Articles Posted in DUI

A likely consequence of a DC DUI conviction is the suspension or revocation of your license.  In the District of Columbia, if you are convicted for a DUI, the DMV will automatically initiate procedures against you to either suspend or revoke your driver’s license.  The DC DMV takes this step regardless of whether you are actually convicted of the DUI.  We have previously discussed tips for preventing the license suspension while the case is pending.  If you ultimately get convicted, there is virtually no way around suspension.  If your license has been suspended or revoked in the District, there are important things to know to reinstate your driving privileges.

First, you must wait to reinstate your license after the suspension time or revocation period has ended.  What this means is that you are not eligible for reinstatement within a certain period of time after your arrest, and the time period varies depending on whether you submitted to or refused to take the breathalyzer test during your arrest.

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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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In the District of Columbia, when an individual gets arrested for a DUI or DWI, the police officer is supposed to serve the individual a “Notice of Proposed Revocation.” The Notice instructs the person arrested that they must request a hearing with DC DMV within 10 days otherwise their DC driver’s license will be suspended. If the person arrested has an out of state license, the proposed notice of revocation instructs them to request a hearing within 15 days. If the arrested person with an out of state license fails to request a hearing within 15 days, that person will lose their driving privileges in In the District of Columbia.

If an individual fails to request the hearing but continues to drive they could get arrested for operating after suspension (“OAS”) or operating after revocation (“OAR”). Those crimes are separate misdemeanors that carry a maximum penalty of one year in jail and/or a $5,000.00 fine. While most people get unsupervised probation if convicted for those crimes, getting arrested while having a pending DUI case can definitely lead to some jail time. In addition, convictions for OAS and OAR also carries 12 points with the DC DMV. A DUI combined with an OAR or OAS arrest or conviction can lead to serious license problems. Its like digging a hole you cannot get out of.

Accordingly, its extremely important that anyone arrested for a DC DUI request a hearing within the time limits set forth in the Notice. The location to set a DMV hearing is 301 C Street NW, Washington, DC 20001. The Notice provides several basis to revoke or suspend a license or driving privileges. Refusing to take a breathalyzer is a basis to issue the Notice. Simply getting arrested for DUI is enough to get issued a Notice regardless of whether the arrested person blows in the breathalyzer. It’s the officer’s responsibility to properly serve the Notice on the arrested person and get it to the DC DMV. In rare cases, the officer may forget to submit the paperwork and the arrested person will go to the DMV anyway. In that situation, the DMV will usually tell the arrested person that they have nothing on file. In that situation, the person’s driving privileges are safe unless and until they get convicted for a DC DUI, DWI, or OWI.

When a person requests the hearing, that request will toll the suspension at least until the criminal case is over. For example, lets say you get arrested on January 1st. If you do nothing, your driving privileges will be suspended or revoked. If you request a hearing and let’s say it gets set for February 7, your license will remain valid at least until February 7. If the officer fails to show up for the February 7 hearing, the DMV will take no action against the license. That means you will only lose your license if you ultimately get convicted in the criminal case. If you hire an aggressive DC DUI lawyer and get the case dismissed or you win at trial, you will never lose your license in the process under that scenario. However, if win the DMV hearing and ultimately get convicted, DC DMV will suspend your license for 6 months if you blew and one year if you refused to blow in the breathalyzer.

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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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1423322313o0gx3If you operate a vehicle in the District, DC law states that you have given consent to submit to a breathalyzer test if you get stopped by the Metropolitan Police Department (“MPD”) for suspected DUI or DWI. However, MPD is not going to force you to take a breathalyzer test. You can refuse to submit to testing. At Scrofano Law PC, while the facts of every case are different, we believe that if you have had even a drop of alcohol, refusing to take a breathalyzer test will usually better protect you and your rights.

To convict someone of DUI, the government must prove that the person (1) operated a motor vehicle in DC, and (2) was intoxicated. Without breathalyzer results, it is more difficult for the government to prove that you were intoxicated. DC criminal laws allow the government to use your refusal to take the breath test as evidence that you were intoxicated. What this means is that the government will provide a judge with proof that you refused to take the test and argue that you must have refused because you were feeling guilty about drinking and driving.

For first time DC DUI or DWI offenders who refuse to take a breathalyzer test, the government has to provide more evidence than just your breathalyzer refusal to prove that you were intoxicated. For example, the government will have an MPD officer testify about the way you were acting when you got pulled over and why they thought you were intoxicated based on your actions—like odor of alcohol on breath, performance on the SFST’s, and other observations. For people charged with a second DUI or DWI offense in DC who refuse to take a breathalyzer test, a different legal standard applies.

DC DUI and DWI laws state that if a second time DC DUI offender refuses to take a breathalyzer test, a jury is allowed to presume a person was intoxicated based only on the refusal. As a second time DUI or DWI offender, if you refuse to take a breathalyzer there is a rebuttable presumption that you were intoxicated. A rebuttable presumption means that unless you can prove that you were not intoxicated, a jury can find you guilty of DUI based solely on the fact that you refused to take the breathalyzer test.

You might be thinking “I only had a few drinks. Wouldn’t it have been easier to prove I wasn’t drunk if I submitted to the breathalyzer test?” Not exactly. MPD has a history of problems with their breathalyzer program. This no-win situation is exactly why the rebuttable presumption for second time DUI offenders is a highly contentious area of the law.

In our legal system, you are innocent until proven guilty—at least that is how the system is supposed to work. For second time DUI offenders who refuse to take the breathalyzer test, you are essentially guilty until you prove yourself innocent. The DC Court of Appeals has not decided whether the rebuttable presumption is constitutional, but many DC Superior Court judges have ruled that it is unconstitutional and have refused to apply it.

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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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beer-delivery-system-1-1246534-mI usually advise my clients to enroll in a private alcohol program after getting arrested for a DC DUI or DWI. For most people who get arrested for DUI, the police will release them at the station after several hours with a Citation to Return to Court. The citation gives them a date is for the Court to arraign the person on the charge of DUI and any other additional charges based on the police officer’s allegations.

At the arraignment, the prosecutor from the Office of the Attorney General will ask for several release conditions. The standard release conditions include (1) do not drive without a valid permit; (2) do not drive after the consumption of drugs or alcohol; and (3) report to the Pretrial Services Agency for a full screening and assessment. In almost all DC DUI cases, traffic judges in Superior Court will agree with government’s request and impose those conditions.

Now, the first two are no brainers and easy to comply with. Do not drive without a valid permit is just what it means. If you have a valid license, drive all you want. If you don’t, then don’t drive. If you get caught driving with a suspended license while under that release condition, you can not only get arrested for operating after suspension but also be charged with contempt of court. This condition is particularly important where the person’s license gets suspended as a result of the DC DUI arrest. The second condition is also an easy one. If the person has even one sip of alcohol or ingests any type of drugs, do not drive.

The third condition is where most folks have issues. The Pretrial Services Agency is an agency that supervises individuals with a Superior Court case. It is basically where the Court puts someone on probation while their case is pending. I will save a discussion on what Pretrial does to the presumption of innocence for a future posting. The point is reporting to Pretrial can be degrading, disruptive to one’s life, and very uncomfortable.

Each individual is assigned a case manager who is often overworked with hundreds of other individuals under their supervision. Reporting requirements make individuals charged with a DC DUI come down to the courthouse once per week to wait in line during business hours to report. Reporting can be particularly cumbersome for people who live or work in Maryland or Virginia. Office visits for the initial assessment can take hours. If the individual is ordered to drug test, they must come down to the courthouse once per week, wait in a long line, then urinate in a cup while a Pretrial employee watches their genitals against a mirror. This is done to ensure people don’t sneak in another person’s urine to avoid detection of drugs. However, in my view, it is a humiliating and dehumanizing process that is unfortunately ordered routinely in Superior Court.

So, how can one avoid reporting to Pretrial? Prior to the arraignment, enroll in a private alcohol program. Most judges will refrain from imposing the Pretrial requirement as a court ordered condition when their DC DUI attorney informs the Court the person has already enrolled in a private alcohol program. Accordingly, like I said, I advise most all clients to do that. Sometimes getting arrested for DUI is a red flag that an individual has an alcohol issue that needs treatment. Others may get arrested for a DC DUI or DWI and its truly an isolate incident. In either case, enrolling in a private alcohol program can help the person avoid Pretrial.

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There are a lot of important qualities to look for when hiring a criminal defense lawyer.  You want an attorney who truly cares about their clients.  Its important for a criminal defense lawyer to have a strong and aggressive personality.  Trust me, the government will literally run you over in a criminal case and not think twice about it if you let it.  You absolutely want someone who is strong and willing to fight.

However, in my opinion, the most important thing to look for is an attorney who will be completely honest with his clients.  For example, in the District of Columbia Superior Court almost all first offenders can get probation in DUI cases so long as nothing in the arrest triggers mandatory minimum jail time (for example, a breath score above .20 triggers mandatory minimum jail).  If you walk into a DC DUI lawyer’s office having blown a .14 as a first offender with no other criminal history, no car accident, or other aggravating circumstances and he or she tells you that you could be facing serious jail time, walk out.

Its that simple: walk out.  That DC criminal defense attorney uses knowledge of the criminal justice system to manipulate clients.  What do I mean by that?  If you are a first-offender and get arrested, you have absolutely no idea what to expect.  You go to a lawyer expecting to find out what could happen to you.  You want to know what the worst case scenario is, what the best case scenario, even what are some of the middle case scenarios.  An honest DC DUI lawyer will tell you straight up.  In this hypo, the likely worst case is you get convicted, one year supervised probation, alcohol classes, fines, loss of license, and higher insurance premiums—not significant jail time.