April 18, 2013 – (This is part 2 of The Deep Dark Secrets of the District of Columbia’s New DUI Law)
For some years prior to the passage of The Act, the District of Columbia has imposed mandatory jail time for defendants who have prior DUI convictions. Depending on the number of prior convictions, and on whether a chemical score was over a certain amount, a defendant could face mandatory jail time ranging from several days to several months. When The Act was passed, it increased the mandatory minimum jail time for defendants have who a prior DUI offense (2nd offenders) to 10 days. Defendants who have two prior offenses (a 3rd offender) must serve a minimum of 15 days upon conviction. And Defendants who have three prior offenses must serve 15 days plus 30 days for each subsequent offense (a 4th offender would serve 45 days- 15 days plus the extra 30. A 5th offender would serve 15 + 30 + 30 =75 days).
When we look at how a “prior offense” is defined under The Act, we find yet another hidden danger. The Act defines a prior offense as “any guilty plea or verdict, including a finding of guilty in the case of a juvenile, for an offense under District law or a disposition in another jurisdiction for a substantially similar offense which occurred prior to the current offense regardless of when the arrest occurred.”
The key wording in this definition is a “disposition in another jurisdiction for a substantially similar offense.” The Act specifically changed the meaning of a prior offense in order to target defendants who received probation before judgment dispositions in Maryland. Probation before judgment…or PBJ as it is known…derives from a Maryland law which allows a court to stay the entering of judgment, defer further proceedings, and place a defendant on probation subject to reasonable conditions. See Md. Crim. Proc. Code Ann. § 6-220(b)(1) (2012).
The benefit of the PBJ occurs when the court discharges the defendant from probation upon fulfillment of the conditions of probation. This discharge from probation is final, and under the law, discharge of a defendant from probation shall be without judgment of conviction and is not a conviction for the purpose of any disqualification or disability imposed by law because of conviction of a crime.
A PBJ allows a defendant to enter a guilty plea, but then have the guilty finding struck by the Court. The defendant is placed on probation. If probation is successful, the case never becomes a conviction. More importantly, a PBJ cannot be used as a conviction to impose a disqualification or disability for anyone who might otherwise be disqualified because of a conviction. Simply put, a PBJ is not a conviction and is not to be considered as a conviction.
Yet under The Act, a PBJ has been used as the basis to seek mandatory minimum jail time for prior offenders because of how The Act defines a “prior offense.” The government argues that because The Act defines a prior offense as a substantially similar disposition, then that is enough to invoke the mandatory incarceration for offenders with a prior PBJ.
Clearly this is problematic for DC DUI offenders who have a prior PBJ disposition for a DUI in Maryland. Challenges have already been made to the definition in the statute, and one such argument states that the District cannot pass a law that defines a prior offense differently than the home state which has already defined it. If Maryland has already defined a PBJ as a disposition that: 1) is not a conviction, 2) does not carry a finding a guilt, and 3) cannot be used as to disqualify or disable anyone who otherwise would be due to a conviction, then DC cannot define it differently for the purposes of imposing mandatory jail time.
The results of these challenges remain to be seen. For now, it is important to remember that if you have a prior PBJ for a DUI, do not think you are safe from mandatory jail time if you are arrested for a subsequent DUI in DC. If you have been arrested for a DUI offense, you can always contact Michael Bruckheim at 240-753-8222 or through the Brucklaw website at www.brucklaw.com.
Part 3: No More Weekends
By: Michael Bruckheim
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.
If you have been arrested for a DUI offense, you can always contact Michael Bruckheim at 240-753-8222 or through the Brucklaw website at www.brucklaw.com.