District Of Columbia’s New DUI Law

When the DC Council passed the Comprehensive Impaired Driving and Alcohol Testing Program Emergency Amendment Act of 2012 on August 1, 2012, much of the publicity focused on the increases of mandatory minimum jail time for drivers with high chemical scores and/or prior convictions.  With a high chemical score or a prior offense, a driver now faces a mandatory minimum of 10 days in jail if convicted…and that time increases depending on how high the score is or the number of previous DUI convictions by the driver.

Clearly these higher penalties should cause any DC driver to think twice about getting behind the wheel if the driver has previously consumed alcohol or drugs.  But what remains largely unknown to the public are the “hidden” dangers of this statute…several changes pushed by the Office of the Attorney General that provide even greater threats to a driver’s freedom.  Over the course of the next several weeks, the Brucklaw DUI Blog will discuss these hidden dangers in the statute and how a driver can prepare to deal with them if faced with a DUI charge.

March 25, 2013:  Part 1:  Presumed Guilty

In Title 1, Section (g)(b), the new law states that if a driver refuses to submit to chemical testing, and the driver has a prior conviction for a prior DUI offense, there shall be a rebuttable presumption that the driver is under the influence of alcohol or a drug or any combination of the two.

So what does this mean exactly?  Let’s say a driver has a prior DUI conviction.  The driver is then arrested for DUI in DC.  The driver (wisely) refuses to submit to chemical testing, which means no breath, blood or urine sample is provided.  The new law states that if the driver takes the case to trial, the driver is presumed guilty.  Think of how ridiculous that sounds.  One of the most oft-quoted principles of our system of jurisprudence is that individuals charged with crimes are presumed innocent until proven guilty.  This new law has decided to abandon that concept.

The phrase “rebuttable presumption” means that the driver enters the trial already presumed to be under the influence by the Court (or jury).  It is up to the DRIVER to rebut that presumption by presenting evidence.  And this tramples on yet another well-known principle of our judicial system:  a defendant has the right to present a defense, to present NO defense, to testify in the driver’s defense or to NOT testify at all.  If the defendant chooses not to present evidence or testify, that decision cannot be used against the defendant.  Unfortunately, this new law basically forces a defendant to put on a case to defeat the presumption of guilt.  It’s just plain wrong.

Brucklaw has always advocated that drivers arrested for DUI in the District of Columbia should always refuse chemical testing for two main reasons.  First, the driver keeps evidence out of the hands of the government (a DUI case is always stronger with chemical test results).  And second, a driver avoids the possible mandatory jail time if the chemical sample is high (a .20 or higher for breath or blood and a .25 or higher for urine).

Despite the new law, a driver should still refuse chemical testing…even if the driver has a prior conviction.  There are many challenges that can and will be made to this new law.  The first challenge is that a criminal statute cannot presume guilt.  It violates a defendant’s Due Process rights by presuming the defendant’s guilt prior to trial.  And it violates a defendant’s Due Process rights by shifting the burden of proof to the defendant, which is unconstitutional.

The second challenge is the fact that drivers are not advised prior to chemical testing that a refusal to submit to chemical testing will result in this “presumption of guilt” if the driver has a prior conviction.  Drivers are therefore making decisions about whether to refuse or submit without having all the information at their disposal.

The District Of Columbia’s new DUI  Law is very tough on drivers.  However, the “presumed guilty” aspect should not stop drivers from refusing to submit to chemical testing.  There are many challenges to be made to this statute and a driver should not give the prosecution more evidence in the form of a chemical test score under any circumstances.  Drivers who face such a decision can always contact Michael Bruckheim at 240-753-8222 or through the Brucklaw website at www.brucklaw.com.