Articles Tagged with prosecutions

Breathalyzer

Breathalyzer

In August of 2012, the District of Columbia City Council, with little public comment, amended DC’s DUI/DWI law. Among the many changes included doubling mandatory minimum jail sentences for repeat offenders and cases with high chemical scores. Another change included doubling the maximum penalty for first offenders from 90 days to 180 days. The law also added additional situations in which mandatory minimum jail applied and lowered the blood alcohol score from .08 to.04 for individuals who possess a commercial driver’s license. Buried in the law included provisions that made DC’s hit and run law much broader. Many of the changes brought DC’s DUI law closer to the trend among most states who have created harsher penalties.

However, many of the changes were either arbitrary or say more about local institutional politics than public policy. One major arbitrary and ridiculous change to the law is a provision that bars individuals facing mandatory minimum jail time from serving that time on the weekends. Under the old law, judges routinely when forced to sentence individuals to mandatory jail time allowed them to serve that time on the weekends.

There are a variety of reasons an individual may wish to serve a ten day mandatory minimum sentence over the course of a few weekends.

First and foremost, an individual could lose their job when forced to take a full week or longer off from work. Furthermore, this provision discriminates socio-economically. DUI in particular is a crime that transcends socio-economic barriers. Doctors, lawyers, politicians, and engineers are just as likely to get a DUI as waiters, carpenters, and janitors. Those with salaried positions who get a DC DUI or DWI that triggers mandatory minimum jail time can usually take that time off work as vacation days and still get paid. Wage laborers who get paid hourly don’t have that luxury. They not only don’t get paid; they often lose their jobs when they tell their employer they have to miss the next ten days at work.

What possible public policy goal does barring individuals from serving their statutorily mandated jail time on the weekend? While I certainly recognize my inherent bias to favor the individual over the institution as a DC DUI lawyer, I challenge anyone to make out a public policy rationale for such an arbitrary provision in the law. Certainly, society benefits from having folks who are employed, paying their bills, and paying taxes.

I have often seen how a criminal conviction can wreak havoc on an individual. The conviction can lead to job loss, which in turn can cause some folks to turn to drugs or alcohol to cope with the stress and frustration. Compound that with the loss of driver’s license and other collateral consequences of a DUI conviction. Meanwhile, the person can’t find gainful employment because every time a potential employer does a background check, they find a criminal conviction.

Who is more likely to reoffend? The gainfully employed person who managed to retain employment by serving time on weekends or the unemployed frustrated individual barely getting by? This provision in particular serves no valid public policy and is a shameful example of prosecutorial overreach in the District of Columbia.

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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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