Question and Answer with Attorney Michael Bruckheim
Mr. Bruckheim’s extensive experience brings a unique perspective from the prosecutor’s point of view. He understands what will persuade the prosecution and court to a favorable decision. He knows how to challenge the field sobriety tests administered by the officer. And most importantly, Mr. Bruckheim understands the inherent weaknesses of the prosecution’s case and knows where and how to attack the case in order to achieve the best result for his client.
If you have been charged with DWI/DUI, it is essential that you have experienced and aggressive legal representation. Mr. Bruckheim has the knowledge and the experience, and he stands ready to fight for you.
When pulled over for suspicion of DUI in the District, what happens immediately after the field sobriety test? Is the person usually arrested right at that time?
Usually, the person is arrested at that time if the officer believes that he visually observed a number of clues on the different field sobriety tests. If that’s the case, the person will be placed under arrest. They’ll be transported to the nearest police district station. When they get to that station, they will be processed. They have to remove their belts, their shoes, fill out some forms. An Officer Must Advise You of Your Rights. They would then be advised. What should happen is they should meet with the officer and the officer should advise them of their rights under the D.C. Implied Consent Act. You are to inform the driver of the consequences of refusing to submit to chemical testing. Then, the driver decides, “Do I want to submit to a test?” Usually, it’s a breath test. They indicate whether or not they want to submit to a test. If they submit to the test, then, we’ll go ahead and they’ll do a breath test. If they refuse, then we’ll bring them into a holding cell. We’ll make a determination whether the person will be released on citation, which means, they’re released. They’re told to come back to court, usually, it’s three weeks later, or whether they’ll be locked up. In which case, they’ll be held until they see the judge on the next available court date.
A preliminary breath test is a test that the officer can provide. Basically, another word for it or another term for it is “roadside breath test.” That’s usually a test that they will give at the scene, right by the side of the road, where they have kind of like a portable small device, where the driver blows into the device. Officers use that basically to determine probable cause to arrest. If somebody blows into that and it’s a pretty high score, then, they already feel like they have probable cause to arrest the person.
However, whatever that score is, whatever that blow is, cannot be used as evidence at trial. For example, if somebody blows into a preliminary breath test by the side of the road and that scores a .15, and then, they go back to the station and they blow a .10. The .10 is the score that carries the case. That’s the score that the government would try to prove.
You say that it cannot be used in court. That means you also are not able to use the score from the preliminary breath test.
Your test results can be a great defense. You can certainly bring it into challenge certain things. For example, if you blow a .03 in the preliminary breath test, and then you blow over .08 when you get to the station, that may be something you can use. Under the Statute in D.C., however, the breath score that is used is determined at the time of testing. There are some jurisdictions that allow you to make some arguments to basically argue to the court that when you calculate whatever alcohol is in your system may have gone through your system, and what those levels may be. You can kind of use that to cast doubt on whatever the breath score was.
In the District of Columbia, they did away with that and said, “Look. Whatever your score is when you blow into the machine, that’s the score.” It’s something that can be used. How seriously a court looks at it, will really just depend on how the argument is made.
When pulled over for suspicion of drinking and driving, does the officer have the right to search your vehicle? If not, when do they have the right?
They don’t have the right to search your vehicle as a matter of course. Basically, they would need to have some type of a reason to search the vehicle. A lot of times, people give consent to search their vehicles, which is always a mistake.
The other question is what evidence are they looking for? Evidence of a DUI is typically on the person. If there is any type of container of alcohol or open container, usually, it’s just in plain view, the officer can see it in the car. If they have somebody under arrest for DUI and they have them outside the vehicle and they say, “Let me search your vehicle,” you should correctly say, “No.” Officers cannot search your car without reason. They need to come up with a reason or a basis to search the vehicle, and I think it would be difficult for them to do. It wouldn’t necessarily stop them, but if they were to find something in the vehicle that they would want to use against you or something that would create an additional charge, that’s something that you would certainly be challenging in court.
When I have a client who comes to me initially, I basically work on two things. I work on finding the weaknesses in the case so we can prepare a trial strategy to try to win. We also work on things the client can do to put him or her in the best possible position before the court if we are not successful.
Generally, the first offenders who don’t have high breath scores or the presence of drugs…I guess what you could call a straightforward DUI that doesn’t carry any type of mandatory jail sentences, most of time…unless there’s some real serious aggravating circumstances, those people don’t go to jail. They may be found guilty, but they usually don’t go to jail. For first time offenders. They will be placed on a period of probation, and sometimes, that probation is supervised by the court supervision services. What I usually do is I try to have clients do a number of programs in advance of their trial date so that if they are found guilty, we can make an argument to the court for unsupervised probation where they don’t have to check in with any agency or person. Their only real obligation is, obviously, avoid any type of rearrest, and pay the fine in time.
Trials are before judges but you can choose a jury in some cases. All first offender DUI cases are bench trials. You do not have a right to a jury trial as a first offender. If you are charged as a second offender or higher than that, then you do have a right to demand a jury because you face a stiffer punishment.
The standard for DUI is essentially whether one’s ability to operate a motor vehicle is impaired to a degree that can be perceived or noticed which doesn’t sound like a particularly high standard. The government can get convictions simply based on an officer’s observations of driving, their observations of the driver, and/or the driver’s performance on field sobriety tests. A lot of times, that can lead to a conviction. That can be enough. The standard of proof beyond a reasonable doubt is a very high standard. It’s the highest evidentiary standard in the American system of law. If you’re thinking of it in percentages, I would say it’s probably about 95 percent. If you compare it to another standard of proof which is the preponderance of evidence, the preponderance of evidence is basically above 50 percent. That’s the standard of proof that’s used for civil trials and not criminal trials. A low burden of proof can be an advantage
The government does have a high burden to meet. If you are able to craft a defense that really attacks a lot of the officer’s observations and brings out a lot of good things the driver did during the encounter with the officer, then that’s how you build your case. You set up enough doubt to get a not guilty verdict.
It is a breath test. They don’t have the capability to do blood tests. While they will do urine tests, they don’t like to for the obvious reasons of taking the test and then storing it to keep it preserved for testing. As far as breath tests, they have Intoximeter machines at all MPD stations. It’s much easier for them. That’s by far the preferred method.
In any situation, will they be taken to the hospital for any type of test or will it all be done at a police station?
There are situations where they would go to the hospital usually if there is an accident or if they perceive a health issue or something wrong with the driver. If they’re taken to a hospital, then…there’s no real protocol that the officers follow. Some officers will try to ask the nurse or the doctor to try to get a blood test.
What usually happens if they’re transported to the hospital is when the government becomes aware that there was blood testing at the hospital, they’ll file a motion to try to ask the court to allow them to subpoena the hospital records. They would try to prove the alcohol content in the blood from there. That additionally means that they have to bring in witnesses from the hospital, bring in people who did the testing. That is often difficult for the government to do.
What percentage of your cases for DUI in the district go to court and what percentage would you say are plea bargain deals?
All cases go to court. If you’re asking what percentage of DUI arrests are actually charged by the District of Columbia, I’d probably say about 98 percent. Usually, if you’re arrested for a DUI, it’s a near certainty that they’re going to charge you. Remember, they will charge you for blowing a .01 and you’ll still have to go to court and deal with that.
Plea bargains can take place at different times. For my clients, I rarely use a plea for a client early in the process, because usually, you don’t have enough information if they simply admit to the DUI, and a lot of times, you can plea guilty on the trial date and you’ll get the same type of result. As to what percentage of cases are plea bargains, I don’t have an assessment of that. Early pleas are not your best option. A lot of times, you can go to trial and lose and still get the same type of result. I think that’s a reflection on the plea standards that the government uses, which just really don’t make any logical sense for anybody to do an early plea. For that reason, I think a lot of cases get set for trial and a lot of cases actually go to trial.
As it relates to Field Sobriety Test, are there times, if somebody has poor balance, for example, and they’re asked to step out and perform a field sobriety test, if I make this known to the officer, is this something that he’s actually going to consider when he’s performing the test?
The officer may make a note of it. The officer may write in his or her report and say, “Yeah, the driver said that they’re not very good with balance,” but then, they’re just going to administer the test anyway and make note of the clues and still testify about it. The driver’s best bet is, instead of giving an excuse to say, “Well, I’ll do the test, but I just want to let you know my balance isn’t that great,” they are much better off not doing the test at all.
Why do a test when you know the officers are looking to arrest you and gather evidence. You know your balance is bad and you know you’re going to fail it and you’re not going to pass it? If you have to make that decision, you typically want to refuse field sobriety tests at the scene.
Chemical testing is different from field sobriety testing: know the difference. If you refuse field sobriety testing, field sobriety testing is different from chemical testing. The Implied Consent Act talks about chemical testing. If you refuse to submit to a chemical test, like a breath test or a urine test or a blood test, there can be possible implications on your driving privileges. That refusal also could be used against you at trial.
With field sobriety testing, there’s no requirement that you submit to field sobriety tests. You have absolutely no obligation whatsoever to submit. You can simply say no. The government may try to use that refusal against you.
It’s my position they can’t. That’s a question for the judge. I would certainly argue against that. People have a right to refuse to give an officer information, and that shouldn’t necessarily be used against them.
Field sobriety test results do not guarantee a conviction. In fact, if you refuse to submit to field sobriety tests, you probably greatly increase your chances of an acquittal, of not being convicted, because there’s no evidence they can use against you.
I think they’re completely unfair. I think they’re entirely biased. I think they’re ridiculous. I think they really give no means of determining whether one is under the influence. They describe them as tests. They claim that they have been tested and that there have been studies done on the validity of these tests. The test has no peer review system. What that means is, if you’re a scientist and you’re doing a test, you’re testing a theory. You want to see the effect of something on someone. You do an experiment, you do a test, you write it up, and what do you do? You send it to your peers in the field and they tell you what they think. They say, “Hey, this is good. This makes sense.” Or they say, “Hey, this is ridiculous. You forgot to do your XYZ, it shouldn’t be valid.” The National Highway Traffic Safety Administration, or NHTSA, which is the organization that created the field sobriety test, they never did that.
We have officers coming to court claiming to be experts in field sobriety testing. Two of the tests, the walk and turn test and the one leg stand test, are entirely biased in the test and the way they score. One mistake can make you fail a test. There are a number of clues that they could score you on. For example, in the walk and turn test, you’re supposed to take a total of 18 steps. If you step off line once, that’s counted as a clue. It doesn’t matter if you were perfect on 17 out of 18 steps, which is 95 percent. You still have a clue against you. The same thing would go if you missed heel to toe. Again, 17 out of 18 on heel to toe, pretty good percentage, but you still get a clue. If they observe two or more clues, they’re going to say you failed the test. That’s how easy it is for you to fail these tests.
Field sobriety tests carry such weight amongst the judicial establishment that if you’re charged with a DUI, you need to hire a lawyer who knows the tests well enough so they can educate the court and basically convince the court that it should not attach the value to these tests that the government wants.
If I’m arrested for driving under the influence in the District of Columbia, is it advisable to represent myself?
Absolutely not. If you are able to hire an attorney who specializes in DUI defense in D.C., that should be your first option. When you go to court, if you cannot afford an attorney, the court will appoint an attorney to represent you. It’s never advisable to try the case on your own, and the courts really try not to let that happen.
If you think of it in terms of your health, you have a certain type of medical condition, are you going to go to the general practitioner, or are you going to go to the specialist that knows exactly how to treat it? You’re going to go to the specialist. That’s your health on the line. If your freedom’s on the line, I think you’d want to go to a specialist too.
Are there any new tests or are there any new things that really have come up in the last several years that people could be aware of, should be aware of?
Not really in the form of tests, but case law has developed. There was a Supreme Court case called “Missouri versus McNeely,” which talked about whether police have to get a warrant to get a blood test on somebody who basically did not want to submit to a blood test. The court ruled that, yes, a warrant was necessary in that case. I think with that case, the way the litigation is going to start to go in the future is really being able to challenge breath tests and challenge whether they should even come in if police didn’t get a warrant.
If you think about it, there’s almost a DUI exception to the Fourth Amendment. The Fourth Amendment basically says that any valid search or seizure requires a warrant. If you don’t have a warrant, they need to have an exception to the warrant requirement. That really doesn’t exist for DUI cases. There’s no real valid exception for that warrant.
Typically, the government argues, and the judges agree, they say, “Well, there’s an implied consent statute, which says, by virtue of driving, it’s implied that you’ve already consented to submit to the chemical testing if you’re arrested on suspicion of DUI.” You have these statutes, where it’s basically almost requiring a driver to submit to a chemical test, which is then going to be used against them. You have to question whether you could have a statute that basically makes people give up their Fourth Amendment right not to give any evidence to the police. Those are some arguments that are being developed. I think you’ll see a lot more of that coming up in the District of Columbia.
Marijuana has been legalized in parts of the country, and it’s becoming more accepted. Two part question here. One, are you seeing more DUI arrests, or whatever it’s called, for driving under the influence of marijuana? The second part of that question is, if they do, how do they test for that?
Marijuana legalization has not altered DC DUIs. Typically, they test for it the same way they would test for any drug. If they detect an odor of marijuana, they’ll still ask a field sobriety test. Generally, they’ll ask for a urine sample instead of the breath test to see if there’s the presence of marijuana in the urine. Really, it’s one of the marijuana metabolites. It’s called THC, and they’ll look to see if there’s the presence of THC in the urine.
I’ve been drinking, I get arrested, and I’m charged in the district. How public will this be? Will my family, friends, will my employer find out about this?
It’s not a simple answer. It depends. If you are charged in the district, all court cases in the district are searchable.
A person can go to the D.C. court’s website and you can put in anyone’s name and see whether or not they have a case. This includes any active case in the system. It’s definitely searchable. People are able to find it. The question is, are they going to look.
Is it considered a form of entrapment for a police officer to sit outside of a bar and wait for patrons to exit?
No, it’s not. A lot of officers will do that. They’ll wait for patrons to exit. The officer has to have a reason to stop somebody. They can’t just see somebody walk out of a bar and stop them. If someone just walks normally down the street, they get into their car, they drive without any issues, and the officer can’t just say, “Well, I just saw them coming out of a bar, I’m just going to pull them over and see if they’re under the influence.” There has to be a reason to stop such as a traffic violation, the way the car is operating, or the way the person was before they got into the car.
Simply walking out of a bar and getting into a car, without showing anything wrong, would not be a valid basis for them to stop. However, it’s not really considered entrapment. Entrapment is a defense where you’re basically arguing that the police enticed you or put something in play to make you commit a crime, and then, charged you with the crime.
Entrapment would come into play a little more where, if you’re walking by a car and the officer says, “Hey, is this your car?” “Yeah.” “Well, I want you to move the car because it’s interfering with traffic, or I want you to get in the car and drive it and park it over there.” You go, you get in, you drive it, you park it, and then you get out, and then the officer says, “Hey, you’ve been drinking,” and they arrest you for a DUI. That’s when it possibly would come into play.
Let’s talk about punishments for convictions. What is the typical penalty for being convicted of driving under the influence in Washington D.C. for a first offense?
If you’re convicted of driving under the influence and you’re a first offender, there aren’t any mandatory minimum jail sentences involved.
Typically, you would receive a suspended sentence, which would be time hanging over your head. You would receive a period of probation. You may receive some requirements of some programs to do while you’re on probation. That’s why I usually try to have my clients complete those programs before we come to court. There would be no reason to put somebody on supervised probation.
There would be a mandatory hundred dollar fine. Sometimes, there’ll be a little bit more of a fine. That’s generally what happens, as a first offender unless there are aggravating circumstances.
It depends on the circumstances. If it’s a really egregious case, there is an accident or injuries. There are always circumstances which could lead to jail.
There’s no mandatory jail by statute. When there’s a mandatory minimum jail sentence, that means the judge is required to give you a minimum amount of jail time. If you’re a first offender, unless you submit to those high chemical scores we talked about, you’re not facing that.
For Additional information on DUI law in Maryland and the District of Columbia, click on the following for a summary of DWI/DUI laws:
If you have been charged with a DWI/DUI, it is urgent that you retain experienced, aggressive legal counsel immediately. Contact Bruckheim & Patel for a free, immediate consultation at 240-753-8222.