Articles Tagged with OAG

In the District of Columbia, the Office of the Attorney General (OAG) is responsible for prosecuting DUIs and it takes this job very seriously. While other jurisdictions routinely offer favorable deals for DUI offenders, DC rarely does. What that means is that often times you would be no better off pleading guilty than you would be if you took the case to trial and lost. Your best bet at beating a DUI conviction is going to trial and holding the government to its burden of proof.

To be convicted of a DUI, the government must prove that you were (1) operating a motor vehicle (2) while under the influence of alcohol or drugs. While two elements may not seem like much to prove for the government, there are numerous ways to challenge the evidence against you on both elements.

The first element of the DUI offense is the trickiest element to challenge because DC law has a broad definition of what it means to operate a motor vehicle. Operate is defined as actual physical control over the vehicle. Physical control means capable of putting the vehicle into movement or preventing movement. If you were pulled over and the police witnessed you driving, it is hard to say you were not operating the vehicle.

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

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?

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.

Continue reading

In DC criminal law, people often ask what diversion is.  This post is the first part in a three part series that answers that question.  Diversion is a program offered by the prosecution where when an individual meets certain conditions, the government will dismiss the charges against that person.  Several types of diversion programs exist in DC.  Having a criminal defense lawyer who can explain the diversion options is important when you are charged with a crime in DC.  Before understanding what type of diversion options exist, its important to know the difference between the two government agencies in DC that prosecute crimes.

As previously mentioned, the DC Office of the Attorney General (OAG) prosecutes only traffic misdemeanors.  The United States Attorney’s Office for the District of Columbia (USAO) prosecutes all other misdemeanors and felony crimes.  Felonies are crimes that carry a maximum penalty of more than one year in jail.  That difference is important in and deserves further discussion in a future post.  The United States Attorney’s Office has more flexibility in diversion programs and also has more options with more reasonable requirements.  So, the first couple of posts on this topic will discuss diversion options the USAO offers.  I will discuss the OAG’s diversion police in a later post for those primarily concerned with options when they get a DC DUI.

My favorite option is a deferred prosecution agreement or DPA.  In a DPA, the accused does not have to plead guilty or admit responsibility.  The government and the accused sign a contract that basically says the person will not get rearrested and will complete 32 hours community service.  In exchange the government will postpone the prosecution of the case for four months.  If the person comes back to court in the four months and complies with the agreement, the government will dismiss the case.  During the four months period, the accused is not supervised by any government agency (like Pretrial Services or Probation).  Whether to offer a DPA is solely in the government’s discretion.  Any DC criminal lawyer who promises a guaranteed DPA is not being candid with his or her client.

It is a major benefit for an individual to enter into a DPA as a way to get their case dismissed.  As I mentioned, the person does not have to plead guilty to get the benefit of a DPA.  There can be a lot of bad consequences for pleading guilty to a charge even if that charge is later dismissed.  With a DPA, there is no guilty plea, which is an important difference between a deferred sentencing agreement (to be discussed in Part II of this post).  Finally, the government requires that an individual test negative for drugs and have a very limited criminal record to get a DPA.  Also, certain offenses are not DPA eligible.  If the person’s first drug test is negative, then that satisfies the drug test requirement.  If the first drug test is positive, the person must drug test until he or she gets two consecutive negative drug tests.

Continue reading

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.

Continue reading