Articles Tagged with arrests

The District of Columbia is unique for a lot of reasons, not the least of which is the fact that there are dozens of police departments whose officers regularly patrol the city. Between the Metropolitan Police Department, the United States Secret Service, the Metro Transit Police, the United States Park Police, the Capitol Police, the myriad university police forces and more, D.C. residents can practically be pulled over or arrested anywhere by any force at any time. That being said, it is always helpful to have an understanding of the different federal and local police forces which have jurisdiction in Washington, D.C. and to know their jurisdictions. Here is an overview of some of the most prevalent police forces in D.C. who can pull you over and potential arrest you for a DC DUI or DWI:

1. District of Columbia’s Metropolitan Police Department (MPD)

The Metropolitan Police, or MPD, is the local police force for the District of Columbia, and its jurisdiction covers the entirety of the District. MPD operates like any other city police department and serves the city as its local police force.  MPD is probably the most common agency to make arrests for DUI’s in DC and many of the MPD officers are certified to administer the standardized field sobriety tests and operate breathalyzer machines.

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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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sleep-1431410What started out as a mission to satisfy a late-night craving, ended in disaster for one Florida man when a police officer found him sleeping in his car at a Taco Bell drive-thru.

As explained in a recent Los Angeles Times article, the driver fell asleep while placing his order early one Friday morning.  After the drive-thru attendant woke the driver up, he pulled his car into a parking spot to wait for his order there.  Not long after the driver parked his car, a police officer who had been dining inside the restaurant, noticed him sleeping.  The driver explained to the officer that he was just waiting on the food he’d ordered, but the officer knew something the man did not—he had actually never ordered his food.  Suspecting the driver may be under the influence, the officer asked him to take a roadside breath test but he refused.  However, the man was eventually charged with DUI after failing a field sobriety test.

This news article demonstrates the confusing nature of what it means to “operate” a motor vehicle while intoxicated or under the influence.  Employing the general standards of common sense, one would think the driver wasn’t in control of his vehicle in this situation because the car was parked and the driver was asleep.  In the District of Columbia, however, common sense does not prevail.

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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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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.

In the past, the best outcome you could typically hope for was a misdemeanor plea agreement to avoid a felony conviction.  Palmer changed things for at least a period of timePalmer declared the District’s gun laws unconstitutional and many cases got dismissed.  However, after Palmer was decided the District government continued to prosecute folks—including out of state residents with lawfully registered firearms in their home state for misdemeanor registration offenses.  However, because Palmer declared that the District’s absolute ban on carrying a pistol violated the Second Amendment, we believe the then-existing registration scheme was also unconstitutional.

We argue the registration scheme was unconstitutional in at least two ways.  First, it made District residency a requirement for registration.  That mean none of the folks arrested who had lawful firearms from their home state could not ever carry in the District solely on the basis of their non-residency.  Second, no mechanism existed to register a firearm for the purpose of carrying.  Palmer recognized that the Second Amendment includes the right to carry for self-defense not just the right to possess a firearm in the home for self-defense.  Furthermore, this whole process of prosecuting individuals from out-of-state is particularly onerous considering the District government expends no resources to create awareness of its strict gun laws.  There are no signs on the metro telling people not to bring their guns into the city.  There are no commercials and no billboards.  Hundreds if not thousands of innocent non-residents have unknowingly ran afoul of these laws and became felons and misdemeanants.

Carrying a pistol is not like a DUI for example where everyone knows it’s a crime to drink and drive.  Many individuals mistakenly believe that if something is legal in their home state, it is legal in other states or the District.  We believe the people who were arrested and prosecuted under these unconstitutional laws deserve compensation for the damages they suffered.

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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.

The law disfavors a defendant withdrawing a guilty plea. Imagine every time someone plead guilty and did not like the sentence then cases would never have finality. The rule that governs the withdrawal of a guilty plea is D.C. Criminal Rule 11 (e), which states:

A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice, the Court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.

The plain text of the rule indicates that it is easier to withdraw a guilty plea before an individual is sentenced. Once a person is sentenced, the only way to withdraw a guilty plea is to “correct manifest injustice.” The first issue that a trial judge would have to resolve on letting someone withdraw a guilty plea is whether the person is entitled to a hearing. Many judges will look for a way to just deny the motion without holding a hearing. However, the law only permits a judge to summarily deny a motion to withdraw guilty plea under the following circumstances:

1. If the motion is palpably incredible;
2. If the motion, even if true, would not entitle the person to relief; or
3. If the motion is so vague it fails to state any legal basis for action by the court.

Typically, the government will aggressively oppose such motions and argue to the judge that the court should not even hold a hearing. However, given the fact that a federal judge in the District of Columbia ruled that its “Carrying a Pistol” statute was unconstitutional, it would be difficult for the Court to find that such a motion fit into any of the three requirements above. For example, there is nothing “palpably incredible” about an individual wanting to get a conviction off his or her record when they plead guilty to a crime that was later declared unconstitutional.

Having said all that, there are some cons for trying to withdraw a plea. First, it will cost time and money and put you back into the court system. Second, if successful, the government could potentially reinstate any charges that were dismissed as part of the plea agreement. However, they could not and would not likely reinstate the felony “carrying a pistol” felony charge as it has been declared unconstitutional.

Of course, the pros in many circumstances may outweigh the cons. If Carrying a Pistol in DC is the only conviction on one’s record (or only felony conviction), there are tremendous benefits for not having a felony conviction on one’s record. Individuals with felony convictions often can’t vote and have difficulty finding jobs and passing background checks, among other consequences.

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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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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.

dutch-weed-2-jpg-1206038-mMarijuana decriminalization took effect a few weeks ago and its important to know the facts before you spark up. First and foremost, marijuana remains illegal under federal law. There is a good chance that at least the United States Park Police and the Capitol Police—both of which have jurisdiction to make arrests in DC—will continue to make arrests for marijuana possession. Whether the United States Attorney’s Office will then prosecute those arrests in federal district court remains to be seen.

Under District of Columbia law, possession of an ounce or less of marijuana is now punishable by a $25.00 citation. The citation is akin to a speeding ticket. It does not carry possible jail time. That means if the Metropolitan Police Department (or “MPD”)—the District’s local police force—stops you and finds less than one ounce of weed, the officer should only give you a citation and let you on your way. However, smoking marijuana in public remains illegal under both federal and local law. That means if you get caught by any police agency smoking weed in public, you will likely get arrested. The penalty for smoking weed in public is akin to getting arrested for possessing an open container of alcohol.

The offense of smoking marijuana in public carries a maximum penalty of 60 days in jail and/or a $500 fine. The Office of the Attorney General will prosecute this new crime. It also remains to be seen how aggressively that office will prosecute that crime. It is possible they could offer diversion for first offenders. It will also be interesting to see how DC Superior Court judges typically sentence people for this crime. The best way to avoid criminal prosecution is to refrain from smoking anywhere in public, which includes in a vehicle, on streets, sidewalks, parks, alleys, parking areas, and any publicly accessible private property (like a store or restaurant).

Selling marijuana remains illegal and will likely be prosecuted aggressively. In my view, this provision is one of the major flaws in the new law. The City Council has now likely increased demand for a substance that remains illegal to sell. That is one of the reasons Scrofano Law supports full scale legalization (like Colorado and Washington). However, this law is a step in the right direction.

Finally, MPD officers can no longer use the smell of marijuana as reasonable suspicion to search someone or a vehicle. There is an exception to this provision, however, where police suspect someone is driving under the influence of marijuana, which remains criminalized. I expect to see an increase in arrests for driving under the influence of marijuana.

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