May 7, 2013 – (This is part 3 of The Deep Dark Secrets of the District of Columbia’s New DUI Law)
One of the more subtle yet damaging changes that came with The Act is the statutory prohibition against serving mandatory jail time on weekends. Previously, if a driver was convicted under The Act and had to serve mandatory jail time, the Court could and often would allow the driver to serve the time over consecutive weekends. This provided a huge benefit to the driver. First and foremost, it typically would allow the driver to maintain his or her job during the work week. And second, the DC Jail incarcerates “weekenders” in a facility apart from the general population of the DC Jail. While the driver is still incarcerated, boredom has been the worst complaint from weekend sentences.
The Act’s elimination of weekends was surprising and unfortunate. Surprising in that it would seek to eliminate weekend options for the increased mandatory minimum jail sentences, and unfortunate because it failed to take into account that drivers serving these sentences faced severe financial or occupational consequences from their jobs as well as the security concerns that come from incarceration in the general jail population.
OAG and the DC Council’s reasoning behind this change remain unclear to this day. All the change has done is increase the likelihood that drivers facing mandatory minimum jail sentences will opt for trials instead of pleas due to the nature of the statute. The fact that OAG almost never offers a plea that would waive mandatory minimums also has increased the number of trials.
The Act’s stance on banning weekends comes from its definition of mandatory jail time. The Act defines such mandatory time as “a term of incarceration which shall be imposed and cannot be suspended by the court. The person shall not be released or granted probation, or granted suspension of sentence prior to serving the mandatory-minimum sentence.” Essentially, a driver must serve the jail time before any type of probation or release. As if to further drive the stake into weekend possibilities, The Act states that each mandatory minimum period of incarceration must be served consecutively. Thus, if a driver has a prior offense which calls for a minimum of 10 days plus a breath score of .20 or higher, the consecutive mandatory minimum days jump to 25 days.
The lack of weekend sentences clearly has the potential to wreck severe havoc with a driver’s life. But what can be done about it? Based upon the wording of the statute, the best thing a driver can do is prepare to serve the time in advance of the trial date. Another option is to continue the sentencing date following a conviction to allow the driver more time to get his or her affairs in order. Most judges are accommodating due to this circumstance.
In fact, some judges might be willing to be even more accommodating. The statute speaks nothing to the continuance of the actual sentencing. It is only upon the imposition of the sentence that a driver must serve the mandatory time. What if an accommodating judge is willing to sign an order allowing the driver to report to jail for consecutive weekends prior to sentencing? Judges may incarcerate convicted offenders prior to sentencing. This is typically referred to as “step back.” (as in, the court marshal will step the offender back into custody upon order of the Court). What if the judge orders step back prior to sentencing but allows the step back to be served on consecutive weekends? Once the sentencing date arrives, the judge can then sentence the driver to time served and place the driver on probation.
This solution might be the best way to avoid the somewhat draconian requirements of consecutive mandatory jail time in DUI matters. No other misdemeanor in DC has such punitive requirements for sentencing. Perhaps there are some judges out there who might agree. It is certainly an argument worth making if a driver is facing a mandatory jail disposition.