A Wisconsin man is currently facing up to 30 years in prison after being convicted of his eighth DUI. In the state of Wisconsin, while a single DUI conviction is usually charged as a misdemeanor, multiple DUIs are charged as felonies which carry significantly higher penalties. Unlike in Wisconsin, however, DUIs within the District of Columbia are never charged as felonies.

As previously discussed, in the District, the Office of the Attorney General (OAG) has jurisdiction over the prosecution of DUIs. The OAG can only prosecute traffic misdemeanors like DUIs, reckless driving, and hit and runs. Conversely, if a person within DC is charged with a felony, the United States Attorney’s Office (USAO) has jurisdiction to prosecute the case. Consequently, the OAG will rarely ever charge a DUI as a felony because it does not want to lose jurisdiction over the case. What this means is that no matter how many DUIs you get within DC, you will only ever be charged with a misdemeanor. So while the Wisconsin man mentioned earlier faces up to 30 years in prison for eight DUI convictions, the most time a person will spend in jail for any DC DUI or DWI is up to 1 year.

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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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car-1232347As previously discussed, if you are arrested in the District of Columbia for a DUI, the DMV will most likely suspend or revoke your license for a period of 6 months to 2 years depending on various factors. However, the DC DMV offers an Ignition Interlock Device Program (IIDP) allows DUI and DWI offenders to get their driving privileges back faster.  An ignition interlock device is a breathalyzer connected to a car’s ignition system. To start the car, the driver must first blow into the device to check the alcohol level on his or her breath. The car will only start if the driver’s breath alcohol level is below an accepted amount on the device.

While the device itself may be a bit burdensome on a driver or a somewhat unsightly in your vehicle, DC’s IIDP gives DUI offenders a chance to reduce the suspension or revocation period on their license. What this means is that if your license is suspended because of a DC DUI and you participate in the program, you get a restricted driver’s license which allows you to drive as you once did, so long as your vehicle contains the breathalyzer. Although the program is optional at the moment, it may become mandatory for some DUI offenders.

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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.

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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.

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In DC, a Civil Protection Order (CPO) is very similar to a restraining order. Its a court order that requires a person to do or not to do certain acts. For example, if your ex-spouse is harassing or stalking you, you can file a petition with the court to order your ex-spouse to have no contact with you.

The person who files for a CPO is called the “Petitioner.” The person who a CPO is filed against is called the “Respondent.” Any person can file for a CPO if they feel like they need to protect themselves against someone they have an “intrafamily relationship” with. In general, a CPO will require the respondent to stay at least 100 feet away from the petitioner at all times and to have no contact with the petitioner—including electronic and social media communications. It also usually bars communicating with the person through ha third-party. The terms of a CPO can vary depending on a petitioner’s situation.

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This is the final part of a three part series on DC gun laws.  In the first part, I discussed the current state of DC gun laws and how its important to challenge current gun charges on the basis of the law’s unconstitutionality.  The second part discussed the process for attempting to withdraw a guilty plea on a gun conviction under the District’s old law and weighed the pros and cons of trying to withdraw a guilty plea.  This final part discusses the class action lawsuit filed by Scrofano Law PC and the Law Office of William Claiborne.

In Smith et al v. District of Columbia, we argue that after Palmer was decided, the District government should not have continued to prosecute gun offenses.  We argue that the government’s prosecution of unconstitutional gun laws violated plaintiffs’ Second Amendment rights.  In addition, we argue that the seizure of guns violated the plaintiffs’ Fifth Amendment rights.  As previously discussed, a typical scenario that occurs in the District of Columbia is a law abiding out of state resident visiting the District who is unaware of the District’s draconian gun laws gets pulled over for a minor traffic violation.  That person tells the law enforcement officer that she has a gun in the vehicle—as one is typically trained to do in gun safety courses.  Then, the officer arrests that person and charges them with a felony gun crime.

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u-s-supreme-court-1-1221080The first part of this three part series discussed the current state of the District of Columbia’s gun laws. The second part will discuss the process involved in attempting to withdraw a guilty plea in DC Superior Court and the pros and cons of attempting to get your plea withdrawn.

Ordinarily, moving to withdraw a guilty plea is a very difficult process. Many defense attorneys refer to the process for withdrawing a guilty plea as “pulling teeth.” However, given the negative consequences associated with having a criminal conviction on your record, and the current successful challenges to the District’s gun laws, it may be worth it to go through the process.

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gun-1503923There has been a lot of news lately regarding DC’s gun laws.  If you have been convicted in the District of Columbia for carrying a pistol, unregistered firearm, or unregistered ammunition prior to October of 2014, there may be a legal remedy available to get your conviction overturned.  Part I  will discuss the current state of the District’s gun laws and how you may be able to get your conviction overturned.  Part II will discuss the pros and cons of trying to get your conviction overturned.  Finally, Part III will discuss a class action lawsuit filed by Scrofano Law PC and The Law Office of William Claiborne III on behalf of folks who were prosecuted in DC under the city’s unconstitutional gun laws.

In July of 2014, a federal judge in the District Court for the District of Columbia ruled that the city’s “carrying a pistol” statute was unconstitutional.  At that time, the District maintained an absolute ban on the carrying of a pistol.  No mechanism existed to obtain a concealed carry permit.  In Palmer v. District of Columbia, Judge Scullin ruled that right to bear arms articulated in the Second Amendment of the Constitution extended beyond the right to self defense in the home and to “carry” as well.

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