Articles Tagged with Traffic Arrests

Breathalyzer

Breathalyzer

In August of 2012, the District of Columbia City Council, with little public comment, amended DC’s DUI/DWI law. Among the many changes included doubling mandatory minimum jail sentences for repeat offenders and cases with high chemical scores. Another change included doubling the maximum penalty for first offenders from 90 days to 180 days. The law also added additional situations in which mandatory minimum jail applied and lowered the blood alcohol score from .08 to.04 for individuals who possess a commercial driver’s license. Buried in the law included provisions that made DC’s hit and run law much broader. Many of the changes brought DC’s DUI law closer to the trend among most states who have created harsher penalties.

However, many of the changes were either arbitrary or say more about local institutional politics than public policy. One major arbitrary and ridiculous change to the law is a provision that bars individuals facing mandatory minimum jail time from serving that time on the weekends. Under the old law, judges routinely when forced to sentence individuals to mandatory jail time allowed them to serve that time on the weekends.

There are a variety of reasons an individual may wish to serve a ten day mandatory minimum sentence over the course of a few weekends.

First and foremost, an individual could lose their job when forced to take a full week or longer off from work. Furthermore, this provision discriminates socio-economically. DUI in particular is a crime that transcends socio-economic barriers. Doctors, lawyers, politicians, and engineers are just as likely to get a DUI as waiters, carpenters, and janitors. Those with salaried positions who get a DC DUI or DWI that triggers mandatory minimum jail time can usually take that time off work as vacation days and still get paid. Wage laborers who get paid hourly don’t have that luxury. They not only don’t get paid; they often lose their jobs when they tell their employer they have to miss the next ten days at work.

What possible public policy goal does barring individuals from serving their statutorily mandated jail time on the weekend? While I certainly recognize my inherent bias to favor the individual over the institution as a DC DUI lawyer, I challenge anyone to make out a public policy rationale for such an arbitrary provision in the law. Certainly, society benefits from having folks who are employed, paying their bills, and paying taxes.

I have often seen how a criminal conviction can wreak havoc on an individual. The conviction can lead to job loss, which in turn can cause some folks to turn to drugs or alcohol to cope with the stress and frustration. Compound that with the loss of driver’s license and other collateral consequences of a DUI conviction. Meanwhile, the person can’t find gainful employment because every time a potential employer does a background check, they find a criminal conviction.

Who is more likely to reoffend? The gainfully employed person who managed to retain employment by serving time on weekends or the unemployed frustrated individual barely getting by? This provision in particular serves no valid public policy and is a shameful example of prosecutorial overreach in the District of Columbia.

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beer-delivery-system-1-1246534-mI usually advise my clients to enroll in a private alcohol program after getting arrested for a DC DUI or DWI. For most people who get arrested for DUI, the police will release them at the station after several hours with a Citation to Return to Court. The citation gives them a date is for the Court to arraign the person on the charge of DUI and any other additional charges based on the police officer’s allegations.

At the arraignment, the prosecutor from the Office of the Attorney General will ask for several release conditions. The standard release conditions include (1) do not drive without a valid permit; (2) do not drive after the consumption of drugs or alcohol; and (3) report to the Pretrial Services Agency for a full screening and assessment. In almost all DC DUI cases, traffic judges in Superior Court will agree with government’s request and impose those conditions.

Now, the first two are no brainers and easy to comply with. Do not drive without a valid permit is just what it means. If you have a valid license, drive all you want. If you don’t, then don’t drive. If you get caught driving with a suspended license while under that release condition, you can not only get arrested for operating after suspension but also be charged with contempt of court. This condition is particularly important where the person’s license gets suspended as a result of the DC DUI arrest. The second condition is also an easy one. If the person has even one sip of alcohol or ingests any type of drugs, do not drive.

The third condition is where most folks have issues. The Pretrial Services Agency is an agency that supervises individuals with a Superior Court case. It is basically where the Court puts someone on probation while their case is pending. I will save a discussion on what Pretrial does to the presumption of innocence for a future posting. The point is reporting to Pretrial can be degrading, disruptive to one’s life, and very uncomfortable.

Each individual is assigned a case manager who is often overworked with hundreds of other individuals under their supervision. Reporting requirements make individuals charged with a DC DUI come down to the courthouse once per week to wait in line during business hours to report. Reporting can be particularly cumbersome for people who live or work in Maryland or Virginia. Office visits for the initial assessment can take hours. If the individual is ordered to drug test, they must come down to the courthouse once per week, wait in a long line, then urinate in a cup while a Pretrial employee watches their genitals against a mirror. This is done to ensure people don’t sneak in another person’s urine to avoid detection of drugs. However, in my view, it is a humiliating and dehumanizing process that is unfortunately ordered routinely in Superior Court.

So, how can one avoid reporting to Pretrial? Prior to the arraignment, enroll in a private alcohol program. Most judges will refrain from imposing the Pretrial requirement as a court ordered condition when their DC DUI attorney informs the Court the person has already enrolled in a private alcohol program. Accordingly, like I said, I advise most all clients to do that. Sometimes getting arrested for DUI is a red flag that an individual has an alcohol issue that needs treatment. Others may get arrested for a DC DUI or DWI and its truly an isolate incident. In either case, enrolling in a private alcohol program can help the person avoid Pretrial.

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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?

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.

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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