Articles Tagged with Traffic 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 couple was arrested in New Jersey this week for two separate instances of drunk driving, each within six hours of each other according to a report from USA Today’s Daily Record.  The boyfriend was the first to be arrested after a police officer responded to a call about a vehicle left on the side of the highway with its engine running, blinker on and keys in the ignition.  After a lack of cooperation on the boyfriend’s part and a declined Alcotest (New Jersey’s breathalyzer program), he was arrested and charged with driving while intoxicated, refusing a breath test, open container, consumption of an alcoholic beverage in a motor vehicle, reckless driving, failure to exhibit registration, and disorderly conduct.  He was then taken to jail to wait in a holding cell until someone could pick him up.

When his girlfriend arrived to do just that, officers noticed the smell of alcohol on her breath.  She admitted to drinking earlier in the day, and upon taking the field sobriety test and an Alcotest exam, was discovered to have a blood alcohol content (BAC) of .28%—well over the legal limit of .08%.  She was then charged with driving while intoxicated (DWI) and joined her boyfriend to wait for a family member to retrieve her from the police station.
The girlfriend’s arrest raises all sorts of questions about D.C.  DUI law—like when and how a police officer can charge you with a DWI or DUI.   Based on the article alone, the girlfriend wasn’t even driving the vehicle when she spoke with the officers.  How could she have been arrested?  After all, driving under the influence requires that the person was driving not just that they were under the influence.

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nigth-at-hyper-1455387On January 25, 2016, Trump signed two draconian executive orders targeting documented and undocumented immigrants in the United States. There has been much attention regarding the executive orders barring refugees and any citizens’ entry of seven predominately Muslim countries. However, the impact on the criminal justice system regarding immigrants currently in the United States has received far less attention.

The Supreme Court case Padilla v. Kentucky placed an affirmative obligation on criminal defense attorneys to advise immigrant clients about potential immigration consequences for entering into guilty pleas. That seminal case created significant overlap between criminal defense and immigration law. Trump’s recent Executive Orders and their likely impact on the criminal justice system further blur the line between criminal defense and immigration law.

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In the District of Columbia, the Office of the Attorney General (OAG) is responsible for prosecuting DUIs and it takes this job very seriously. While other jurisdictions routinely offer favorable deals for DUI offenders, DC rarely does. What that means is that often times you would be no better off pleading guilty than you would be if you took the case to trial and lost. Your best bet at beating a DUI conviction is going to trial and holding the government to its burden of proof.

To be convicted of a DUI, the government must prove that you were (1) operating a motor vehicle (2) while under the influence of alcohol or drugs. While two elements may not seem like much to prove for the government, there are numerous ways to challenge the evidence against you on both elements.

The first element of the DUI offense is the trickiest element to challenge because DC law has a broad definition of what it means to operate a motor vehicle. Operate is defined as actual physical control over the vehicle. Physical control means capable of putting the vehicle into movement or preventing movement. If you were pulled over and the police witnessed you driving, it is hard to say you were not operating the vehicle.

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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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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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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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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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