Articles Posted in OAG

In DC, a Civil Protection Order (CPO) is very similar to a restraining order. Its a court order that requires a person to do or not to do certain acts. For example, if your ex-spouse is harassing or stalking you, you can file a petition with the court to order your ex-spouse to have no contact with you.

The person who files for a CPO is called the “Petitioner.” The person who a CPO is filed against is called the “Respondent.” Any person can file for a CPO if they feel like they need to protect themselves against someone they have an “intrafamily relationship” with. In general, a CPO will require the respondent to stay at least 100 feet away from the petitioner at all times and to have no contact with the petitioner—including electronic and social media communications. It also usually bars communicating with the person through ha third-party. The terms of a CPO can vary depending on a petitioner’s situation.

To get a CPO, a petitioner has to go to a Domestic Violence Intake Center in DC Superior Court and file a CPO petition. This petition is signed by the petitioner under oath. After you file the petition, you will be given a court date for the CPO hearing. Before the hearing, you must properly serve the respondent with notice of the CPO hearing. You cannot serve the respondent personally. The process server must be some other individual who is older than 18 years of age.

The first hearing will be for what’s called a “Temporary Protection Order” or TRO. That hearing is conducted ex parte, meaning with only one side—the Petitioner. The standard is extremely low and judges routinely grant the TPO. The TPO stays in effect for 10 business days.

After the respondent is served, a CPO hearing is set. At the CPO hearing, you must prove to the judge that the respondent committed or threatened to commit a crime against you. It is imperative that you bring evidence and witnesses to the hearing to help you prove your allegations. The court will issue a CPO if the judge makes a finding that the respondent committed or threatened to commit a crime against you. If the respondent does not show up to the court date, a CPO may be entered by default.

The purpose of a CPO is to protect the petitioner, not necessarily to punish the respondent. However, if the respondent violates the terms of a CPO, the petitioner may pursue criminal charges against the respondent. You can report CPO violations in two ways: (1) call the police or (2) file a motion for criminal contempt.

If the respondent is arrested, or if you file a motion for criminal contempt, the court will issue a new court date during which a judge will determine if the respondent violated the CPO. You must testify before the judge to prove that the respondent violated the terms of the CPO. If a judge finds that the respondent violated the CPO, he or she may have to serve jail time, spend time on probation time, and/or pay fines to the court. If you file a Motion for Contempt, the first step in the process is for the Office of the Attorney General (the same agency that prosecutes DC DUI cases) to determine whether to prosecute the allegations.

A CPO is usually valid for 1 year. If you would like to modify, extend, or vacate the CPO, you must do so through the court. You cannot unilaterally alter the terms of a CPO. To modify, extend, or vacate the CPO, you have to file a motion with the court explaining why you want to change the terms of the CPO. You will be given a new court date, at which time you will explain to a judge why you want to change the terms of the CPO.

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beer-delivery-system-1-1246534-mI usually advise my clients to enroll in a private alcohol program after getting arrested for a DC DUI or DWI. For most people who get arrested for DUI, the police will release them at the station after several hours with a Citation to Return to Court. The citation gives them a date is for the Court to arraign the person on the charge of DUI and any other additional charges based on the police officer’s allegations.

At the arraignment, the prosecutor from the Office of the Attorney General will ask for several release conditions. The standard release conditions include (1) do not drive without a valid permit; (2) do not drive after the consumption of drugs or alcohol; and (3) report to the Pretrial Services Agency for a full screening and assessment. In almost all DC DUI cases, traffic judges in Superior Court will agree with government’s request and impose those conditions.

Now, the first two are no brainers and easy to comply with. Do not drive without a valid permit is just what it means. If you have a valid license, drive all you want. If you don’t, then don’t drive. If you get caught driving with a suspended license while under that release condition, you can not only get arrested for operating after suspension but also be charged with contempt of court. This condition is particularly important where the person’s license gets suspended as a result of the DC DUI arrest. The second condition is also an easy one. If the person has even one sip of alcohol or ingests any type of drugs, do not drive.

The third condition is where most folks have issues. The Pretrial Services Agency is an agency that supervises individuals with a Superior Court case. It is basically where the Court puts someone on probation while their case is pending. I will save a discussion on what Pretrial does to the presumption of innocence for a future posting. The point is reporting to Pretrial can be degrading, disruptive to one’s life, and very uncomfortable.

Each individual is assigned a case manager who is often overworked with hundreds of other individuals under their supervision. Reporting requirements make individuals charged with a DC DUI come down to the courthouse once per week to wait in line during business hours to report. Reporting can be particularly cumbersome for people who live or work in Maryland or Virginia. Office visits for the initial assessment can take hours. If the individual is ordered to drug test, they must come down to the courthouse once per week, wait in a long line, then urinate in a cup while a Pretrial employee watches their genitals against a mirror. This is done to ensure people don’t sneak in another person’s urine to avoid detection of drugs. However, in my view, it is a humiliating and dehumanizing process that is unfortunately ordered routinely in Superior Court.

So, how can one avoid reporting to Pretrial? Prior to the arraignment, enroll in a private alcohol program. Most judges will refrain from imposing the Pretrial requirement as a court ordered condition when their DC DUI attorney informs the Court the person has already enrolled in a private alcohol program. Accordingly, like I said, I advise most all clients to do that. Sometimes getting arrested for DUI is a red flag that an individual has an alcohol issue that needs treatment. Others may get arrested for a DC DUI or DWI and its truly an isolate incident. In either case, enrolling in a private alcohol program can help the person avoid Pretrial.

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dutch-weed-2-jpg-1206038-mMarijuana decriminalization took effect a few weeks ago and its important to know the facts before you spark up. First and foremost, marijuana remains illegal under federal law. There is a good chance that at least the United States Park Police and the Capitol Police—both of which have jurisdiction to make arrests in DC—will continue to make arrests for marijuana possession. Whether the United States Attorney’s Office will then prosecute those arrests in federal district court remains to be seen.

Under District of Columbia law, possession of an ounce or less of marijuana is now punishable by a $25.00 citation. The citation is akin to a speeding ticket. It does not carry possible jail time. That means if the Metropolitan Police Department (or “MPD”)—the District’s local police force—stops you and finds less than one ounce of weed, the officer should only give you a citation and let you on your way. However, smoking marijuana in public remains illegal under both federal and local law. That means if you get caught by any police agency smoking weed in public, you will likely get arrested. The penalty for smoking weed in public is akin to getting arrested for possessing an open container of alcohol.

The offense of smoking marijuana in public carries a maximum penalty of 60 days in jail and/or a $500 fine. The Office of the Attorney General will prosecute this new crime. It also remains to be seen how aggressively that office will prosecute that crime. It is possible they could offer diversion for first offenders. It will also be interesting to see how DC Superior Court judges typically sentence people for this crime. The best way to avoid criminal prosecution is to refrain from smoking anywhere in public, which includes in a vehicle, on streets, sidewalks, parks, alleys, parking areas, and any publicly accessible private property (like a store or restaurant).

Selling marijuana remains illegal and will likely be prosecuted aggressively. In my view, this provision is one of the major flaws in the new law. The City Council has now likely increased demand for a substance that remains illegal to sell. That is one of the reasons Scrofano Law supports full scale legalization (like Colorado and Washington). However, this law is a step in the right direction.

Finally, MPD officers can no longer use the smell of marijuana as reasonable suspicion to search someone or a vehicle. There is an exception to this provision, however, where police suspect someone is driving under the influence of marijuana, which remains criminalized. I expect to see an increase in arrests for driving under the influence of marijuana.

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night-life-2-1438558-3-mUsing a fake ID to get into a bar, while certainly not advisable, is as common for college students as sleeping through Friday morning classes.  In the District of Columbia, like most places, using a fake id is a crime.  The DC City Council has passed laws that, to some extent, recognize how common a scenario using a fake ID to get alcohol is.  For a first offense, the law provides for a diversion program where, if successfully completed, can result in the person arrested getting their case dismissed and their record expunged.

The offense is typically referred to as an ABC violation.  If caught with a fake ID by law enforcement in DC, you will be arrested and booked for this crime.  You will be prosecuted by the Office of the Attorney General for the District of Columbia.  Fortunately, they do not prosecute these crimes as aggressively as DUI offenses.  However, and what will be the subject of a future posting, a DUI arrest for an underage drinking is treated much differently than an ABC violation.

After being arrested for an ABC violation, you will likely be released from the police station after a few hours with a citation to return to court on a specific date.  If you fail to appear on that date, the Court can issue a warrant for your arrest.  Before going to the citation date, I cannot stress the importance of contacting a DC underage drinking lawyer.  Your lawyer can help explain to you what to expect in the process and negotiate a diversion agreement with the prosecutor. The typical diversion agreement involves doing community service and paying a fine in exchange for dismissal of the case.

Once dismissed, you have to wait six months to have your record expunged.  Once the six months expires, your DC underage drinking lawyer can file a motion on your behalf to have the arrest expunged.  You can expect the expungement process to take a few months but in the end you will get out of the situation without having a criminal record.

The diversion program and six month expungement are codified in the DC Code.  However, this program applies to first offenders.  If you get caught using a fake ID a second time, all bets are off.  In that case, you would be prosecuted like any other misdemeanor and would have to either plead guilty or take your case to trial.  In addition, diversion applies where someone uses a real ID that belongs to an older person who looks like them (like an older sibling).  Where the ID is actually forged from some type of computer program or otherwise, there could be serious implications under federal law where the DC diversion program does not apply.  Finally, police often notify the arrestee’s university and the university may take disciplinary action as well.  While the law is set up so that the arrest does not destroy your future, any arrest is a serious matter.

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file291260895708In August of 2012, the District of Columbia City Council amended the city’s DUI laws to include increased maximum penalties, increased mandatory minimums, and a whole host of other changes.  One important change that’s not talked about a lot is the change to the city’s hit and run laws.  Most people think if you are involved in an accident its okay just to leave a note with your information (if you hit a parked car by accident) or to exchange information on the scene.

DC’s current hit and run laws require when you are involved in an accident, you must not only stop and exchange information but also call the police and wait for the police to arrive on scene.  That means if you stop and exchange information, that is not enough.  You could exchange insurance information, leave the scene, and later be charged with leaving after colliding.  Leaving after colliding is a misdemeanor traffic offense that carries a maximum penalty of 90 days and/or a $500.00 fine (if property damage occurs) or 180 days and/or a $1,000.00 fine (if personal injury occurs).

The Attorney General’s Office prosecutes DC leaving after colliding charges aggressively.  If, as I have blogged about before, the OAG treats DUI’s like murder cases, leaving after colliding (or “LAC”) are their armed robberies.  The OAG does not typically offer diversion in LAC cases although they will do under some limited circumstances.

One of the first questions clients often ask me when charged with a DUI is: What are the chances the government will dismiss my case?sign-no-alcohol-1231362-m

I always answer the same, with a resounding “Zero.”  That’s because prosecutors in the District of Columbia take DUI enforcement extremely serious.  The DC Office of the Attorney General will aggressively prosecute every DC DUI arrest—lack of evidence, havoc on an individual’s livelihood, mitigating circumstances all be damned.

The example that most exemplifies the government’s policy towards DUI prosecutions is about a colleague of mine who had a client that blew a literal 0.00 on the breathalyzer machine.  My colleague requested that the government dismiss the case.  The government refused because the officer suspected the client was under the influence of drugs.  When a urinalysis came back months later that revealed the client had no drugs in her system, my colleague requested that the government dismiss the case.  The government refused and stated that the officer suspected the client had taken “inhalants,” which go undetected in urine tests.  That is the kind of uphill battle defense lawyers face in trying to convince the government to abandon a meritless (or at least questionable) prosecution.

Clients often are relieved to discover that their breathalyzer scores fall below the 0.08, which is the legal limit.  I mean you passed the breathalyzer why would they prosecute you?  In those cases, the government will sometimes offer a Deferred Sentencing Agreement but they will not dismiss the case.  What few people know is that the government can proceed on a theory of proving the case by DUI rather than DWI.  DUI requires that the government prove beyond a reasonable doubt that one was intoxicated.  Such proof can come from a police officer’s observations that the person smelled of alcohol, or had slurred speech, or had troubling walking or standing.  In addition, the government can put evidence that the person failed the Standardized Field Sobriety Tests (“SFST’s”).

If a judge finds that the government proved the individual was intoxicated even with a low breathalyzer score, the person can be convicted of DUI.  Its always interesting at trial how the government will argue that a breath score over 0.08 is infallible evidence of one’s intoxication only to completely minimize its importance when the score is below 0.08.  When it comes to DUI prosecutions, the government is relentless.  I agree that drunk driving is a serious concern in our society.  DUI related deaths are particularly tragic because they are avoidable.  Every loss of life is tragic.  However, continued “at all costs” enforcement of DUI laws is not responsive to the successes we have had as a society in reducing DUI tragedies.

I do not agree with the way the government prosecutes DUI’s.  I have seen too many people’s lives ruined.  In many cases, it’s a person’s first arrest, their bad driving was minimal (dark tinted windows, failure to use a blinker, etc.), and they often have low breath scores.  Folks can lose their licenses, their jobs, and often their ability to provide for their family.  They are required to pay for and attend expensive alcohol classes put on by organizations that have contracted with the city government.  They must pay court costs, fines, report to probation officers, and at times lose their liberty.  Pretrial diversion is extremely limited for DUI’s.

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need-for-speed-1397111-mAs previously mentioned, the District of Columbia Office of the Attorney General (“OAG”) prosecutes alcohol related traffic offenses.  These offenses include Driving under the Influence (“DUI”), Driving while Intoxicated (“DWI”), and Operating while Impaired (“OWI”).  These crimes are essentially the most serious crimes the OAG has jurisdiction over.  If you are arrested for DUI, the government will likely charge you with DUI and OWI.  OWI is sort of like a lesser offense to DUI.  You cannot be convicted and sentenced for both DUI and OWI.

The OAG operates with near uniform policies related to DUI plea negotiations.  In fact, a good DC DWI lawyer can usually predict what plea offer the OAG will extend before the prosecutor actually extends the offer.  For a typical first offender DUI, the OAG will offer plea to the DUI, dismiss the OWI, and the government will recommend a suspended sentence, one year probation, and a series of alcohol related classes and fines.  An overwhelming number of DC DUI cases receive this exact plea offer.  For this type of offer, there is almost no incentive to accept the plea offer.

First of all, the person cannot be convicted of both DUI and OWI, so the government dismissing the OWI is a meaningless gesture.  In addition, at least at the date of this blog entry, most DC Superior Court judges will mete out that exact sentence for a first offender.  That is by no means a guarantee but merely an observation.  Therefore, the government asks the individual to give up all of their constitutional rights in exchange for next to nothing in return.

When someone is arrested for DUI, the first court hearing is an arraignment.  An arraignment is just a formal reading of the charges.  The next court date is a status hearing.  It is at the status hearing where the government will extend a plea offer.  At the status hearing, the person must decide whether to accept the plea offer or set a trial date.  At Scrofano Law, we set almost every DC DUI case for trial at the status hearing.  In most (but not all) cases, even if you lose at trial, the result will usually be a sentence along the lines of what the government extended as a plea offer at the status hearing.  Therefore, little incentive exists to waive all constitutional rights and plead guilty to a DUI.  The government does not offer anything meaningful in return and there is little trial risk for most cases.

There are numerous other factors that can come into play for DUI prosecutions.  With DC’s new DUI law, a number of things can trigger mandatory minimum jail sentences.  Among other things, repeat offenders, high chemical scores, and whether someone was under the influence of drugs while driving can trigger mandatory minimum jail.  In addition, the government may charge the person with additional crimes like Reckless Driving or Speed over 30.  In those cases, the government may offer to drop the additional charges, so it could make sense to accept a plea.  Or the government may offer a Deferred Sentencing Agreement in some rare cases.  These issues will be discussed in future posts.  Accordingly, its not a blanket rule to set every case for trial and legal advice should be tailored to each individual case.  However, generally the OAG does not extend plea offers that incentivize someone to plead guilty at the status hearing.

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