Articles Tagged with Alcohol Offenses

1252046_beer_glassThe Metropolitan Police Department (“MPD”) has video cameras all over their police stations. That means if a person is arrested for a suspected DUI or DWI within the District of Columbia, the person will be video-monitored throughout the arrest and booking process. MPD has multiple stationhouse cameras set up for many reasons including the need of such video for evidentiary purposes in a court. MPD also has a pilot body camera program where selected officers wear body cameras. All video evidence is important in any DC DUI case.

To be convicted of a DUI in DC, the government must prove that a suspected individual was (1) under the influence of alcohol or drugs while (2) operating a motor vehicle. Usually, the government will present evidence such as breathalyzer or other chemical test results and testimony from the arresting MPD officer about behaviors allegedly consistent with intoxication such as motor skills, speech, and ability to follow directions.

Whether or not a person submitted to the breathalyzer test, video evidence of how a person was behaving the night of the incident may be helpful to any DUI case. For instance, an MPD officer might testify that the night of the incident you had glassy eyes, you were stumbling around, and you were slurring your words. It is possible that video evidence—body camera video and stationhouse video—could directly refute the MPD officer’s testimony because it might contradict the officer’s observations. Such evidence is highly effective for use at trial in DC DUI.

It is the policy of MPD to preserve stationhouse video and body camera footage for a period of thirty days. After thirty days, MPD will record over such material. However, in a recent DC DUI case, the DC Court of Appeals held that the government, including MPD, must preserve all video evidence. In some cases, a judge might dismiss a case or impose other sanctions against the government if MPD does not preserve the video evidence.

To determine whether it will dismiss a case due to the government’s loss of video evidence, the judge will evaluate the following three factors: (1) why and how the government lost the evidence; (2) steps the government took to preserve the evidence; and (3) how important the evidence was to the case. If the government fails to preserve video evidence that is potentially useful to your case, it risks violating your due process rights and having its prosecution dismissed.

Continue reading

1423322313o0gx3If you operate a vehicle in the District, DC law states that you have given consent to submit to a breathalyzer test if you get stopped by the Metropolitan Police Department (“MPD”) for suspected DUI or DWI. However, MPD is not going to force you to take a breathalyzer test. You can refuse to submit to testing. At Scrofano Law PC, while the facts of every case are different, we believe that if you have had even a drop of alcohol, refusing to take a breathalyzer test will usually better protect you and your rights.

To convict someone of DUI, the government must prove that the person (1) operated a motor vehicle in DC, and (2) was intoxicated. Without breathalyzer results, it is more difficult for the government to prove that you were intoxicated. DC criminal laws allow the government to use your refusal to take the breath test as evidence that you were intoxicated. What this means is that the government will provide a judge with proof that you refused to take the test and argue that you must have refused because you were feeling guilty about drinking and driving.

For first time DC DUI or DWI offenders who refuse to take a breathalyzer test, the government has to provide more evidence than just your breathalyzer refusal to prove that you were intoxicated. For example, the government will have an MPD officer testify about the way you were acting when you got pulled over and why they thought you were intoxicated based on your actions—like odor of alcohol on breath, performance on the SFST’s, and other observations. For people charged with a second DUI or DWI offense in DC who refuse to take a breathalyzer test, a different legal standard applies.

DC DUI and DWI laws state that if a second time DC DUI offender refuses to take a breathalyzer test, a jury is allowed to presume a person was intoxicated based only on the refusal. As a second time DUI or DWI offender, if you refuse to take a breathalyzer there is a rebuttable presumption that you were intoxicated. A rebuttable presumption means that unless you can prove that you were not intoxicated, a jury can find you guilty of DUI based solely on the fact that you refused to take the breathalyzer test.

You might be thinking “I only had a few drinks. Wouldn’t it have been easier to prove I wasn’t drunk if I submitted to the breathalyzer test?” Not exactly. MPD has a history of problems with their breathalyzer program. This no-win situation is exactly why the rebuttable presumption for second time DUI offenders is a highly contentious area of the law.

In our legal system, you are innocent until proven guilty—at least that is how the system is supposed to work. For second time DUI offenders who refuse to take the breathalyzer test, you are essentially guilty until you prove yourself innocent. The DC Court of Appeals has not decided whether the rebuttable presumption is constitutional, but many DC Superior Court judges have ruled that it is unconstitutional and have refused to apply it.

Continue reading

engine-start-button-1445913-mThe penalty for second offenses in the District of Columbia for DUI’s and DWI’s include a mandatory minimum jail term of ten days. It’s the only misdemeanor crime in the District of Columbia that carries mandatory minimum jail time. To give you a sense of how serious DC treats DUI second offenses: you could be convicted of assaulting a police officer and destroying property while possessing illegal drugs and the judge could still give you straight probation. On the other hand, you could have a DUI conviction from 14 years ago and get convicted for another DUI where you got pulled over for failing to use a turn signal and blew a .09. In the latter scenario, the judge must sentence you to at least 10 days in jail. The judge will also likely sentence you to a period of supervised probation for one year or more.

First offense DC DUI’s carry a maximum penalty of 180 days and/or a one thousand dollar fine. If the government discovers you have a prior conviction for DUI or DWI, they will file what are called “enhancement papers.” The enhancement papers increase the maximum penalty for the charge to 1 year in jail and/or a $5,000.00 fine. The only upside in this scenario is that a second offense triggers a jury demand. That means under a second DUI offense, you have the right to have your case decided by a jury rather than a judge. First offense DC DUI’s and DWI’s do not trigger a jury demand and they are adjudicated by a judge in Superior Court. That means the judge decides whether you are guilty or not guilty.

To make matters worse for the accused, the law requires that the mandatory 10 days be served consecutive. That means, as a practical matter, the judge cannot sentence you to serve your time on the weekends. That is one of the most absurd provisions in the amended DC DUI law passed in 2012.

Given what is at stake for a second offense, challenging the government’s assertion that you have a prior offense is essential. The law still requires that the government prove beyond a reasonable doubt that the prior DUI (1) be an actual admission of guilt; (2) occurred within the last 15 years; and (3) happened to the same person. The normal way to do this is for the government to produce and file certified copies of the alleged prior conviction. If a DC DUI lawyer does not request this or challenge the government on this point, they will simply file the enhancements based on some entry they see in a law enforcement database they have access to that the defense does not.

The government’s attitude here is particularly problematic in cases where the prior offense allegedly occurred outside of DC. For example, the government may see a notation about a prior DUI in Virginia 8 years ago in a law enforcement database. Without doing their homework, the prosecutor may file the enhancements. It may actually be that the accused was arrested for DUI but ultimately plead guilty to Reckless Driving. That is not an uncommon occurrence in the Commonwealth of Virginia. However, if the defense lawyer does not challenge the government on this issue, the individual remains subject to mandatory minimums and—if convicted—will get 10 days in jail. Therefore, it is extremely important you hire a DC DUI lawyer who understands these issues and has experience challenging the government on the issue of enhancements.

Continue reading

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.

Continue reading

There are a lot of important qualities to look for when hiring a criminal defense lawyer.  You want an attorney who truly cares about their clients.  Its important for a criminal defense lawyer to have a strong and aggressive personality.  Trust me, the government will literally run you over in a criminal case and not think twice about it if you let it.  You absolutely want someone who is strong and willing to fight.

However, in my opinion, the most important thing to look for is an attorney who will be completely honest with his clients.  For example, in the District of Columbia Superior Court almost all first offenders can get probation in DUI cases so long as nothing in the arrest triggers mandatory minimum jail time (for example, a breath score above .20 triggers mandatory minimum jail).  If you walk into a DC DUI lawyer’s office having blown a .14 as a first offender with no other criminal history, no car accident, or other aggravating circumstances and he or she tells you that you could be facing serious jail time, walk out.

Its that simple: walk out.  That DC criminal defense attorney uses knowledge of the criminal justice system to manipulate clients.  What do I mean by that?  If you are a first-offender and get arrested, you have absolutely no idea what to expect.  You go to a lawyer expecting to find out what could happen to you.  You want to know what the worst case scenario is, what the best case scenario, even what are some of the middle case scenarios.  An honest DC DUI lawyer will tell you straight up.  In this hypo, the likely worst case is you get convicted, one year supervised probation, alcohol classes, fines, loss of license, and higher insurance premiums—not significant jail time.

rShzOqzhThe last post discussed some of the background involved in the District of Columbia’s problems it had with its Breathalyzer program. The Metropolitan Police Department not only miscalibrated the machines to read 40 percent higher than they were supposed to but also failed to conduct accuracy testing for a period of almost ten years. As I discussed in Part I, I started an appeal in 2013 for a person who had plead guilty to DUI and served mandatory jail time based on breath scores for a machine that had not been accuracy tested.

Through another attorney he had tried to move to withdraw his guilty plea. The government vigorously contested his motion. While the government had agreed to allow hundreds of people to withdraw guilty pleas that plead or were found guilty during the 17 month period the machines were miscalibrated, it did not want to open up Pandora’s Box for ten years of convictions in which MPD failed to conduct accuracy testing. Unfortunately, the trial judge agreed and denied the motion without a hearing. After I filed my brief, it took the government one year to respond. I did not ask the Court of Appeals to allow my client to withdraw his guilty plea. Rather, I argued that the trial court had abused its discretion by not having a hearing on the motion.

The case was set for oral arguments in April of this year and ultimately the District of Columbia Court of Appeals agreed with me. The Court of Appeals reversed the trial judge and remanded it for a hearing on whether my client was entitled to have a hearing on the motion. Any hearing on that motion would reopen up the flood gates on the District government’s scandalous Breathalyzer program. I planned to subpoena Kelvin King, the officer in charge of the program for all these years, Ilmar Paegle, the whistleblower who discovered the problems, as well as potentially prosecutors and supervisors from the OAG. Questions of what the government knew and when they found it out have to this day never been answered. Did prosecutors at the OAG’s office knowingly allow defendants to plead guilty to DWI in cases based on faulty Breathalyzer scores?

DC DUI

DC DUI

In short, the answer is maybe. The District of Columbia record sealing statute makes Driving under the Influence and Driving while Intoxicated “ineligible misdemeanors.” Accordingly, on its face, the law prohibits sealing of a conviction for driving under the influence. However, a few months ago, I won an appeal that may have opened the door for getting at least some DUI convictions removed from a person’s record.

I will discuss this topic in a two part series. The first part will provide the backdrop of the District of Columbia Record Sealing Act and the problems the District of Columbia had with its Breathalyzer program for about ten years. Part Two will discuss how, because of the Breathalyzer issues and an appeal I won in May of this year, it may in fact be possible to get a DUI conviction taken off someone’s record in limited circumstances.

DC DMV Hearing

DC DMV Hearing

As previously blogged about, one of the collateral consequences of an arrest and/or conviction for a DC DUI can be the revocation or suspension of your DC driver’s license. Police officers who make an arrest for DUI or DWI are supposed to provide the arrestee with a Notice of Proposed Revocation. The Notice instructs the arrestee to request a hearing with the DC DMV. For out of state license holders, you have 15 days to request a hearing. For DC license holders, you only have 10 days to request a hearing. If you do not request a hearing, DMV will revoke your driver’s license (for a DC license holder) or driving privileges in DC (for an out of state license holder) automatically. Accordingly, its extremely important that you request a hearing after being arrested for DUI.

The hearing will be conducted by a DMV Hearing Examiner who in some ways is similar to a judge. There are three possible outcomes of a DMV Hearing. First, the Hearing Examiner may revoke your license for a period of six months or one year. Second, the Hearing Examiner may dismiss the hearing. In that case, your license remains valid and driving privileges remain intact. However, if you are ultimately convicted in the criminal case, then your license would eventually be suspended. Finally, the Hearing Examiner could “take no action,” which means license and driving privileges remain intact until the criminal case is resolved one way or the other.

Its important to hire an experienced DC DUI and DWI lawyer for your DMV hearing. On the one hand, officers will often fail to appear for the hearing. In that case, the potential license suspension will usually (but not always) be dismissed. I always recommend that clients request a hearing as early in the morning as possible because that increases the likelihood the officer will fail to appear. If the officer does show up, a good DC DUI lawyer will spend as much time as the Hearing Examiner will allow cross-examining the officer. You will in all likelihood lose the hearing but the lawyer may get some good testimony from the officer. The hearings are recorded and tape of the hearing can easily be obtained after the fact. If the officer later provides contradictory testimony at trial, your attorney can use the tape from the DMV hearing to impeach the officer. The DMV hearing is conducted under oath, which makes the impeachment in the criminal case even more effective.

In addition, if the officer does show up, you could theoretically ask the Hearing Examiner to take no action until the criminal case is resolved. However, most Hearing Examiners will not accommodate this request as they view the license issue separate from the criminal case.

Continue reading

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.

Continue reading

This post is the second part in the two part series discussing consequences of a DC DUI conviction.  The first part discussed direct consequences, which involved things like probation and jail time.  This discussion is not meant to be a complete list of all collateral beer-vector-1438087-mconsequences for a DC DUI or DWI conviction–just some of the most common.

The first major collateral consequence is the loss of one’s driver’s license or driving privilege.  In the District of Columbia, just an arrest for a DUI can trigger a license suspension or the suspension of one’s driving privileges in the city.  When DC police arrest someone for DUI, they are supposed to issue what’s called a Notice of Proposed Suspension.  The form should be read carefully because it provides instructions on how to prevent an immediate license suspension for the arrest.  The notice instructs the arrestee to apply for a hearing in person at the DC Department of Motor Vehicles within ten days of arrest (or fifteen days for an out of state resident).

If the arrestee does not apply for this hearing, the license or driving privileges (for an out of state resident) will be suspended or revoked.  I recommend immediately contacting an experienced DC DUI lawyer if arrested for DUI.  Many people do not read the notices or are not sure what they are supposed to do to prevent license suspension.  Applying for the hearing will basically freeze the suspension from taking effect.  It will then be up to a hearing examiner at the DMV at some future hearing date to decide whether the suspend the license or driving privileges.

Independent of the possible suspension for a DUI or DWI arrest, if convicted for DUI, the DC DMV will revoke someone’s license or driving privileges for six months or one year.  That is a major collateral consequence of a conviction.  Unlike some states, the DC DMV does not have a mechanism to apply for or obtain a limited license or worker’s license.  That means if convicted for DUI, that person cannot lawfully drive in the District of Columbia at all.

Another major collateral consequence of a DC DUI or DWI conviction is having a conviction for a misdemeanor come up in one’s background check.  That means if applying for a job with the government or a private employer who does background checks, the conviction will appear.  Having the conviction could prevent an employer from hiring the applicant or could prevent the government from extending a security clearance.

A third major collateral consequence is skyrocketing car insurance.  Many insurance companies will drop drivers who are convicted for a DUI offense.  In addition, if convicted for DUI, the only car insurance available may be what’s called “SR-22 Insurance.”  SR-22 is a special type of insurance that carries high premiums and is required by many states, including the District of Columbia, after getting convicted for DUI or DWI.

Continue reading