is no easy thing.  But if you get through it, you will have several things to accomplish in the next 12 months, including community service (usually 5 days), an online Traffic Safety Program, a Victim Impact Panel, and a more intensive Alcohol Traffic Program.  You will also be required to make a $150 contribution to the Victims of Violent Crime Fraud, required by any defendant who enters a guilty plea in D.C. Superior Court. In addition, the D.C. DMV may suspend your driver’s license for 6 months, based on your guilty plea. Sometimes they do, sometimes they don’t.

    In the end, satisfying the requirements of a DSA can be time-consuming and expensive. Yet, if you are convicted of DUI in Washington, D.C., you will not only have to fulfill the same requirements (minus the community service, usually), but you will also have a DUI conviction on your record. Plus, you will likely be on supervised probation. But keep in mind, if you fail to satisfy the DSA agreement, instead of having your cases dismissed in 12 months, you will be sentenced, as if you had simply been convicted.

    The decision to enter into a diversion agreement should be discussed with your D.C. DUI lawyer. Your lawyer will advise you if a DSA is a possibility in your case, or whether you should take your case to trial. If you have been arrested for DUI in Washington, D.C., contact Jay Mykytiuk at JPMLegalfor a free in-office consultation.

  • What Now: Common Questions If You’ve Been Arrested for Washington, D.C. DUI, Part I

    Getting arrested and charged with a DUI in Washington, D.C. can be a scary and confusing experience. You may be wondering whether you need a D.C. DUI lawyer, or if you can handle this by yourself. Either way, you’ve got questions, and these answers will hopefully help you make an informed decision.

    I’ve Been Arrested for DUI, what happens next?

    If you were arrested for DUI but released from the Police Department, you will appear in court on the date indicated on your citation. That court date will be your arraignment, at which time your lawyer will enter a not-guilty plea on your behalf, and request another court date. You will not plead guilty or have a trial on your first court date. Ever.

    The Police Officer made me take a series of tests. What were they for?

    Chances are, if you were arrested and charged with DUI in Washington, D.C., the officer who stopped you asked you to complete three different “tests.” These are called Field Sobriety Tests (FSTs), and usually include the following: the Horizontal Gaze Nystagmus Test, the Walk-and-Turn, and the One-Legged Stand. According to the National Highway Traffic Safety Administration (NHTSA), if administered correctly, these tests indicate whether a driver is under the influence of alcohol. According to DUI lawyers, they don’t indicate anything, even when the cops don’t screw them up.  At trial, your lawyer will try to convince the judge of this.

    I refused to blow into the machine at the police station. Does this help or hurt my case?

    This is a complicated question, and one I’ve dedicated an entire blog to. Read that here.

    Will my license be suspended?

    That depends. If you plead guilty to DUI in Washington, D.C. or are found guilty at trial, your license will almost certainly be suspended by the DC DMV if you have a DC license, or by your home state, if your state is a part of the interstate Driver's Licence Compact. However, your license may also be suspended (or your privilege to drive in DC for out-of-state drivers)  before your case is even concluded . That’s because when you are arrested for a DC DUI, the officer is supposed to notify you and the DMV that your license will be automatically suspended if you do not request a hearing. Instructions for doing so should be included in the stack of paperwork you are given before your release.  If you fail to request the hearing, and the officer actually did notify the DMV of your arrest, you have missed your chance to fight the suspension. Don’t let that happen.

    Should I plead guilty or go to trial?

    Ah, the million dollar question. The facts of every DUI are different. But every case has facts that are good for the defendant and bad for the defendant. Your D.C. DUI lawyer will closely review your case along with the plea offer made to you by the prosecutor.  You and your lawyer will have a in-depth conversation about what your options are, and what the potential outcomes will be. At JPMLegal, I start from the presumption that we will vigorously fight the charges, and prepare for trial from day one. But a good DUI lawyer knows when negotiation is appropriate, and some cases benefit more from deal-making, than from trial. Which category you fall into depends on the unique facts of your case.

    Will I go to jail if I am convicted at trial or plead guilty?

    First-time DUI offenders in Washington, D.C. rarely get jail time, expect in the following circumstances: 1) someone is injured as a result of your DUI; 2) you take the breath test, and your blood alcohol content (BAC) is at least .20. Often it is the collateral consequences of a conviction that cause the most problems for someone convicted of DUI. These include the driver’s license suspension and the time and money spent performing the conditions of probation.