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 5thoffender 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 Bruckheim & Patel.