Drunk driving/DWI/DUI

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting relentlessly for the best possible results for his clients. http://katzjustice.com

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting tirelessly for the best possible results for his clients. http://katzjustice.com

Last year, I blogged about winning a drunk driving trial where the police officer found my client asleep at the wheel of a car in a parking lot with the ignition running and with my client's exhibiting significant hallmarks of being under the influence of alcohol. In Maryland, merely being asleep in a parked car with the ignition running does not automatically amount to the driving or attempted driving behavior that can expose a person to a drunk driving conviction, as “long as such individuals do not act to endanger themselves or others.” Atkinson v. Maryland, 331 Md. 199, 627 A.2d 1019 (1993). 

Atkinson  "set forth six factors which must always be taken into account when assessing the potential danger presented by the various circumstances of each case: 1) whether or not the vehicle's engine is running, or the ignition on; 2) where and in what position the person is found in the vehicle; 3) whether the person is awake or asleep; 4) where the vehicle's ignition key is located; 5) whether the vehicle's headlights are on; 6) whether the vehicle is located in the roadway or is legally parked...  No one factor will be dispositive of whether an individual was in 'actual physical control' of the vehicle." Atkinson.

Ironically, a day before I tried the above-discussed case, the Virginia Supreme Court went the opposite direction of Atkinson, ruling 6-1 that one is an operator of a motor vehicle for purposes of a drunk driving prosecution, merely by being asleep at the wheel of a parked car with the key simply turned to the position to have the radio playing. Nelson v. Virginia, 281 Va. 212, 707 S.E.2d 815 (2011). 

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting tirelessly for the best possible results for his clients. http://katzjustice.com

In The Forty Year Old Virgin, one of the hero's drunk prospects asks him to blow into a tube into her car, and away they recklessly go. He did not at the time realize that he was blowing into the ignition interlock machine to enable the car to drive after she had been convicted for drunk driving.

If only that were mere fiction. Yesterday, Virginia's House of Delegates passed a Senate-passed bill mandating the ignition interlock for all people convicted of drunk driving, whereas before those with first-time DWI convictions for a blood alcohol level under 0.15 did not face such a statutorily mandated requirement. All that is left is for the governor to sign the bill, which will soon be a fait accompli, and to see when the legislation will go into effect.

The vast majority of my first-time DWI clients with BAC test results under 0.15 ordinarily plead innocent to DWI, and many take a risk at trial even when prosecutors offer to strike BAC's allegations of 0.15 or higher in exchange for a guilty plea. The incentives to plead guilty to strike the BAC was to avoid the interlock requirement and to avoid jail. Now with the interlock mandatory for all DWI convictions, I foresee more trials, as well, for those originally charged with BAC's of 0.15 and over.

DWI trials sometimes can be won, as I have detailed recently here: http://katzjustice.com/underdog/permalink/VirginiaDRunkDrivingTrialDefending..html , http://katzjustice.com/underdog/permalink/VirginiaAttorneyDefendingDWI..html , and http://katzjustice.com/underdog/permalink/FairfaxNorthernVirginiaDWIDefending..html . With mandatory ignition interlocks for all Virginia DWI convictions, the stakes are all the higher for Virginia DWI defendants to fight such charges tooth and nail.

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients.

The D.C. Attorney General’s Office now posts several NHTSA student field sobriety testing training manuals online, from various years from 1995-2007, to expedite answering discovery requests. 

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com  

As I understand it, states created a per se guilty rule for blood alcohol content exceeding 0.08 in drunk driving cases, under threat of losing highway funding otherwise. I understand that the same impetus spurred states to raise their drinking ages in the early 1980's.

Now, there is pending proposed federal legislation (details are here and here) in the House Transportation Reauthorization Bill to pay legal bribes of $25 million annually to each state that requires driving with the ignition interlock system by any person convicted of drunk driving, even with a low blood alcohol content.  

Please contact your Congressional representative to urge that this ignition interlock provision be reomoved from the Transportation Reauthorization Bill. The current drunk driving laws set such a low thresshold for a drunk driving conviction (as low as a 0.08 blood alcohol content) that people who are barely culpable get snagged into guilty DWI convictions under the current state of law. Requiring the ignition interlock is expensive for defendants to have it installed and to be part of the Interlock program, and an interlock restriction requires only using vehicles equipped with the interlock device.

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting tirelessly for the best possible results for his clients. http://katzjustice.com

In law school, a criminal law professor one day joked about police claims that they don't have arrest quotas, and then at once hilariously and pathetically took the role of a police supervisor asking his subordinate: "Where are your minimum thirty traffic tickets for the month?"

Do police feel they have quotas to justify their jobs and salary? Just ask Howard County, Maryland, police, whose department received a federal grant that the police chief confirmed "'mandated that an average of 2-4 citations must be written per hour on each of these details by each officer or future funding may be withheld.'" (Thanks to a listserv member for posting on this story.) If that is not a quota, then what is?

But wait. The situation gets more pathetic. According to the Baltimore Sun, a "December 2010 stat sheet obtained by The Baltimore Sun includes a handwritten notation advising county officers of 'a prize' for boosting traffic stops 60 percent. This memo was not used in the court case" that led District Court Judge Hantman to dismiss a drunk driving charge in a courthouse up the road from me.

This story alone should be enough to end the practice of too many judges, jurors, and prosecutors (of course) who ascribe extra credibility to police officers merely because they wear a uniform. The uniform does not add credibility any more than my changing my name to John Coltrane makes me an astounding sax player. A vast majority of people lie and exaggerate. Police are people, so a vast number of them also lie and exaggerate. Sad but true.

Congratulations and thanks to criminal defense lawyer Mark Muffoletto, who had the information and insight to issue a records subpoena that obtained the above-described quota smoking gun that led to the dismissal of his case before Judge Hantman. This story is fodder for compelling compliance with more of such records subpoenas in other jurisdictions.

Image from National Institute of Standards & Technology.

Breath testing for determining blood alcohol content is not reliable. The District of Columbia Metropolitan Police Department is a shining example of that.

The District of Columbia Medical Examiner's Office has quality control responsibility for the testing of breath, blood and urine for blood alcohol content involving drunk driving arrests by the D.C. Metropolitan Police Department. However, the Medical Examiner's Office has lost its provisional accreditation through the National Association of Medical Examiners (NAME), because the District of Columbia did not heed NAME's requirement that the chief medical examiner be board-certified. Moreover, it appears that the Medical Examiner's Office was never accredited before 2008.

Accreditation and board certification may not be as big a deal when lives and liberty are not at stake, but they are with the Medical Examiner's Office.

This sad story of the Medical Examiner's Office's loss of accreditation and lack of a board-certified chief medical examiner is a big weakness for prosecutors -- and a weakness for criminal defense lawyers to exploit to the hilt -- in prosecutions relying on the Medical Examiner's Office.

ADDENDUM: Thanks to a colleague for providing the Examiner link on this story.

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com  

Image from National Institute of Standards & Technology.

Thanks to a colleague for circulating the following material about Washington, D.C.'s ongoing and chronic drunk driving prosecution debacle, which I again blogged about last week:

- Fraternal Order of Police letter to the city council.

- D.C. Attorney General's press release on the matter.

- Washington Post story on the topic.

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com  

Image from National Institute of Standards & Technology.

Washington, D.C., prosecutors' recent systematic dismissal of numerous drunk driving prosecutions  -- on top of D.C. prosecutors' continuing striking of breath testing scores obtained from Metropolitan Police breathalyzer machines, for a year now -- shouts loud-and-clear how broken is D.C.'s DWI prosecution system, and underlines how severely fallible is any DWI prosecution in any state that relies on the junk science of field sobriety testing and the highly-flawed approach of using breath testing rather than blood testing to quantify blood alcohol content in one's body.

Highly flawed is the notion to just pay for a lawyer to enter a guilty plea for a first-time drunk driving prosecution where front-end (versus suspended) jail time appears unlikely (and beyond jail risks, consider risks of suspended driving, severe consequences for repeat offenses, higher car insurance rates, and the noose of probation). The need to fight drunk driving prosecutions -- and all other prosecutions -- tooth and nail is highlighted by D.C.'s long-running DWI prosecution debacle.

Even if a person believes s/he committed a crime, that does not automatically mean the prosecution will be able to meet its sole burden to prove guilt beyond a reasonable doubt. Even if one is likely to lose a trial, it usually is better to plead not guilty than guilty where one is unlikely to face a worse verdict and sentencing outcome even if found guilty at trial. Moreover, my experience has shown me that numerous trial acquittals can come where and when they are least expected.

The nation's drunk driving laws are draconian, at the very least by criminalizing driving with a blood alcohol level of 0.08, which is a very low level that often does not even make one feel buzzed let alone anywhere near drunk, and thereby make a mockery of the criminal justice system. Each time a person pleads not guilty and wins against such a prosecution, or gets no worse a result than from taking the prosecutor's guilty plea offer, that might help wake up lawmakers that such intolerant drunk driving laws are straining judicial and governmental budgets too much in these tough economic times, seeing that trials are more expensive for courts and prosecutors, at least in terms of time needed for trials, than guilty pleas.

DISCLAIMER: Clearly, each DWI and criminal defense case is different, so it is essential to get the advice of a qualified lawyer licensed in the applicable jurisdiction (I am licensed only in Maryland, Virginia, and D.C.) to decide any criminal defense strategy.

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com  

Last year, I blogged about a 6-5 Virginia intermediate appellate court opinion affirming a drunk driving conviction where the DWI was allegedy committed on private property not used as a thoroughfare, and not committed in the presence of a police officer.

Today, Virginia's highest court reversed, saying:

A warrantless arrest for a misdemeanor is invalid unless the offense was committed in the presence of the arresting officer, or unless the arrest falls within one of the exceptions enunciated in Code § 19.2-81. Penn v. Commonwealth, 13 Va. App. 399, 404-05, 412 S.E.2d 189, 192 (1991), aff'd, 244 Va. 218, 420 S.E.2d 713 (1992).

The single-vehicle accident in the present case occurred on or beside a private road in a gated, guarded residential complex. The Commonwealth makes no contention that the road was “open to the use of the public for purposes of vehicular travel." Consequently, the exceptions to the warrant requirement contained in Code § 19.2-81 do not apply. Officer Weinstein, therefore, made an invalid warrantless arrest for a misdemeanor not committed in his presence. Because Roseborough was not validly under arrest for violation of Code § 18.2-266 when his breath was tested, the implied consent law did not apply and its provisions permitting the certificate of analysis to be admitted into evidence were not triggered.

The Court of Appeals held that the officer did not need to rely on the implied consent law because Roseborough took the breath test voluntarily at the police station. However relevant his willingness may have been to the administration of the test, we consider it irrelevant to the question of the certificate’s admissibility into evidence. That question of admissibility depended entirely upon the applicability of the implied consent law. For the reasons stated, the Commonwealth was unable to rely on that law in the circumstances of this case.

Conclusion: The circuit court erred in overruling Roseborough’s objection to admission of the certificate of analysis into evidence at trial and the Court of Appeals erred in affirming the conviction.

Roseborough v. Virginia, __ Va. _ (Jan. 13, 2011).

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com  

Drinking alcohol was a fun experience for me, with an altered state of conscience when I drank enough. Certainly, alcohol brings out the dark side of many people, and I believe that we would have a better society if everyone who got drunk instead smoked marijuana. However, my own experiences with beer, wine and alcohol were mainly good, except when waking up the next day with a queasy stomach when I drank enough to cause such an effect.

That is not to say that I did not get behind the wheel when feeling happy from alcohol. In fact, sometimes I tell clients that the only difference between them and me is that I did not get caught. Early on in law school, a bell went off telling me not to get behind the wheel at all after having more than just a sip of alcohol, lest I deal with any hassles of being investigated for drunk driving, let alone with having to defend myself in court against a drinking and driving charge. I ultimately cut out alcohol completely, with it not having fit in with my evolving approach to eating, drinking, maintaining a healthy weight, and looking for internal approaches to any conscience-altering rather than taking alcohol for that.

People will keep drinking alcohol and getting behind the wheel. Before the days of automobiles, riding a horse or bicycle under the influence was outlawed, and still is, at least in Maryland.

Riskier than driving under the influence of alcohol and drugs is to have passengers at the time of doing so. The worst kind of passenger to have at the time is a minor, particularly if that leads to a charge not only of driving under the influence but also of felony child endangerment in such a state as Virginia.

Sharon Wood learned that the hard way. The police found her behind the wheel with her two and five-year-old children, after a civilian report of her having driven after having allegedly acted suspiciously. Wood v. Virginia, _ Va. App. _ (Nov. 23, 2010), http://www.courts.state.va.us/opinions/opncavwp/2215092.pdf . Wood admitted to having taken alcohol and Ambien; of course, she should have refused to talk, but appaently did not read my words of warning in advance on that. http://katzjustice.com/TOP10.pdf.

Everything unravelled from there, including Wood's trying to elude arrest. She was convicted at a bench trial, and today the Virginia Court of Appeals affirmed.

Wood approves of the trial judge's approach to finding her guilty:

Here, the court properly appraised all the evidence and found that appellant was highly intoxicated on alcohol and Ambien, drove to the parking lot in a semi-conscious, impaired condition, and "did not have the ability to control her motor skills and use her mature judgment." The court concluded, "with all of these circumstances, it seems to me that it’s very clear that [appellant’s] conduct created a probability of injury or death to the children." Thus, while the court commented on appellant’s intent to drive out of the parking lot, the record clearly demonstrates that the court considered all the facts and circumstances surrounding appellant’s behavior and convicted appellant based upon the totality of the circumstances.

Wood.

Image from National Institute of Standards & Technology.

A silver lining in the District of Columbia’s breathalyzer debacle  is that it may further convince judges and jurors that breathalyzers amount to junk science, or else that their results are highly unreliable, due to unreliability of the machinery, and by the fallibility and sometimes carlessness of humans that maintain and operate them. 

I have worked for several years with two Intoxilyzer and Intoximeter experts who confirm that blood testing is more reliable than breath testing to accurately determine one’s blood alcohol level at the time of testing. Of course, the blood alcohol level at the time of driving could be lower or higher than at the time of testing, depending on whether the alcohol absorption process is continuing upward, or if the alcohol dissipation process has already begun.

Here are memos –- no doubt heavily reviewed and vetted in advance by D.C. government lawyers to reduce legal liability for what is said, and to minimize legal liability for not saying enough -- from D.C. Deputy Attorney General Robert J. Hildum  (June 4, 2010) and from Alexander Pope and Darryl Priestly of the D.C. police (April 1, 2010, and not an April Fool's joke). Thanks to a colleague for forwarding me these documents, which were also provided to me recently by a D.C. assistant attorney general.  

By Jon Katz, a criminal defense and DWI defense lawyer practicing in Fairfax County, Virginia, Montgomery County, Maryland and beyond. 301-495-7755. http://katzjustice.com.