sleep-1431410What started out as a mission to satisfy a late-night craving, ended in disaster for one Florida man when a police officer found him sleeping in his car at a Taco Bell drive-thru.

As explained in a recent Los Angeles Times article, the driver fell asleep while placing his order early one Friday morning.  After the drive-thru attendant woke the driver up, he pulled his car into a parking spot to wait for his order there.  Not long after the driver parked his car, a police officer who had been dining inside the restaurant, noticed him sleeping.  The driver explained to the officer that he was just waiting on the food he’d ordered, but the officer knew something the man did not—he had actually never ordered his food.  Suspecting the driver may be under the influence, the officer asked him to take a roadside breath test but he refused.  However, the man was eventually charged with DUI after failing a field sobriety test.

This news article demonstrates the confusing nature of what it means to “operate” a motor vehicle while intoxicated or under the influence.  Employing the general standards of common sense, one would think the driver wasn’t in control of his vehicle in this situation because the car was parked and the driver was asleep.  In the District of Columbia, however, common sense does not prevail.

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car-1232347As previously discussed, if you are arrested in the District of Columbia for a DUI, the DMV will most likely suspend or revoke your license for a period of 6 months to 2 years depending on various factors. However, the DC DMV offe
rs an Ignition Interlock Device Program (IIDP) allows DUI and DWI offenders to get their driving privileges back faster.  An ignition interlock device is a breathalyzer connected to a car’s ignition system. To start the car, the driver must first blow into the device to check the alcohol level on his or her breath. The car will only start if the driver’s breath alcohol level is below an accepted amount on the device.

While the device itself may be a bit burdensome on a driver or a somewhat unsightly in your vehicle, DC’s IIDP gives DUI offenders a chance to reduce the suspension or revocation period on their license. What this means is that if your license is suspended because of a DC DUI and you participate in the program, you get a restricted driver’s license which allows you to drive as you once did, so long as your vehicle contains the breathalyzer. Although the program is optional at the moment, it may become mandatory for some DUI offenders.

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A likely consequence of a DC DUI conviction is the suspension or revocation of your license.  In the District of Columbia, if you are convicted for a DUI, the DMV will automatically initiate procedures against you to either suspend or revoke your driver’s license.  The DC DMV takes this step regardless of whether you are actually convicted of the DUI.  We have previously discussed tips for preventing the license suspension while the case is pending.  If you ultimately get convicted, there is virtually no way around suspension.  If your license has been suspended or revoked in the District, there are important things to know to reinstate your driving privileges.

First, you must wait to reinstate your license after the suspension time or revocation period has ended.  What this means is that you are not eligible for reinstatement within a certain period of time after your arrest, and the time period varies depending on whether you submitted to or refused to take the breathalyzer test during your arrest.

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black police cuffsThe District of Columbia Superior Court is unlike many jurisdictions in that it does not have a bail bond system. In fact, there is not a single bail bonds person or business in the entire District. The City Council outlawed bail bonds years ago. So, the question is how is bond determined in a DC criminal case. DC Superior Court has a condition based system that starts with the general principle that most people should be released on their personal promise to appear in court.

That means in most misdemeanor cases, including DUIs, the person arrested will be released and required to sign notice to return for their next court date and appear with their attorney. The notice informs the person that if they fail to appear at the next court date, they could be charged with a separate crime (called a Bail Reform Act violation) that carries a maximum penalty of 180 days and/or a $1,000.00 fine. Often times, however, the judge will also impose court ordered conditions as part of the person’s release. Sometimes these conditions make sense. For example, when a repeat drug offender gets ordered to participate in a drug treatment program. However, many times the conditions imposed can be invasive, burdensome, and even paternalistic.

As previously discussed, the Pretrial Services Agency supervises most of the individuals charged with a crime and released on their personal promise to appear. Pretrial is a giant government bureaucracy that is understaffed and overworked. However, it appears that a recent trend has been a push to get more individuals charged with DUI’s and DWI’s in DC under Pretrial Supervision. At Scrofano Law PC, we recommend anyone charged with a DC DUI, including a first-offender enroll in a private alcohol program in an effort to avoid the requirement to report to and be supervised by Pretrial Services Agency.

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In the District of Columbia, when an individual gets arrested for a DUI or DWI, the police officer is supposed to serve the individual a “Notice of Proposed Revocation.” The Notice instructs the person arrested that they must request a hearing with DC DMV within 10 days otherwise their DC driver’s license will be suspended. If the person arrested has an out of state license, the proposed notice of revocation instructs them to request a hearing within 15 days. If the arrested person with an out of state license fails to request a hearing within 15 days, that person will lose their driving privileges in In the District of Columbia.

If an individual fails to request the hearing but continues to drive they could get arrested for operating after suspension (“OAS”) or operating after revocation (“OAR”). Those crimes are separate misdemeanors that carry a maximum penalty of one year in jail and/or a $5,000.00 fine. While most people get unsupervised probation if convicted for those crimes, getting arrested while having a pending DUI case can definitely lead to some jail time. In addition, convictions for OAS and OAR also carries 12 points with the DC DMV. A DUI combined with an OAR or OAS arrest or conviction can lead to serious license problems. Its like digging a hole you cannot get out of.

Accordingly, its extremely important that anyone arrested for a DC DUI request a hearing within the time limits set forth in the Notice. The location to set a DMV hearing is 301 C Street NW, Washington, DC 20001. The Notice provides several basis to revoke or suspend a license or driving privileges. Refusing to take a breathalyzer is a basis to issue the Notice. Simply getting arrested for DUI is enough to get issued a Notice regardless of whether the arrested person blows in the breathalyzer. It’s the officer’s responsibility to properly serve the Notice on the arrested person and get it to the DC DMV. In rare cases, the officer may forget to submit the paperwork and the arrested person will go to the DMV anyway. In that situation, the DMV will usually tell the arrested person that they have nothing on file. In that situation, the person’s driving privileges are safe unless and until they get convicted for a DC DUI, DWI, or OWI.

When a person requests the hearing, that request will toll the suspension at least until the criminal case is over. For example, lets say you get arrested on January 1st. If you do nothing, your driving privileges will be suspended or revoked. If you request a hearing and let’s say it gets set for February 7, your license will remain valid at least until February 7. If the officer fails to show up for the February 7 hearing, the DMV will take no action against the license. That means you will only lose your license if you ultimately get convicted in the criminal case. If you hire an aggressive DC DUI lawyer and get the case dismissed or you win at trial, you will never lose your license in the process under that scenario. However, if win the DMV hearing and ultimately get convicted, DC DMV will suspend your license for 6 months if you blew and one year if you refused to blow in the breathalyzer.

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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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This is the final part of a three part series on DC gun laws.  In the first part, I discussed the current state of DC gun laws and how its important to challenge current gun charges on the basis of the law’s unconstitutionality.  The second part discussed the process for attempting to withdraw a guilty plea on a gun conviction under the District’s old law and weighed the pros and cons of trying to withdraw a guilty plea.  This final part discusses the class action lawsuit filed by Scrofano Law PC and the Law Office of William Claiborne.

In Smith et al v. District of Columbia, we argue that after Palmer was decided, the District government should not have continued to prosecute gun offenses.  We argue that the government’s prosecution of unconstitutional gun laws violated plaintiffs’ Second Amendment rights.  In addition, we argue that the seizure of guns violated the plaintiffs’ Fifth Amendment rights.  As previously discussed, a typical scenario that occurs in the District of Columbia is a law abiding out of state resident visiting the District who is unaware of the District’s draconian gun laws gets pulled over for a minor traffic violation.  That person tells the law enforcement officer that she has a gun in the vehicle—as one is typically trained to do in gun safety courses.  Then, the officer arrests that person and charges them with a felony gun crime.

In the past, the best outcome you could typically hope for was a misdemeanor plea agreement to avoid a felony conviction.  Palmer changed things for at least a period of timePalmer declared the District’s gun laws unconstitutional and many cases got dismissed.  However, after Palmer was decided the District government continued to prosecute folks—including out of state residents with lawfully registered firearms in their home state for misdemeanor registration offenses.  However, because Palmer declared that the District’s absolute ban on carrying a pistol violated the Second Amendment, we believe the then-existing registration scheme was also unconstitutional.

We argue the registration scheme was unconstitutional in at least two ways.  First, it made District residency a requirement for registration.  That mean none of the folks arrested who had lawful firearms from their home state could not ever carry in the District solely on the basis of their non-residency.  Second, no mechanism existed to register a firearm for the purpose of carrying.  Palmer recognized that the Second Amendment includes the right to carry for self-defense not just the right to possess a firearm in the home for self-defense.  Furthermore, this whole process of prosecuting individuals from out-of-state is particularly onerous considering the District government expends no resources to create awareness of its strict gun laws.  There are no signs on the metro telling people not to bring their guns into the city.  There are no commercials and no billboards.  Hundreds if not thousands of innocent non-residents have unknowingly ran afoul of these laws and became felons and misdemeanants.

Carrying a pistol is not like a DUI for example where everyone knows it’s a crime to drink and drive.  Many individuals mistakenly believe that if something is legal in their home state, it is legal in other states or the District.  We believe the people who were arrested and prosecuted under these unconstitutional laws deserve compensation for the damages they suffered.

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u-s-supreme-court-1-1221080The first part of this three part series discussed the current state of the District of Columbia’s gun laws. The second part will discuss the process involved in attempting to withdraw a guilty plea in DC Superior Court and the pros and cons of attempting to get your plea withdrawn.

Ordinarily, moving to withdraw a guilty plea is a very difficult process. Many defense attorneys refer to the process for withdrawing a guilty plea as “pulling teeth.” However, given the negative consequences associated with having a criminal conviction on your record, and the current successful challenges to the District’s gun laws, it may be worth it to go through the process.

The law disfavors a defendant withdrawing a guilty plea. Imagine every time someone plead guilty and did not like the sentence then cases would never have finality. The rule that governs the withdrawal of a guilty plea is D.C. Criminal Rule 11 (e), which states:

A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice, the Court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.

The plain text of the rule indicates that it is easier to withdraw a guilty plea before an individual is sentenced. Once a person is sentenced, the only way to withdraw a guilty plea is to “correct manifest injustice.” The first issue that a trial judge would have to resolve on letting someone withdraw a guilty plea is whether the person is entitled to a hearing. Many judges will look for a way to just deny the motion without holding a hearing. However, the law only permits a judge to summarily deny a motion to withdraw guilty plea under the following circumstances:

1. If the motion is palpably incredible;
2. If the motion, even if true, would not entitle the person to relief; or
3. If the motion is so vague it fails to state any legal basis for action by the court.

Typically, the government will aggressively oppose such motions and argue to the judge that the court should not even hold a hearing. However, given the fact that a federal judge in the District of Columbia ruled that its “Carrying a Pistol” statute was unconstitutional, it would be difficult for the Court to find that such a motion fit into any of the three requirements above. For example, there is nothing “palpably incredible” about an individual wanting to get a conviction off his or her record when they plead guilty to a crime that was later declared unconstitutional.

Having said all that, there are some cons for trying to withdraw a plea. First, it will cost time and money and put you back into the court system. Second, if successful, the government could potentially reinstate any charges that were dismissed as part of the plea agreement. However, they could not and would not likely reinstate the felony “carrying a pistol” felony charge as it has been declared unconstitutional.

Of course, the pros in many circumstances may outweigh the cons. If Carrying a Pistol in DC is the only conviction on one’s record (or only felony conviction), there are tremendous benefits for not having a felony conviction on one’s record. Individuals with felony convictions often can’t vote and have difficulty finding jobs and passing background checks, among other consequences.

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gun-1503923There has been a lot of news lately regarding DC’s gun laws.  If you have been convicted in the District of Columbia for carrying a pistol, unregistered firearm, or unregistered ammunition prior to October of 2014, there may be a legal remedy available to get your conviction overturned.  Part I  will discuss the current state of the District’s gun laws and how you may be able to get your conviction overturned.  Part II will discuss the pros and cons of trying to get your conviction overturned.  Finally, Part III will discuss a class action lawsuit filed by Scrofano Law PC and The Law Office of William Claiborne III on behalf of folks who were prosecuted in DC under the city’s unconstitutional gun laws.

In July of 2014, a federal judge in the District Court for the District of Columbia ruled that the city’s “carrying a pistol” statute was unconstitutional.  At that time, the District maintained an absolute ban on the carrying of a pistol.  No mechanism existed to obtain a concealed carry permit.  In Palmer v. District of Columbia, Judge Scullin ruled that right to bear arms articulated in the Second Amendment of the Constitution extended beyond the right to self defense in the home and to “carry” as well.

In response to the decision, the United States Attorney’s Office for the District of Columbia (“USAO”) dismissed basically all of its carrying a pistol prosecutions–recognizing that it could not prosecute an unconstitutional law.  These dismissals did not happen immediately but rather occurred over the course of several months.  Unfortunately, for many law abiding non-DC resident citizens who were arrested in the District of Columbia when they had either properly registered their guns in their home state or had a concealed carry permit from their home state, the USAO’s actions did not end their prosecutions.

For each case dismissed by the USAO, the DC Office of the Attorney General’s Office (“DC OAG”) basically picked up the cases and prosecuted the individuals for misdemeanor gun charges.  The DC OAG is the local prosecuting agency in the District that mainly prosecutes traffic crimes like DC DUI cases.  The charges included possession of an unregistered firearm and unlawful possession of ammunition.  In October of 2014, the DC City Council passed legislation in response to the Palmer decision.  The same attorneys from the Palmer case brought another lawsuit arguing that the new legislation was also unconstitutional.  In Wrenn v. District of Columbia, the Plaintiffs have argued that the new law’s requirement that the individual applying for a carry permit demonstrate a “special need” for self-defense (i.e. that someone has threatened them) makes the law unconstitutional.

Initially, the same judge from the Palmer case agreed.  However, that preliminary decision was reversed by the Court of Appeals for the DC Circuit.  The parties are now briefing the issue and the DC Circuit is expected to rule in the next few months.  That means the state of the new gun law is currently in limbo until the DC Circuit rules.

Regardless of the status of the new law, Judge Scullin’s decision in Palmer still stands.  No legal ruling yet exists whether this ruling should apply to individuals who were convicted under the pre-Palmer law.  In other words, whether the decision applies retroactively is yet to be decided.  That means if you plead guilty under the old law, there is a basis to try and withdraw your guilty plea and get the conviction taken off of your record.  It also means if you were convicted at trial, there may be a basis to get your conviction overturned given that the law was later ruled unconstitutional.  

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As is the case with most legal inquiries, the answer to the above question is “it depends.”

Whether or not you should appeal your DC DUI conviction depends on what you are looking to get out of the situation. If you are only trying to avoid the trial court’s sentence, maybe an appeal isn’t for you. On the other hand, if you would like to have your conviction overturned and your conviction removed from your record, maybe an appeal is for you. Obviously, all three results are preferable. However, avoiding your sentence is impossible due to time it takes for the parties to brief the appellate issues and the time it takes the DC Court of Appeals to issue a decision.

Having dealt with your DUI at the trial level, you have probably realized that the judicial process is lengthy and time-consuming. The appellate court process is tedious and time-consuming as well. On average, DUI appeals take approximately a year to resolve.

In the District of Columbia, you have 30 days from the trial court’s judgment to note your appeal. After you note your appeal, you must file your Appellant’s Brief within 40 days. The government has 30 days to respond to your brief. Then, you have 21 days to file a reply. At this point, your appeal has already taken 121 days—not including weekends or national holidays. If you factor in the numerous motions for extension of time, which is common for both parties to ask for in order to file briefs, the timetable nearly doubles. Finally, once the parties have filed everything, the case is submitted to the DC Court of Appeals and it issues a decision in months or even a year.

Any jail sentence imposed for a DC DUI conviction will most likely take you less than a year to complete. However, probation could take a year or longer. Thus, even if the DC Court of Appeals ruled in your favor, you may have already served your sentence. Nonetheless, you have a lot to gain from appealing your DUI conviction.

Winning an appeal could result in your conviction being overturned and erased from your record. There are numerous reasons why having your conviction cleared from your record is ideal such as future employment and educational opportunities. Or maybe having your conviction erased from your record is more of a moral victory to you. Just think of the weightlessness you would feel without a conviction hanging over your head.

While the facts of every case are different and winning a DUI appeal is never a guarantee, there are various issues that you can attack to ensure the best possible result for your appeal. For instance, it has recently come to light that the Metropolitan Police Department has a history of problems with their breathalyzer program which resulted in a multitude of wrongful DUI and DWI convictions. Wrongful DUI conviction is just one example of the many issues an experienced appellate lawyer could challenge in your DUI appeal.

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