Articles Tagged with expungement

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.

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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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.