Articles Tagged with Drugs

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.

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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This entry is part two of a three part series explaining what diversion is in the District of Columbia.  The first part discussed the Deferred Prosecution Agreement or “DPA.”  Part II discusses a Deferred Sentencing Agreement or “DSA.”  A DSA is similar to a DPA in that the government will require the person accused of a crime to jump through a series of hoops in exchange for ultimately dropping the charges.  Both the US Attorney’s Office for the District of Columbia or USAO and the DC Office of the Attorney General or OAG offer DSA as a pretrial diversion option in limited circumstances.

file0001722308752For the DC crimes charged by the USAO, the criteria for a DSA is very similar to its criteria for a DPA.  A person must drug test negative to qualify for a DSA.  If the person’s first drug test is negative, then that will satisfy the requirement.  However, if the first test is positive, then the person must drug test until he or she gets two consecutive negative tests.  Usually, a prosecutor will offer a DSA instead of a DPA for somewhat arbitrary reasons.  It could be a prior conviction in the person’s background or something related to a complaining witness in the case.  A DSA is still a good deal in most cases.  However, it requires the person plead guilty where a DPA does not.

A person who enters a DSA must plead guilty to the charged offenses.  The Court will then defer sentencing for six months.  During that six months, the person must complete 48 hours of community service, not get rearrested, and sometimes comply with other conditions like pay restitution or stay away from a person or area.  If the person completes all the requirements in the DSA, at the sentencing, the government will not oppose the person from withdrawing their guilty plea.  Once the guilty plea is withdrawn, the government will dismiss the case.

For traffic related offenses, the OAG offers DSA’s on certain crimes but they have much stricter criteria.  In addition, their requirements are often more rigorous to complete.  For a DUI, the OAG will offer a DSA only if the following conditions are met: no accident can occur, the person must not refuse to take a chemical test, the results of the chemical test must not exceed .10 for blood or breath scores, and the person must not be on probation.  Even if all that criteria is met, the prosecutor may find some other reason to refuse to offer a DSA.

For OAG DSA’s, the person must plead guilty to the offense and the Court usually defers sentencing for six months to a year.  During that six months, the person must pay significant fines, complete a series of alcohol and traffic related classes that cost money to attend, complete community service, not get rearrested, and not commit any traffic offenses.  If the person completes those requirements, at sentencing, the government will not oppose the withdrawal of the guilty plea, and then ultimately dismiss the case.

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In the Washington, DC criminal defense world, a common scenario occurs where an individual gets pulled over by the police, arrested for DUI, and charged with two cases.  This scenario occurs when someone gets pulled over, the officer arrests the person for DUI, and later finds drugs in the vehicle—regardless of whether the drugs actually belong to the person arrested.

In most jurisdictions, that person would get charged for two crimes: drug possession and DUI.  In DC, however, the person will not only get two charges but have two criminal cases against them.  Two separate law enforcement agencies will prosecute each case.  The DC Office of the Attorney General will prosecute the DUI, and the United States Attorneys’ Office for the District of Columbia will prosecute the drug possession charge.  It is common for one set of facts to lead to a prosecution for two separate charges.  But DC criminal law is unique that the same set of facts can lead to prosecution for two separate cases.

That means a local prosecutor will handle the DUI and a federal prosecutor will handle the drug charge.  In most jurisdictions, the same prosecutor would handle both charges which would likely lead to a plea offer for a “one for one” where the client pleads to one charge and the government dismisses the other.  However, because of DC’s unique status as neither a state nor county, people who get arrested in this situation find themselves dealing with two different prosecuting agencies, each with its own sets of policies, rules, and, frankly, agenda.  Without an experienced DC criminal defense lawyer, someone in this situation could find themselves convicted of both crimes in both cases.  They could lose their license, lose their job, be put on probation, or even go to jail.

MarijuanaThe DC Office of the Attorney General is a local agency funded by the DC City Council.  DC criminal law is written in such a way that this office only has jurisdiction over traffic crimes.  In fact, DUI and DWI crimes are the most serious crimes that this office can prosecute.  I have a joke that I like to tell that the DC Office of the Attorney General treats DUI and DWI cases like murder cases because it’s the most serious crime they have jurisdiction over.  As a result, there are very limited options other than plea or go to trial.  The United States Attorney’s Office for the District of Columbia is a federal agency and part of the Department of Justice.  The good news is that it has relaxed its requirements for pretrial diversion (programs where defendants complete community service and other requirements in exchange for dismissals of their case).  However, it is extremely rare in this scenario that one prosecutor will dismiss one case even if the accused pleads in another case.  Therefore, its important to hire a tough, smart DC criminal defense lawyer who is not afraid to try cases.

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