Articles Posted in 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.

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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.

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Police CarIn Washington, DC, two separate agencies prosecute crimes.  The United States Attorney’s Office for the District of Columbia prosecutes felony cases and most misdemeanors.  In addition, the District of Columbia Office of the Attorney General prosecutes traffic crimes–most notably DUI’s.  When someone gets arrested, the arresting officers fills out a number of police reports.  Those reports are then sent to the prosecuting agency.  On any given day in Washington, DC, a specific, often unidentified, prosecutor will go through the reports and decides whether to bring criminal charges against the person arrested.  This process is referred to as “papering” a case.  When the “papering” prosecutor, decides that a particular arrest should not result in the government filing formal criminal charges against the person arrested, that arrest will be “no papered.”

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