Articles Tagged with traffic offenses

nigth-at-hyper-1455387On January 25, 2016, Trump signed two draconian executive orders targeting documented and undocumented immigrants in the United States. There has been much attention regarding the executive orders barring refugees and any citizens’ entry of seven predominately Muslim countries. However, the impact on the criminal justice system regarding immigrants currently in the United States has received far less attention.

The Supreme Court case Padilla v. Kentucky placed an affirmative obligation on criminal defense attorneys to advise immigrant clients about potential immigration consequences for entering into guilty pleas. That seminal case created significant overlap between criminal defense and immigration law. Trump’s recent Executive Orders and their likely impact on the criminal justice system further blur the line between criminal defense and immigration law.

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In recent news, Public Enemy hype man Flavor Flav was arrested for driving under the influence in Las Vegas. This arrest follows a string of other charges plaguing the Rock & Roll Hall-of-Famer including charges for marijuana-related DUI, speeding, open container, operating a vehicle without a valid permit, and battery. Considering the length of the rap legend’s rap sheet, you can imagine how quickly Flavor Flav said “Yeahhh Boiii” when the judge in the most recent case accepted his plea of no contest.  In some states, when you are arrested for a crime, you have the option of pleading three different ways to the charges: not guilty, guilty, or no contest. Generally, the government will offer you some type of deal in order for you to plead guilty or no contest because it gives the government a chance to close your case quickly and secure an easy conviction.  Flava Flav’s case illustrates an important point about handling a DUI or DWI in DC.

In many cases, it is common for the government to offer some sort of lighter sentence in return for a defendant’s guilty plea. In other cases, a defendant may plead no contest (or nolo contendere) and the government will not oppose this plea because the defendant will be punished the same way as if he or she pled guilty. A no contest plea is preferable for some defendants because it allows the defendant to avoid admitting guilt for the crime and the negative effects that a guilty plea may have otherwise had in the future. A nolo contendere plea is basically the Defendant saying: “I may or may not be guilty but I don’t want to take the time and effort to challenge the prosecution.”

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black police cuffsThe District of Columbia Superior Court is unlike many jurisdictions in that it does not have a bail bond system. In fact, there is not a single bail bonds person or business in the entire District. The City Council outlawed bail bonds years ago. So, the question is how is bond determined in a DC criminal case. DC Superior Court has a condition based system that starts with the general principle that most people should be released on their personal promise to appear in court.

That means in most misdemeanor cases, including DUIs, the person arrested will be released and required to sign notice to return for their next court date and appear with their attorney. The notice informs the person that if they fail to appear at the next court date, they could be charged with a separate crime (called a Bail Reform Act violation) that carries a maximum penalty of 180 days and/or a $1,000.00 fine. Often times, however, the judge will also impose court ordered conditions as part of the person’s release. Sometimes these conditions make sense. For example, when a repeat drug offender gets ordered to participate in a drug treatment program. However, many times the conditions imposed can be invasive, burdensome, and even paternalistic.

As previously discussed, the Pretrial Services Agency supervises most of the individuals charged with a crime and released on their personal promise to appear. Pretrial is a giant government bureaucracy that is understaffed and overworked. However, it appears that a recent trend has been a push to get more individuals charged with DUI’s and DWI’s in DC under Pretrial Supervision. At Scrofano Law PC, we recommend anyone charged with a DC DUI, including a first-offender enroll in a private alcohol program in an effort to avoid the requirement to report to and be supervised by Pretrial Services Agency.

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As is the case with most legal inquiries, the answer to the above question is “it depends.”

Whether or not you should appeal your DC DUI conviction depends on what you are looking to get out of the situation. If you are only trying to avoid the trial court’s sentence, maybe an appeal isn’t for you. On the other hand, if you would like to have your conviction overturned and your conviction removed from your record, maybe an appeal is for you. Obviously, all three results are preferable. However, avoiding your sentence is impossible due to time it takes for the parties to brief the appellate issues and the time it takes the DC Court of Appeals to issue a decision.

Having dealt with your DUI at the trial level, you have probably realized that the judicial process is lengthy and time-consuming. The appellate court process is tedious and time-consuming as well. On average, DUI appeals take approximately a year to resolve.

In the District of Columbia, you have 30 days from the trial court’s judgment to note your appeal. After you note your appeal, you must file your Appellant’s Brief within 40 days. The government has 30 days to respond to your brief. Then, you have 21 days to file a reply. At this point, your appeal has already taken 121 days—not including weekends or national holidays. If you factor in the numerous motions for extension of time, which is common for both parties to ask for in order to file briefs, the timetable nearly doubles. Finally, once the parties have filed everything, the case is submitted to the DC Court of Appeals and it issues a decision in months or even a year.

Any jail sentence imposed for a DC DUI conviction will most likely take you less than a year to complete. However, probation could take a year or longer. Thus, even if the DC Court of Appeals ruled in your favor, you may have already served your sentence. Nonetheless, you have a lot to gain from appealing your DUI conviction.

Winning an appeal could result in your conviction being overturned and erased from your record. There are numerous reasons why having your conviction cleared from your record is ideal such as future employment and educational opportunities. Or maybe having your conviction erased from your record is more of a moral victory to you. Just think of the weightlessness you would feel without a conviction hanging over your head.

While the facts of every case are different and winning a DUI appeal is never a guarantee, there are various issues that you can attack to ensure the best possible result for your appeal. For instance, it has recently come to light that the Metropolitan Police Department has a history of problems with their breathalyzer program which resulted in a multitude of wrongful DUI and DWI convictions. Wrongful DUI conviction is just one example of the many issues an experienced appellate lawyer could challenge in your DUI appeal.

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1252046_beer_glassThe Metropolitan Police Department (“MPD”) has video cameras all over their police stations. That means if a person is arrested for a suspected DUI or DWI within the District of Columbia, the person will be video-monitored throughout the arrest and booking process. MPD has multiple stationhouse cameras set up for many reasons including the need of such video for evidentiary purposes in a court. MPD also has a pilot body camera program where selected officers wear body cameras. All video evidence is important in any DC DUI case.

To be convicted of a DUI in DC, the government must prove that a suspected individual was (1) under the influence of alcohol or drugs while (2) operating a motor vehicle. Usually, the government will present evidence such as breathalyzer or other chemical test results and testimony from the arresting MPD officer about behaviors allegedly consistent with intoxication such as motor skills, speech, and ability to follow directions.

Whether or not a person submitted to the breathalyzer test, video evidence of how a person was behaving the night of the incident may be helpful to any DUI case. For instance, an MPD officer might testify that the night of the incident you had glassy eyes, you were stumbling around, and you were slurring your words. It is possible that video evidence—body camera video and stationhouse video—could directly refute the MPD officer’s testimony because it might contradict the officer’s observations. Such evidence is highly effective for use at trial in DC DUI.

It is the policy of MPD to preserve stationhouse video and body camera footage for a period of thirty days. After thirty days, MPD will record over such material. However, in a recent DC DUI case, the DC Court of Appeals held that the government, including MPD, must preserve all video evidence. In some cases, a judge might dismiss a case or impose other sanctions against the government if MPD does not preserve the video evidence.

To determine whether it will dismiss a case due to the government’s loss of video evidence, the judge will evaluate the following three factors: (1) why and how the government lost the evidence; (2) steps the government took to preserve the evidence; and (3) how important the evidence was to the case. If the government fails to preserve video evidence that is potentially useful to your case, it risks violating your due process rights and having its prosecution dismissed.

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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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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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DC DMV Hearing

DC DMV Hearing

As previously blogged about, one of the collateral consequences of an arrest and/or conviction for a DC DUI can be the revocation or suspension of your DC driver’s license. Police officers who make an arrest for DUI or DWI are supposed to provide the arrestee with a Notice of Proposed Revocation. The Notice instructs the arrestee to request a hearing with the DC DMV. For out of state license holders, you have 15 days to request a hearing. For DC license holders, you only have 10 days to request a hearing. If you do not request a hearing, DMV will revoke your driver’s license (for a DC license holder) or driving privileges in DC (for an out of state license holder) automatically. Accordingly, its extremely important that you request a hearing after being arrested for DUI.

The hearing will be conducted by a DMV Hearing Examiner who in some ways is similar to a judge. There are three possible outcomes of a DMV Hearing. First, the Hearing Examiner may revoke your license for a period of six months or one year. Second, the Hearing Examiner may dismiss the hearing. In that case, your license remains valid and driving privileges remain intact. However, if you are ultimately convicted in the criminal case, then your license would eventually be suspended. Finally, the Hearing Examiner could “take no action,” which means license and driving privileges remain intact until the criminal case is resolved one way or the other.

Its important to hire an experienced DC DUI and DWI lawyer for your DMV hearing. On the one hand, officers will often fail to appear for the hearing. In that case, the potential license suspension will usually (but not always) be dismissed. I always recommend that clients request a hearing as early in the morning as possible because that increases the likelihood the officer will fail to appear. If the officer does show up, a good DC DUI lawyer will spend as much time as the Hearing Examiner will allow cross-examining the officer. You will in all likelihood lose the hearing but the lawyer may get some good testimony from the officer. The hearings are recorded and tape of the hearing can easily be obtained after the fact. If the officer later provides contradictory testimony at trial, your attorney can use the tape from the DMV hearing to impeach the officer. The DMV hearing is conducted under oath, which makes the impeachment in the criminal case even more effective.

In addition, if the officer does show up, you could theoretically ask the Hearing Examiner to take no action until the criminal case is resolved. However, most Hearing Examiners will not accommodate this request as they view the license issue separate from the criminal case.

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Virginia-trafficAs a traffic lawyer in Northern Virginia, I find that the most common question I get from clients charged with reckless driving, dui, and other traffic offenses is: will I get points for that? Of course, they should probably be more concerned with whether they will get jail time, (especially in Arlington County), but everyone seems to worry equally about getting points on their license. And this is a legitimate concern. Excessive points on a Virginia driver’s license can lead to dramatically increased insurance costs and even license suspension. No one wants to give their car insurance company more of their hard-earned cash, and most people don’t want to start taking the bus to work. (Although it’s great for the environment!) So for good reason, Virginia traffic defendants want to know whether they’re going to get points, how many, and what can I do to avoid them.

The bad news is, if you are convicted of a traffic offense, you will automatically be assessed the traffic points assigned to that offense by your friendly neighborhood DMV office. For Virginia DUI, Reckless Driving, or Driving on Suspended License defendants (the Big Three, as I call them), that means six points on your license. It is worth noting that the six demerit points is the same point total assessed for Vehicular Manslaughter, which shows how seriously the Commonwealth takes these commonly charged traffic offenses. In addition, these traffic offenses stay on your Virginia driving record for 11 years, although the points themselves remain for only two years. So that’s the bad news. The worse news is that these points are absolutely non-negotiable. You can’t bargain with the prosecutor, the judge, and certainly not with the always helpful employees of the DMV. If you are convicted of a Virginia traffic offense, you will get points on your license. Period.

But there is some good news. Since, although your Virginia traffic lawyer cannot negotiate your license points, he can help you avoid being convicted of the charged offense. This is done by taking your case to trial, and getting a not guilty verdict, or by successfully negotiating with the prosecutor. Depending on many factors, including the evidence against you, your driving record, and your interaction with the police officer during your traffic stop, the prosecutor may be willing to reduce your serious traffic charge to something that carries fewer or no license demerit points. For instance, a Reckless Driving charge may be reduced to Improper Driving (3 points) or simply a defective equipment infraction (0 points). A Driving on Suspended charge (6 points), may be reduced to Driving Without a License (3 points). Your experienced Virginia traffic lawyer will help you decide whether having a trial or pleading to a negotiated plea is the best course of action.

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