DC DUI

  • A Matter of Trust: On Hiring a Washington, D.C. Criminal Defense Laywer

    If you’re reading this blog, chances are you’ve been arrested, and are figuring out what to do next. You’ve probably gone to google (or maybe Bing, but that seems unlikely), and searched for “D.C. criminal defense lawyer,” or “D.C. DUI lawyer,” or “D.C. prostitution lawyer,” etc. Chances are, pages and pages of lawyers have been generated by your search, and you have no idea where to start. Ratings and reviews are nice, but almost never tell the whole story. The lawyers’ websites probably have blogs and articles about the crime you’ve been charged with, but not much about the lawyer.  But after some looking around, you may decide to call one, two, or three of the D.C. criminal defense lawyers you find. And now the fun starts.

    Many clients who call me have a hundred questions, and want them all answered over the phone. You’ll find that most lawyers, like me, prefer not to do client consultations this way.  There are several reasons. First, criminal cases have a lot of facts, and we want to hear all of them, and probably take notes. Trying to listen and take notes over telephone can be difficult, and unclear connections make things even harder. Second, lawyers generally do not run free legal advice hotlines. Many of us offer free consultations, but this offer assumes that the person seeking our advice is serious about hiring legal representation. A person who can’t be bothered to come into my office and sit down with me for half an hour probably isn’t that serious about hiring me. They want free advice, but the reality is that free advice doesn’t pay the office rent.

    But the third and most important reason that I don’t do phone consultations is that I don’t want you to hire me before you’ve come into my office, shaken my hand, and decided whether you trust me. Hiring a criminal defense attorney could be one of the most important decisions you make in your life. Whether you face a misdemeanor like DUI or solicitation of prostitution, or a more serious felony, the result achieved in your case will have a lasting impact on your life. That result, whatever it is, will be achieved by you and your lawyer working together to make the important decisions that every criminal cases requires.

    When you sit across from me in my office, I’m going to tell you what to expect. I’ll tell you the chances of beating your case, the punishment you are probably looking at if convicted, and all the things I’m going to do on your case if you hire me. But what I tell you doesn’t mean anything if you don’t trust me. You have to trust that your criminal defense lawyer knows what he’s talking about and is going to put his full effort behind your case. You have to trust that when he tells you your chances of winning at trial are good or bad, that estimate is based on knowledge and experience.

    So my advice on hiring a criminal defense attorney in Washington, D.C. or northern Virginia, is not to hire the lawyer because they have the fanciest website. Or because they are the cheapest or the most expensive (yes, some people take comfort in being charged top dollar). Hire the lawyer who you think you can trust. Because you will be on a long, bumpy ride together.

  • A Picture is Worth a Thousand Words: Video Evidence in Washington, D.C. DUI Cases

    Police reports rarely paint a flattering picture of a D.C. DUI defendant. They usually describe a stumbling drunk who can’t keep his or her balance while walking from point A to point B. The officer will also highlight all the things the defendant did wrong during the one-legged stand and walk and turn tests, including raising his arms, stepping off the line, or putting his foot down repeatedly. The officer will then regurgitate that report at trial, in an attempt to show that the DUI suspect was under the influence of alcohol or drugs. While your Washington, D.C. DUI lawyer will cross-examine the police officer, and do his best to poke wholes in the officer;s testimony, evidence that directly contradicts that tesimony is much more helpful.

    Occasionally, that contradictory evidence comes in the form of video. Video can come from a few different sources, including the police station where the defendant is booked, street cameras located at the scene of arrest, or since the fall of 2014, body cameras worn by some D.C. police officers. Finding out whether video exists, and getting it from the government is one of the battles your DUI attorney will fight for you. And it often is a battle, since defense requests for the video are often met with denials that any video exists, or that it can be obtained. While station-house video will usually be turned over without too much effort, getting street camera video is another story.

    Your D.C. DUI lawyer should, as early as possible, notify the prosecutor that you want the governmnt to preserve all of the video evidence that exists. This should preferably be done at arraignment, or as soon as you’ve hired an attorney, and should be in writing. Before I know whether video evidence exists in a DUI case, I hand the government a letter requesting that they preserve it. This accomplishes two things: 1) it sends a message that your DUI lawyer knows what he is doing, and hopefully spurs the prosecutor to take the necessary efforts to preserve the video; and 2) it gives your lawyer an excellent argument that your case should be dismissed if the government drops the ball and fails to preserve this important evidence.

    If video does exist, and is obtained by your DUI attorney, it may paint a very different picture of a defendant’s behavior than the one drawn by the arresting officer. Instead of a stumbling, uncooperative drunk person, it may show a defendant who stood upright, walked without stumbling, and generally showed no signs of intoxication. This is valuable evidence. Of course, in certain cases video of a D.C. DUI defendant can be a curse rather than a blessing. Sometimes a defendant appears just as described by the officer, and the video only serves to bolster his testimony. But most often, the video obtained is of a fairly poor quality, and does not either make or break your case. Nevertheless, holding the government to its responsibility to provide this evidence may result in your D.C. DUI case being dismissed, or cause the prosecutor to extend a more favorable plea offer.

    It remains to be seen whether the D.C. body camera pilot program will become permanent, and how this will affect Washington, D.C. DUI cases. While I have not yet seen it, I’m told that video from the body cameras is of a much higher quality than station house or street cameras. Whether this helps or hurts DUI defendants will likely differ depending on the case.
    Whether video evidence exists in your case or not, you want your DWI attorney to aggressively pursue all the discovery you are entitled to.

  • Case Dismissed: Good Things Come to Those Who Work

    If I were charged with a crime, I’d definitely want my case dismissed. That would be a great outcome, and would save me a lot of trouble, maybe some jail time, a criminal record, and several trips to the probation office. So I guess that I shouldn’t be surprised when so many of my clients tell me that they’d like their cases dismissed. Of course they would. It makes sense. But what does surprise me is how easy clients seem to think it should be for me to get their cases dismissed. In their minds, since they didn’t do what they’re charged with, I should be able to explain that to the prosecutor or the judge, and voila, the case disappears. Ah, if only things were that easy, I could spend a lot more time on the golf course. The reality is that, whether you’re charged with a DUI, assault, solicitation, or any other misdemeanor or felony in Washington, D.C., it is very rare that your case simply gets dismissed without your criminal defense lawyer doing a whole lot of work.

  • 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.

  • Federal DUI/Reckless Driving

    Although most traffic offenses are prosecuted in State courts, or in D.C, Supeior Court, if these offenses occur on federal property they are prosecuted in Federal Court. The most common way to end up in Federal court in Northern Virginia is to be charged with Reckless Driving or Driving While Intoxicated (DWI) on the George Washington (GW) Parkway. Since the GW Parkway is federal property, your case will be heard in the Federal District Court for the Eastern District of Virginia (EDVA).  But since the Parkway is located in Virginia, the Virginia DWI or Reckless Driving laws will apply. However, if you are arrested on property owned by the National Park Service, the federal DWI/DUI statute will apply.

    Like in Virginia state court, Federal DWI and Reckless driving charges carry a penalty of up to 12 months in jail or a $2500 fine, or both, and can result in the suspension of your Virginia driver’s license. Therefore, if you have been charged with DWI or Reckless driving on the GW Parkway, you should consult a Virginia traffic lawyer with experience in Federal court and in Virginia traffic law. Contact JPMLegal for a free in-office consultation.

  • 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.

  • It's Alive, Alive: D.C. Superior Court Judge Shows that 4th Amendment Still has Teeth

    It’s no secret that if you get pulled over by the police in Washington, D.C., the officer likely has more on his mind than a broken taillight or an illegal turn on red. If police officers observe any traffic infraction, no matter how small, they have the right to pull you over and write you a ticket. And once they have you lawfully pulled over, the police are almost always looking to turn a traffic stop into a full-blown arrest. But despite what many officers might think, making a lawful traffic stop does not give them carte-blanche to investigate matters unrelated to the original purpose of the stop. 

  • Know Your Rights: The Fourth Amendment and DUI Defense

    You were stopped by the police in D.C. or Northern Virginia at 3 in the morning, given Field Sobriety Tests (FSTs), and arrested. Back at the station you took the breath test, blew a .08 or above, and spent most of the night in a cell. You’re charged with DUI, you have a trial, and are found guilty. The biggest reason you now have a DUI conviction is because there is a “per se” rule that you were driving under the influence if your breath test score was .08 or above. If the test is admitted into evidence, you have very little chance of winning a trial. So your D.C. DUI lawyer will try very hard to keep that score out of your trial. There are many tools at your lawyer’s disposal to accomplish this, but perhaps the most powerful tool is the United States Constitution.

    The Fourth Amendment, and decades of U.S. Supreme Court case law establish that the police cannot conduct a traffic stop without “reasonable articulable suspicion” that the driver is committing a criminal offense. If, after the traffic stop, the police want to arrest you for DUI, they cannot do so without “probable cause” that you have committed a crime. What does this mean for your DUI defense? To answer that, we have to rewind to the beginning of your case, when you’re still in your car, driving home, before you even knew the police were behind you.
    In order to establish that he or she had reasonable suspicion to pull you over, the police officer has to point to specific facts that indicated you were doing something illegal. Because the officer can’t pull you over simply because it was 3 in the morning and you were the only person on the road. He can’t stop you because he doesn’t like the look of your car, or your face. She can’t haul you out of your car because she has a “hunch” that you’re up to no good. The Constitution and the Supreme Court do not allow the police to intrude on your life based on randomness or hunches. If you were obeying all traffic laws, officers will find it difficult to establish the reasonable suspicion the law requires for making a traffic stop. If they can’t, your DC DUI lawyer will argue that the evidence—including every observation made by the officer, each FST, and most importantly, the breath test scores—should be kept out of your case. If the judge agrees, you cannot be convicted of DUI.

    But what if you were driving with a broken taillight, you rolled through that stop sign, or you were pressing a little too hard on the gas? Well, the bad news is that the officer has every right to stop you. The good news is that this is not the end of the story. Because in order to arrest you, take you back to the station, and give you that ill-fated breath test, the officer still has to establish probable cause to arrest you. If you don’t show obvious signs of being under the influence, and you pass the FSTs, then the police officer has no constitutional basis to make a DUI arrest. And if there is no such basis, then the judge must suppress your breathalyzer scores.
    Make no mistake, only in a small percentage of DC DUI or Northern Virginia DUI cases will the judge find that the police lacked the reasonable suspicion or probable cause to stop or arrest a defendant. But your experienced DC-area DUI lawyer will explore every possible defense in your case, and should fiercely defend your constitutional rights.

  • 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.

  • 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. . .

  • 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.

  • 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.

  • Washington DC DUI Lawyer

    Recent changes in Washington, D.C. DUI laws have increased the penalties for a DUI conviction. In Washington, D.C., conviction of DUI carries a penalty of up to 180 days in jail, and/or a $1000 fine. A DC resident who is convicted of DWI can also expect to have his or her driver’s license suspended for 6 months, and to complete an alcohol education and/or driver safety course. Defendants with a BAC between .20 and .25 face a mandatory minimum jail sentence of 10 days. Those with a BAC over .25, must serve 15 days in jail. For a second DUI offense in Washington, D.C., defendants face up to 1 year in jail, with a mandatory minimum sentence of 10 days, and up to a $5000 fine.

    Unlike in Virginia, restricted driver’s licenses are rarely, if ever issued to those convicted of a D.C. DUI. If you are licensed in a state other than D.C., only your privilege to drive in D.C. can be suspended by the D.C. DMV. However, it is likely that your home state will suspended your license, especially if you are licensed in Virginia or Maryland.

    Because DUI cases involve technical and scientific evidence, your D.C. DUI attorney should have experience trying DUI cases. Contact Jay Mykytiuk at JPMLegal for a free consultation today.

  • 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.

  • What to Expect When You're Expecting a D.C. Criminal Charge

    When you left the house this morning, surely you didn’t expect to be arrested for a crime.  Sirens, lights, handcuffs—the entire process was undoubtedly one of the most stressful events in your life.  You breathe a sigh of relief because at least you were released on citation, but now you’re facing misdemeanor criminal charges in the District of Columbia.  Now what?

    While anything short of making the entire situation disappear won’t make you feel better, knowing what to expect about the legal process ahead of you might relieve some of the stress you’re experiencing.  In Washington, D.C., offenses such as DUI, simple assault, solicitation of prostitution, and hit and run are all charged as misdemeanors, which means they carry a maximum sentence of less than one-year in jail.  Having a criminal conviction on your record, however, will have a lasting effect on your life.  This is why one of the first things you should do if ever charged with a DC crime is contact a criminal defense attorney.