Articles Tagged with DC Superior Court

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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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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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.

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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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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.

DC Gun Lawyer

A common, unfortunate scenario that often occurs in the District of Columbia goes something like this:

Average out-of-state, law abiding citizen with no prior criminal record travels through or to the nation’s capital. We will call him John.  John commits one of the hundreds of possible District of Columbia traffic infractions while driving.  And this traffic infraction could involve something as innocuous as hanging something from the rear view mirror or having window tint that is too dark.  One of the dozens of law enforcement agencies that has jurisdiction in the District pulls the person over.  We will call him Officer Friendly.  Officer Friendly either asks Johns: “Do you have any weapons in the vehicle” or John, accustomed to the laws of his home state, voluntarily announces to Officer Friendly that he has a firearm in the vehicle.  John then tries to show Officer Friendly his home state concealed carry permit for his lawfully registered firearm.  In John’s mind, all of this is no big deal.

What John does not know is that his life is about to change forever.  Officer Friendly places John under arrest for “carrying a pistol,” which in the District of Columbia is a felony punishable by up to five years in prison.  It is likely when John sees a judge for presentment after arrest, he gets held in jail for at least three days because of the felony charge.  The Court may order pretrial release conditions like drug testing or reporting to the Pretrial Services Agency.  And now John has a serious criminal matter hanging over his head.

Within a few weeks the United States Attorney’s Office for the District of Columbia will indict John through its Rapid Indictment Process (or “RIP”).  The indictment will come down with at least three charges: carrying a pistol, which is a felony, and unlawful possession of a firearm and unlawful possession of ammunition (if the gun has bullets), which are both misdemeanors.  John’s total criminal exposure will be seven years in jail.

To John, the whole situation is absurd, and he wonders if the government will just drop the whole thing.

The sad thing is the government will not just drop it.  Even worse, in that scenario, there is virtually no basis to challenge Officer Friendly’s actions.  No illegal search; no custodial interrogation; no violation of constitutional rights.  John simply thought he was doing nothing wrong so he unknowingly admitted guilt to the officer.  The best John can hope for is to find an experienced DC gun lawyer who can convince the prosecutor or her supervisor to offer him a misdemeanor plea.  In some extremely rare circumstances, the government may offer a type of diversion where if successfully jumps through some hoops, the case will be dismissed.

Fortunately, many of the judges in DC Superior Court have more common sense then the prosecutors and their supervisors.  If John’s DC gun lawyer can get him a misdemeanor plea agreement, the judge will likely impose a very easy sentence.  The sentence could be as little as a small fine or a short period of unsupervised probation.  However, John’s criminal record won’t be eligible for expungement for eight years and his life is forever changed.

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alcohol-1342726-mThis post is the first in a two part series that discusses the consequences of a DC DUI or DWI conviction.  As I have discussed in previous posts, DUI’s in the District of Columbia are heavily enforced and aggressively prosecuted.  A first time DUI offense in the District of Columbia is a misdemeanor with a maximum penalty of 180 days in jail and/or a $1,000.00 fine.  While it is a misdemeanor (as opposed to a more serious felony), the consequences of a DUI conviction can be far reaching.

Because of the serious consequences, it is important that anyone charged with a DC DUI hire an experienced and aggressive DUI lawyer.

This post will discuss some of the main consequences that are common to all DC DUI convictions.  Some people may suffer additional specific consequences unique to their own situation.  For example, a specific employer could find out about the conviction and terminate the individual’s job or an individual could suffer serious family problems as a result.  However, this post will discuss consequences that apply to everyone.

This post is the final part in a three part series that answers frequently asked questions for folks arrested for DUI and DWI in the District of Columbia.

What are the chances this case will just get dropped?

Unfortunately, the chances that the DC Attorney General’s Office will drop a DC DUI or DWI is basically zero.  As I have previously stated, the DC OAG treats DUI cases like murder cases.  Whether its the fact that the local government gets more federal money the more DUI convictions they get or because they have such limited jurisdiction to prosecute crimes in DC, I don’t know.  But I can tell you they will not just drop it.  Accordingly, its important you hire an experience DC DUI attorney who will fight to protect your rights.

This blog is the second post in a two part series that sets out to answer some of the frequently asked questions for DC DUI arrests.

What will happen to my driver’s license if I am arrested for DUI or DWI in DC?

The answer to this questions depends on whether you have a DC driver’s license or an out of state license.  First and foremost, if you have a DC driver’s license and you get arrested for DUI or DWI, you can lose your license just for the arrest.  Its important to request a hearing with the DC Department of Motor Vehicles (or “DMV”) within ten business days of your arrest.  Doing that will stop the license suspension from taking effect.  It will then be up to a hearing examiner at DMV to decide whether to suspend the license or not based on the testimony of the arresting officer.  At the very least, requesting the hearing will at least postpone the license suspension.  If convicted for DUI, you can lose your DC license for six months to one year.

And what if I have an out of state license?

People with an out of state license who get arrested in DC for a DUI or DWI have fifteen calendar days to request a hearing.  Its important to request that hearing even with an out of state license because the person arrested can lose their driving privileges in DC.  What that means is even if you have a valid out of state license, if you get pulled over in DC, you could be arrested for Operating after Suspension (or “OAS”).  OAS itself is a misdemeanor that carries a maximum penalty of one year in jail and/or a five thousand dollar fine.  Depending on your home state laws and regulations, you could also lose your license.  If convicted for DUI, most out of state DMV’s will suspend the person’s license as well.  Most times it depends on whether the appropriate paperwork gets sent from DC to the out of state DMV.

The police never read me my rights, can I get my case dismissed?

Even if the police officers do not read you your rights, the government can still prosecute you for any crime.  Police officers are supposed to advise people of their rights upon making an arrest.  If they fail to do so, and they elicit incriminating information from someone who is in custody, there may be a remedy at trial.  The potential remedy would be having  your DC DUI and DWI lawyer file a motion to suppress any statements.  If the motion is successful, then the government could not use the statements made while in custody against you.

What should I look for in selecting a DC DUI and DWI lawyer?

The consequences for a DUI conviction can involve jail, probation, fines, loss of driving privileges as well as a number of other collateral consequences including exorbitant insurance premiums.  Accordingly, its important you look for a DC DUI lawyer with experience trying cases in DC Superior Court who is familiar with the process and the players, including judges and prosecutors.  Its important to have someone who will focus on your case and be responsive to your questions and concerns.  These cases mostly follow similar patterns and an experienced DUI lawyer can typically give you a range of possible outcomes from best case to worst case scenario.  Finally, you want a DUI lawyer who will fight to protect your rights.

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489547_cocaine_stripesA big story in the news today was last night’s arrest of Republican Congressman from Florida Trey Radel for possession of cocaine in DC.  Congressman Radel is a freshman tea party congressman who represents the 19th congressional district which covers Naples, Fort Myers, and Cape Coral.

He was arrested after he purchased about 3.5 grams of cocaine from an undercover law enforcement officer.  In DC, possession of cocaine is a misdemeanor that carries a maximum penalty of 180 days in jail and/or a $1,000.00 fine.  Unlike most people arrested in DC, Congressman Radel immediately plead guilty at his first court date.  I did not realize what had happened until I walked into court this morning and saw the media frenzy outside the DC Superior Court.

Congressman Radel was sentenced by Senior Associate Judge Robert S. Tignor (a judge a just appeared in front of yesterday) under provisions of the DC Code that would allow his arrest and subsequent guilty plea to be expunged if he successfully completes probation.  Some people refer to this as “probation before judgment” because it puts the defendant on probation before officially entering the judgment.  There is a lot of speculation out there as to whether the Congressman got a sweetheart deal with the United States Attorney’s Office for the District of Columbia because of his position.  As a DC criminal defense lawyer who has litigated close to 300 cases in Superior Court, I can unequivocally say that is not the case.