Articles Tagged with Diversion

handcuffs-1156821-mIn the District of Columbia, the Metropolitan Police Department (“MPD”) makes numerous arrests for solicitation of prostitution through sting operations. Sting operations
commonly involve undercover officers attempting to exchange sexual favors for money or vice versa. Due to the undercover nature of MPD’s sting operations, many people arrested for solicitation attempt to assert an entrapment defense. However, entrapment is a difficult defense to assert in a DC Solicitation case.

Under DC Solicitation laws, you must assert an entrapment defense for it to apply in your solicitation case. A person is entrapped if law enforcement officials induced a person to commit a crime which she or he would not otherwise have committed. To assert an entrapment defense, you must first make a showing that MPD induced you to engage in the solicitation of prostitution. This rule means that you have to present some evidence to show that the police coerced, threatened, or fraudulently persuaded you to commit a crime.

Showing inducement can be challenging though because undercover officers are allowed to use fake names, false appearances, and decoys—among other tactics—to legally persuade you to engage in solicitation of prostitution. Officers are also permitted to initiate discussions about solicitation and exchange money involved in the crime. Furthermore, a mere request by a law enforcement official to engage in criminal activity, standing alone, is not an inducement. Unfortunately, the police rarely record the sting operations, which leaves the only evidence of the crime as the undercover officer’s recantation of what the parties supposedly said.

Once a defendant makes an inducement showing, the government must then prove that the defendant was ready and willing to engage in the solicitation of prostitution. To determine whether a defendant was ready and willing to engage in the solicitation of prostitution, the fact-finder can consider evidence such as the defendant’s prior similar conduct, the defendant’s reputation or character, the defendant’s acceptance to do the crime, or other circumstantial evidence. This means that the government can argue that going to a hotel in response to an online ad can show intent to engage in the crime of solicitation.

Usually, evidence of your past conduct and your character is not admissible in court but by asserting an entrapment defense you permit the government to introduce such evidence. This fact is another reason why asserting an entrapment defense can be problematic because evidence about a defendant’s past conduct or character may be more harmful to the case. Depending on the individual’s background, this issue may or may not be a problem for asserting an entrapment defense. Because the entrapment defense is difficult, often times its better to seek diversion or try and get the case dismissed on a discovery issue or otherwise.

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black-and-white-gun-1409524-mLast year, in Palmer v. District of Columbia, a federal judge in the United States District Court for the District of Columbia held that the District of Columbia’s carrying a pistol statute was facially unconstitutional. In a lawsuit that had been pending for several years, the judge granted the plaintiffs’ request for an injunction. The judge enjoined the city from enforcing provisions of the D.C. Code that imposed an absolute bar on carrying pistol in the District of Columbia.

The Court also held that the Court could not categorically bar out of state residents from possessing a firearm in the District of Columbia solely on the basis that they are out of state residents. The consequences of this ruling were far reaching and the full effect of this decision has yet to be seen.

After a few days, the judge in the Palmer case, the judge granted the government’s request for a stay so that the District could come up with a licensing scheme that complied with the court order. The practical result was that hundreds of people charged with felony carrying a pistol in DC Superior Court had their charges dropped by the United States Attorney’s Office for the District of Columbia. Folks charged with felon in possession were not affected by Palmer.

The Attorney General’s Office for the District of Columbia (“OAG”) re-filed misdemeanor charges against most of the people who’s carrying a pistol charge was dismissed. The OAG has jurisdiction over mostly traffic crimes—like DC DUIs and DC hit and runs. However, OAG also has jurisdiction over two misdemeanor gun charges—unregistered firearm (“UF”) and unregistered ammunition (“UA”).

It appeared that the USAO acknowledged that it could no longer prosecute individuals for carrying a pistol under a statute that a federal judge found unconstitutional. The OAG took the position that Palmer did not impact the registration crimes—UA and UF. So, while many people were fortunate to have their felony charges dropped, they still face prosecution for two serious misdemeanors. Litigation is ongoing in DC Superior Court as to the impact, if any, Palmer has on the registration crime.

At Scrofano Law PC, we are aggressively challenging the constitutionality of the UF and UA charges as applied to out-of-state residents who have lawfully registered their firearms in their home state. The main takeaway from Palmer is that the Second Amendment guarantees the right to keep and bear arms for self-defense. Palmer thus recognized a right to carry as part of the Second Amendment. The District’s registration scheme makes it impossible to exercise that right for nonresidents who cross into the District.

In addition, the District passed a new carrying a pistol without a license law in October of 2014 to theoretically comply with the judge’s decision in Palmer. However, the plaintiffs in Palmer have challenged that new law and moved for contempt against the District arguing that the new law is just as restrictive as the old law.  That litigation is ongoing.

In reality, if the government simply took a reasonable approach to offering diversion for law-abiding, nonresidents who happen to get arrested for possessing a firearm in the District, they would avoid many of these challenges. The OAG and USAO will almost categorically refuse to offer folks in this situation some type of deal that involves community service in exchange for a dismissal. For whatever policy justification, the powers that be seem to think it benefits society to have law-abiding first offenders who did not know how strict the District’s gun laws convicted of crimes.

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night-life-2-1438558-3-mUsing a fake ID to get into a bar, while certainly not advisable, is as common for college students as sleeping through Friday morning classes.  In the District of Columbia, like most places, using a fake id is a crime.  The DC City Council has passed laws that, to some extent, recognize how common a scenario using a fake ID to get alcohol is.  For a first offense, the law provides for a diversion program where, if successfully completed, can result in the person arrested getting their case dismissed and their record expunged.

The offense is typically referred to as an ABC violation.  If caught with a fake ID by law enforcement in DC, you will be arrested and booked for this crime.  You will be prosecuted by the Office of the Attorney General for the District of Columbia.  Fortunately, they do not prosecute these crimes as aggressively as DUI offenses.  However, and what will be the subject of a future posting, a DUI arrest for an underage drinking is treated much differently than an ABC violation.

After being arrested for an ABC violation, you will likely be released from the police station after a few hours with a citation to return to court on a specific date.  If you fail to appear on that date, the Court can issue a warrant for your arrest.  Before going to the citation date, I cannot stress the importance of contacting a DC underage drinking lawyer.  Your lawyer can help explain to you what to expect in the process and negotiate a diversion agreement with the prosecutor. The typical diversion agreement involves doing community service and paying a fine in exchange for dismissal of the case.

Once dismissed, you have to wait six months to have your record expunged.  Once the six months expires, your DC underage drinking lawyer can file a motion on your behalf to have the arrest expunged.  You can expect the expungement process to take a few months but in the end you will get out of the situation without having a criminal record.

The diversion program and six month expungement are codified in the DC Code.  However, this program applies to first offenders.  If you get caught using a fake ID a second time, all bets are off.  In that case, you would be prosecuted like any other misdemeanor and would have to either plead guilty or take your case to trial.  In addition, diversion applies where someone uses a real ID that belongs to an older person who looks like them (like an older sibling).  Where the ID is actually forged from some type of computer program or otherwise, there could be serious implications under federal law where the DC diversion program does not apply.  Finally, police often notify the arrestee’s university and the university may take disciplinary action as well.  While the law is set up so that the arrest does not destroy your future, any arrest is a serious matter.

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This post is the final part in a three part series that answers frequently asked questions for folks arrested for DUI and DWI in the District of Columbia.

What are the chances this case will just get dropped?

Unfortunately, the chances that the DC Attorney General’s Office will drop a DC DUI or DWI is basically zero.  As I have previously stated, the DC OAG treats DUI cases like murder cases.  Whether its the fact that the local government gets more federal money the more DUI convictions they get or because they have such limited jurisdiction to prosecute crimes in DC, I don’t know.  But I can tell you they will not just drop it.  Accordingly, its important you hire an experience DC DUI attorney who will fight to protect your rights.

489547_cocaine_stripesA big story in the news today was last night’s arrest of Republican Congressman from Florida Trey Radel for possession of cocaine in DC.  Congressman Radel is a freshman tea party congressman who represents the 19th congressional district which covers Naples, Fort Myers, and Cape Coral.

He was arrested after he purchased about 3.5 grams of cocaine from an undercover law enforcement officer.  In DC, possession of cocaine is a misdemeanor that carries a maximum penalty of 180 days in jail and/or a $1,000.00 fine.  Unlike most people arrested in DC, Congressman Radel immediately plead guilty at his first court date.  I did not realize what had happened until I walked into court this morning and saw the media frenzy outside the DC Superior Court.

Congressman Radel was sentenced by Senior Associate Judge Robert S. Tignor (a judge a just appeared in front of yesterday) under provisions of the DC Code that would allow his arrest and subsequent guilty plea to be expunged if he successfully completes probation.  Some people refer to this as “probation before judgment” because it puts the defendant on probation before officially entering the judgment.  There is a lot of speculation out there as to whether the Congressman got a sweetheart deal with the United States Attorney’s Office for the District of Columbia because of his position.  As a DC criminal defense lawyer who has litigated close to 300 cases in Superior Court, I can unequivocally say that is not the case.

One of the first questions clients often ask me when charged with a DUI is: What are the chances the government will dismiss my case?sign-no-alcohol-1231362-m

I always answer the same, with a resounding “Zero.”  That’s because prosecutors in the District of Columbia take DUI enforcement extremely serious.  The DC Office of the Attorney General will aggressively prosecute every DC DUI arrest—lack of evidence, havoc on an individual’s livelihood, mitigating circumstances all be damned.

The example that most exemplifies the government’s policy towards DUI prosecutions is about a colleague of mine who had a client that blew a literal 0.00 on the breathalyzer machine.  My colleague requested that the government dismiss the case.  The government refused because the officer suspected the client was under the influence of drugs.  When a urinalysis came back months later that revealed the client had no drugs in her system, my colleague requested that the government dismiss the case.  The government refused and stated that the officer suspected the client had taken “inhalants,” which go undetected in urine tests.  That is the kind of uphill battle defense lawyers face in trying to convince the government to abandon a meritless (or at least questionable) prosecution.

Clients often are relieved to discover that their breathalyzer scores fall below the 0.08, which is the legal limit.  I mean you passed the breathalyzer why would they prosecute you?  In those cases, the government will sometimes offer a Deferred Sentencing Agreement but they will not dismiss the case.  What few people know is that the government can proceed on a theory of proving the case by DUI rather than DWI.  DUI requires that the government prove beyond a reasonable doubt that one was intoxicated.  Such proof can come from a police officer’s observations that the person smelled of alcohol, or had slurred speech, or had troubling walking or standing.  In addition, the government can put evidence that the person failed the Standardized Field Sobriety Tests (“SFST’s”).

If a judge finds that the government proved the individual was intoxicated even with a low breathalyzer score, the person can be convicted of DUI.  Its always interesting at trial how the government will argue that a breath score over 0.08 is infallible evidence of one’s intoxication only to completely minimize its importance when the score is below 0.08.  When it comes to DUI prosecutions, the government is relentless.  I agree that drunk driving is a serious concern in our society.  DUI related deaths are particularly tragic because they are avoidable.  Every loss of life is tragic.  However, continued “at all costs” enforcement of DUI laws is not responsive to the successes we have had as a society in reducing DUI tragedies.

I do not agree with the way the government prosecutes DUI’s.  I have seen too many people’s lives ruined.  In many cases, it’s a person’s first arrest, their bad driving was minimal (dark tinted windows, failure to use a blinker, etc.), and they often have low breath scores.  Folks can lose their licenses, their jobs, and often their ability to provide for their family.  They are required to pay for and attend expensive alcohol classes put on by organizations that have contracted with the city government.  They must pay court costs, fines, report to probation officers, and at times lose their liberty.  Pretrial diversion is extremely limited for DUI’s.

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This post is the third and final in a three part series that addresses what diversion is in DC criminal law.  The first part discussed deferred prosecution agreements.  Part two discussed deferred sentencing agreements.  This part will discuss the DC Superior Court’s problem solving court options that include Mental Health Court and the Superior Court Drug Intervention Program or “Drug Court.”  These options are available to people charged by the United States Attorney’s Office and if successfully completed can result in the dismissal of one’s case.gavel

In both courts, the central focus is treatment rather than incarceration.  In Drug Court, the focus is exclusively on the person charged getting drug treatment.  In Mental Health Court, the focus is typically on both drug treatment and mental health treatment, which typically go hand in hand where someone suffers from both a mental health illness and a drug addiction.  If someone completes either court successfully, the government will usually dismiss that person’s criminal case.  Not everyone can enter these programs.  For both problem solving courts, the person must be approved by both either the United States Attorney’s Office (“USAO”) or the Pretrial Services Agency or both.  So, it is important, if you are interested in resolving your criminal case through a problem solving court, to have a DC criminal defense lawyer who will advocate on your behalf to help get you into the court that most fits your situation.

The government has the power to veto someone’s entrance into Mental Health Court.  Accordingly, the USAO has specific eligibility requirements before it lets someone into this problem solving court.  Individuals with certain disqualifying convictions on their record may not be eligible.  In addition, if the person has received the benefit of the program in the past, then the government may bar entry.  If the government approves the person for Mental Health Court, the person still may not be eligible.  The Pretrial Services Agency must also screen the individual.  The individual must have a verified mental health illness, be eligible to be supervised by the Specialized Supervision Unit, and be linked to a mental health services provider.  If both the government and Pretrial Services approve the individual for Mental Health Court, then the person will be admitted into the program.

For Drug Court, the government no longer has veto power over an individual’s entrance into Drug Court.  However, Pretrial Services must approve the person.  For entrance into Drug Court, certain violent past convictions may disqualify someone.  In addition, the person must have a drug problem beyond marijuana use.  A typical pretrial condition for someone arrested in DC is to drug test weekly.  If the person’s drug tests come back consistently positive and they meet other requirements, Pretrial Services may approve the individual for Drug Court.  Before entry into Drug Court, the person must complete an Addiction Severity Index or “ASI.”  For an ASI, a Pretrial Services representative will conduct an interview about the person’s drug usage.  The results of which may dictate whether the person gets into Drug Court and what treatment recommendation Pretrial Services will make to the judge.

For both problem solving courts, successful completion requires the person to test negative for drugs, complete any drug treatment options recommended, come to court when scheduled, and (for Mental Health Court) keep up with mental health services.  Supervision is extensive and both programs are relatively rigorous.  However, for individuals in need of services, it is a way to address underlying problems and hopefully get a criminal case dismissed.

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This entry is part two of a three part series explaining what diversion is in the District of Columbia.  The first part discussed the Deferred Prosecution Agreement or “DPA.”  Part II discusses a Deferred Sentencing Agreement or “DSA.”  A DSA is similar to a DPA in that the government will require the person accused of a crime to jump through a series of hoops in exchange for ultimately dropping the charges.  Both the US Attorney’s Office for the District of Columbia or USAO and the DC Office of the Attorney General or OAG offer DSA as a pretrial diversion option in limited circumstances.

file0001722308752For the DC crimes charged by the USAO, the criteria for a DSA is very similar to its criteria for a DPA.  A person must drug test negative to qualify for a DSA.  If the person’s first drug test is negative, then that will satisfy the requirement.  However, if the first test is positive, then the person must drug test until he or she gets two consecutive negative tests.  Usually, a prosecutor will offer a DSA instead of a DPA for somewhat arbitrary reasons.  It could be a prior conviction in the person’s background or something related to a complaining witness in the case.  A DSA is still a good deal in most cases.  However, it requires the person plead guilty where a DPA does not.

A person who enters a DSA must plead guilty to the charged offenses.  The Court will then defer sentencing for six months.  During that six months, the person must complete 48 hours of community service, not get rearrested, and sometimes comply with other conditions like pay restitution or stay away from a person or area.  If the person completes all the requirements in the DSA, at the sentencing, the government will not oppose the person from withdrawing their guilty plea.  Once the guilty plea is withdrawn, the government will dismiss the case.

For traffic related offenses, the OAG offers DSA’s on certain crimes but they have much stricter criteria.  In addition, their requirements are often more rigorous to complete.  For a DUI, the OAG will offer a DSA only if the following conditions are met: no accident can occur, the person must not refuse to take a chemical test, the results of the chemical test must not exceed .10 for blood or breath scores, and the person must not be on probation.  Even if all that criteria is met, the prosecutor may find some other reason to refuse to offer a DSA.

For OAG DSA’s, the person must plead guilty to the offense and the Court usually defers sentencing for six months to a year.  During that six months, the person must pay significant fines, complete a series of alcohol and traffic related classes that cost money to attend, complete community service, not get rearrested, and not commit any traffic offenses.  If the person completes those requirements, at sentencing, the government will not oppose the withdrawal of the guilty plea, and then ultimately dismiss the case.

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In DC criminal law, people often ask what diversion is.  This post is the first part in a three part series that answers that question.  Diversion is a program offered by the prosecution where when an individual meets certain conditions, the government will dismiss the charges against that person.  Several types of diversion programs exist in DC.  Having a criminal defense lawyer who can explain the diversion options is important when you are charged with a crime in DC.  Before understanding what type of diversion options exist, its important to know the difference between the two government agencies in DC that prosecute crimes.

As previously mentioned, the DC Office of the Attorney General (OAG) prosecutes only traffic misdemeanors.  The United States Attorney’s Office for the District of Columbia (USAO) prosecutes all other misdemeanors and felony crimes.  Felonies are crimes that carry a maximum penalty of more than one year in jail.  That difference is important in and deserves further discussion in a future post.  The United States Attorney’s Office has more flexibility in diversion programs and also has more options with more reasonable requirements.  So, the first couple of posts on this topic will discuss diversion options the USAO offers.  I will discuss the OAG’s diversion police in a later post for those primarily concerned with options when they get a DC DUI.

My favorite option is a deferred prosecution agreement or DPA.  In a DPA, the accused does not have to plead guilty or admit responsibility.  The government and the accused sign a contract that basically says the person will not get rearrested and will complete 32 hours community service.  In exchange the government will postpone the prosecution of the case for four months.  If the person comes back to court in the four months and complies with the agreement, the government will dismiss the case.  During the four months period, the accused is not supervised by any government agency (like Pretrial Services or Probation).  Whether to offer a DPA is solely in the government’s discretion.  Any DC criminal lawyer who promises a guaranteed DPA is not being candid with his or her client.

It is a major benefit for an individual to enter into a DPA as a way to get their case dismissed.  As I mentioned, the person does not have to plead guilty to get the benefit of a DPA.  There can be a lot of bad consequences for pleading guilty to a charge even if that charge is later dismissed.  With a DPA, there is no guilty plea, which is an important difference between a deferred sentencing agreement (to be discussed in Part II of this post).  Finally, the government requires that an individual test negative for drugs and have a very limited criminal record to get a DPA.  Also, certain offenses are not DPA eligible.  If the person’s first drug test is negative, then that satisfies the drug test requirement.  If the first drug test is positive, the person must drug test until he or she gets two consecutive negative drug tests.

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