Articles Tagged with Traffic Arrests

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.

The case was set for oral arguments in April of this year and ultimately the District of Columbia Court of Appeals agreed with me. The Court of Appeals reversed the trial judge and remanded it for a hearing on whether my client was entitled to have a hearing on the motion. Any hearing on that motion would reopen up the flood gates on the District government’s scandalous Breathalyzer program. I planned to subpoena Kelvin King, the officer in charge of the program for all these years, Ilmar Paegle, the whistleblower who discovered the problems, as well as potentially prosecutors and supervisors from the OAG. Questions of what the government knew and when they found it out have to this day never been answered. Did prosecutors at the OAG’s office knowingly allow defendants to plead guilty to DWI in cases based on faulty Breathalyzer scores?



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.

This post is the second part in the two part series discussing consequences of a DC DUI conviction.  The first part discussed direct consequences, which involved things like probation and jail time.  This discussion is not meant to be a complete list of all collateral beer-vector-1438087-mconsequences for a DC DUI or DWI conviction–just some of the most common.

The first major collateral consequence is the loss of one’s driver’s license or driving privilege.  In the District of Columbia, just an arrest for a DUI can trigger a license suspension or the suspension of one’s driving privileges in the city.  When DC police arrest someone for DUI, they are supposed to issue what’s called a Notice of Proposed Suspension.  The form should be read carefully because it provides instructions on how to prevent an immediate license suspension for the arrest.  The notice instructs the arrestee to apply for a hearing in person at the DC Department of Motor Vehicles within ten days of arrest (or fifteen days for an out of state resident).

If the arrestee does not apply for this hearing, the license or driving privileges (for an out of state resident) will be suspended or revoked.  I recommend immediately contacting an experienced DC DUI lawyer if arrested for DUI.  Many people do not read the notices or are not sure what they are supposed to do to prevent license suspension.  Applying for the hearing will basically freeze the suspension from taking effect.  It will then be up to a hearing examiner at the DMV at some future hearing date to decide whether the suspend the license or driving privileges.

Independent of the possible suspension for a DUI or DWI arrest, if convicted for DUI, the DC DMV will revoke someone’s license or driving privileges for six months or one year.  That is a major collateral consequence of a conviction.  Unlike some states, the DC DMV does not have a mechanism to apply for or obtain a limited license or worker’s license.  That means if convicted for DUI, that person cannot lawfully drive in the District of Columbia at all.

Another major collateral consequence of a DC DUI or DWI conviction is having a conviction for a misdemeanor come up in one’s background check.  That means if applying for a job with the government or a private employer who does background checks, the conviction will appear.  Having the conviction could prevent an employer from hiring the applicant or could prevent the government from extending a security clearance.

A third major collateral consequence is skyrocketing car insurance.  Many insurance companies will drop drivers who are convicted for a DUI offense.  In addition, if convicted for DUI, the only car insurance available may be what’s called “SR-22 Insurance.”  SR-22 is a special type of insurance that carries high premiums and is required by many states, including the District of Columbia, after getting convicted for DUI or DWI.

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green-alcohol-cocktail-1422791-mThis blog is the third and final part in a three part series discussing the standardized field sobriety tests (or “SFST’s”) that officers administer during DC DUI traffic investigations.  The first part dealt with the Horizontal Gaze Nystagmus (or “HGN”), which is the follow the pen test.  The second part discussed the Walk and Turn Test, which is the walk the line test.  This part discusses the One Leg Stand Test.

During the One Leg Stand Test, the police officer will instruct the person suspected of driving under the influence to hold one leg six inches above the ground and count aloud.  The officer will instruct the person to count in the thousands (i.e. “one thousand one, one thousand two, etc.”).  The counting will go for thirty seconds but the officer will not inform the person how long to count in advance.  Like with the HGN and Walk and Turn, the officer looks for specific cues of impairment.  For the One Leg Stand Test, the four cues are:

  • If you sway while balancing;
  • If you use your arms to balance;
  • If you hop to maintain balance;
  • If you put your foot down.

In my opinion this test is particularly problematic for individuals–intoxicated or not.  Try standing on one leg for a full 30 seconds with your foot exactly six inches from the ground without at least using your arms to balance.  This task can prove difficult for a completely sober person.  Now imagine doing the test late at night on the side of the road with at least two police officers surrounding you, police lights flashing, cars speeding by, and with the knowledge that failure to successfully complete this test could land you in jail.  In addition, the shoes you wear, how much you weigh, and whether you have any physical health problems can all impact your ability to do the test.

Like with the other SFST’s, the officers investigating DC DUI’s are not trained to interpret an individual’s nervous or anxious behavior as an impediment to successfully completing the test.  In addition, like with the other SFST’s, the officers do not tell the person what cues of impairment they are looking for.  And, again, like the Walk and Turn Test, this test requires that a person exhibit unusual physical movements to somehow prove their sobriety.  For example, if you saw someone standing on the street standing with one foot raised six inches, you would probably wonder what they were doing.

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need-for-speed-1397111-mAs previously mentioned, the District of Columbia Office of the Attorney General (“OAG”) prosecutes alcohol related traffic offenses.  These offenses include Driving under the Influence (“DUI”), Driving while Intoxicated (“DWI”), and Operating while Impaired (“OWI”).  These crimes are essentially the most serious crimes the OAG has jurisdiction over.  If you are arrested for DUI, the government will likely charge you with DUI and OWI.  OWI is sort of like a lesser offense to DUI.  You cannot be convicted and sentenced for both DUI and OWI.

The OAG operates with near uniform policies related to DUI plea negotiations.  In fact, a good DC DWI lawyer can usually predict what plea offer the OAG will extend before the prosecutor actually extends the offer.  For a typical first offender DUI, the OAG will offer plea to the DUI, dismiss the OWI, and the government will recommend a suspended sentence, one year probation, and a series of alcohol related classes and fines.  An overwhelming number of DC DUI cases receive this exact plea offer.  For this type of offer, there is almost no incentive to accept the plea offer.

First of all, the person cannot be convicted of both DUI and OWI, so the government dismissing the OWI is a meaningless gesture.  In addition, at least at the date of this blog entry, most DC Superior Court judges will mete out that exact sentence for a first offender.  That is by no means a guarantee but merely an observation.  Therefore, the government asks the individual to give up all of their constitutional rights in exchange for next to nothing in return.

When someone is arrested for DUI, the first court hearing is an arraignment.  An arraignment is just a formal reading of the charges.  The next court date is a status hearing.  It is at the status hearing where the government will extend a plea offer.  At the status hearing, the person must decide whether to accept the plea offer or set a trial date.  At Scrofano Law, we set almost every DC DUI case for trial at the status hearing.  In most (but not all) cases, even if you lose at trial, the result will usually be a sentence along the lines of what the government extended as a plea offer at the status hearing.  Therefore, little incentive exists to waive all constitutional rights and plead guilty to a DUI.  The government does not offer anything meaningful in return and there is little trial risk for most cases.

There are numerous other factors that can come into play for DUI prosecutions.  With DC’s new DUI law, a number of things can trigger mandatory minimum jail sentences.  Among other things, repeat offenders, high chemical scores, and whether someone was under the influence of drugs while driving can trigger mandatory minimum jail.  In addition, the government may charge the person with additional crimes like Reckless Driving or Speed over 30.  In those cases, the government may offer to drop the additional charges, so it could make sense to accept a plea.  Or the government may offer a Deferred Sentencing Agreement in some rare cases.  These issues will be discussed in future posts.  Accordingly, its not a blanket rule to set every case for trial and legal advice should be tailored to each individual case.  However, generally the OAG does not extend plea offers that incentivize someone to plead guilty at the status hearing.

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