Month: March 2017

A person is considered “convicted” of a Driving Under the Influence (DUI) charge if they are found guilty of a DUI at trial or if they plead guilty to a DUI.  Being convicted of DUI in the District of Columbia is a matter that must be taken very seriously.  The maximum penalty (or “sentence”) that an individual can receive for a DUI conviction at DC Superior Court is dependent on three things: (1) Any prior DUI (or Driving While Impaired/Operating While Impaired) convictions in any jurisdiction; (2) the breath score or urine score; and (3) whether drugs were detected in their urine.

DC DUI First Time Offenders

If this is the first time that an individual has been convicted of driving under the influence (or DWI/OWI) in any state or jurisdiction, the maximum punishment that the Judge can give them is 180 days in jail and/or a fine of $1,000. [D.C. Code § 50-2206.13(a)]

While the prosecutor may ask for a certain sentence, the Judge has full discretion as to what sentence the individual actually gets. However, the majority of first-time DC DUI offenders are not sentenced to jail time unless the facts fall under one of the mandatory minimum requirements below, or unless the arrest involved an accident or injury.

How Can Past Convictions Affect A DC DUI Sentence?

If an individual is convicted of a DUI for a second time, he or she faces a much harsher punishment. The maximum sentence that an individual can receive for a second DUI conviction is: one year in jail and/or a fine amount between $2,500 and $5,000.However, while the Judge can give up to one year in jail, the individual must serve at least ten (10) days in jail. [D.C. Code § 50-2206.13(b)]

Not surprisingly, the maximum sentence gets higher every time that the person gets convicted of a DUI. If an individual is convicted of DUI for a third time, the Judge can impose a sentence of up to one year and/or a fine amount between $2,500 and $10,000. For a third offender, the Judge must impose a jail sentence of at least fifteen (15) days in jail. [D.C. Code § 50-2206.13(c)]

If a person is convicted of a DUI four or more times, the Judge is required to add thirty (30) days to the jail sentence for each additional DUI conviction. [D.C. Code § 50-2206.13(d)]

Any DUI, DWI, or OWI conviction in any state or jurisdiction will be counted as a prior offense in D.C. Superior Court.

How Can A Breath or Urine Test Score Affect a DC DUI Sentence?

After a person is arrested for DUI or OWI in the District of Columbia, the police often give the individual an option to take a blood, urine, or breath test in order to determine the amount of alcohol in his or her system. If the person consents to taking one of these tests and is convicted on the DUI charge, the result of the tests may affect the sentence that is imposed.

If a test result is either: (1) Blood: 0.20 or above; (2) Breath: 0.20 or above; or (3) Urine: 0.25 or above, a Judge is required to impose at least ten (10) days in jail for first convictions, at least fifteen (15) daysin jail for a second conviction, and at leasttwenty (20) days for third or subsequent convictions . [D.C. Code § 50-2206.13(a)(1), (b)(1), (c)(1)]

If a test result is either: (1) Blood: 0.25 or above; (2) Breath: 0.25 or above; or (3) Urine: 0.32 or above, a Judge is required to impose a mandatory minimum of at least fifteen (15) days in jail for the first conviction, at leasttwenty (20) days in jail for the second conviction, andtwenty-five (25) days for third or subsequent convictions.[D.C. Code § 50-2206.13(a)(2), (b)(2), (c)(2)]

If a test result is either: (1) Blood: 0.30 or above; (2) Breath: 0.30 or above; or (3) Urine: 0.39 or above, a Judge is required to impose a mandatory minimum of at least twenty (20) days in jail for the first conviction, at least twenty-five (25) days in jail for the second conviction, and thirty (30) days for third or subsequent convictions. [D.C. Code § 50-2206.13(a)(3), (b)(3), (c)(3)]

How Can A Positive Drug Result Affect a DC DUI Sentence?

Along with determining alcohol concentrations, a blood or urine test can also detect the presence of drugs in the individual’s system. The D.C. Code also requires that the Judge impose mandatory jail time if the individual tests positive for any Schedule I controlled substance. Common Schedule I drugs include: cocaine, phencyclidine (PCP), methadone, methamphetamine (MDMA), and morphine, among many others that are listed in D.C. Code § 48-902.04.

For a DUI first offender, the mandatory minimum jail sentence if the individual tests positive for a Schedule I is fifteen (15) days in jail. For a DUI second offender, the mandatory minimum jail sentence is twenty (20) days in jail. For a DUI third offender, the mandatory minimum jail sentence is twenty-five (25) days in jail.

While some of these requirements are “mandatory,” a good attorney may be able to use facts and biographical information to negotiate better situations for those facing DUI charges. At Bruckheim& Patel, we are experts in litigating DC DUI cases and will use that expertise to ensure that those charged with DUI in DC will get the best result possible. If you or someone you know has been charged with Driving Under the Influence in the District of Columbia, call (202) 930-3464 for a consultation with one of our DUI attorneys today.

It’s late at night, you are coming back from dinner, and you get pulled over by an officer. The officer tells you that they stopped you because you ran a stop sign, and asks for your license and registration. Your nerves getting the better of you and you stammer your reply while you fumble with your wallet. The officer narrows his eyes and he orders you out of the car.

After you get out of your car, the officer tells you that he is going to administer a series of field sobriety tests to make sure that you are able to drive. Not knowing that you have any choice, you perform three tests pursuant to the officer’s instructions…and soon find yourself in handcuffs. You ask why, but the officer tells you that there is simply too much to explain.

So, let us explain it for you.

The DUI Field Sobriety Tests Are Voluntary

The first thing that you need to know is that participating in field sobriety tests is voluntary. While not participating in the tests will usually guarantee that you will be arrested, anyone who has been in this situation knows that participating in the tests certainly does not guarantee that you will be let go. So, while it may not feel like it, you do have the right to say no.

First DC DUI Test: Horizontal Gaze Nystagmus

If you do decide to take the tests, the first field sobriety test that you will perform is called the Horizontal Gaze Nystagmus (HGN) test. During this test, the driver is told to follow a stimulus (usually a pen, penlight, or an eraser on a pencil) with his eyes from side-to-side. The officer is looking for nystagmus or involuntary jerking of the eyes. While every person’s eyes involuntarily jerk at a certain degree, eyes begin jerking at an earlier degree as a person’s blood alcohol content increases.

As the driver’s eyes follow the officer’s stimulus, the officer looks for three different things (called “clues”).  First, the officer looks for whether the eyes move side to side smoothly, or whether the eyes jerk noticeably. Second, the officer looks for whether the eyes jerk distinctly when the driver’s eyes move as far to the side as possible and is kept at that position for four seconds. Third, the officer looks for whether the eyes start to jerk prior to a forty-five (45) degree angle as the eyes move to the side. Each eye is checked, beginning with the driver’s left eye. The officer moves the stimulus side-to-side twice before each eye to look for each of the clues of nystagmus. Each “clue” in each eye is one point, for a total of six possible clues.

Second DC DUI Test: Walk and Turn

The other two tests that are administered are focused on examining whether the driver can concentrate on more than one thing at a time. The idea is that drivers must be able to simultaneously drive and react to outside stimuli in order to safely operate a vehicle, and alcohol is said to reduce a person’s ability to divide attention.

The first divided attention test is the Walk and Turn (WAT) field sobriety test. The WAT is separated into two phases: (1) the instruction phase; and (2) the walking stage. During the instruction phase, the driver is required to stand with their feet in a heel-to-toe position with their hands at their side while the officer explains the instructions for the test. Once the officer is done with the instructions, the walking stage begins. The driver has to take nine heel-to-toe steps, turn in a very specific (and unnatural) manner, and return back heel-to-toe nine steps while counting the steps out loud.

During this WAT field sobriety test, the driver’s attention is divided between balancing tasks (heel-to-toe), attention tasks (counting out loud), and a short-term memory task (recalling the instructions). The officer is looking for eight possible clues during the WAT test: (1) balance during the instruction phase; (2) starts before instructed; (3) stops while walking; (4) steps off the line; (5) uses arms to balance; (6) does not touch heel to toe; (7) improper turn; and (8) incorrect number of steps.

Third DC DUI Test: One Leg Stand

The final test is called the One Leg Stand (OLS) test, aptly named because the test requires the driver to stand on one leg. Specially, the driver is required to raise one foot six inches off of the ground, looking at the raised foot, and slowly count to thirty out loud in the odd format of “one thousand one, one thousand two,” and so on. The test is supposed to examine balance and attention. The clues that the officer looks for during the OLS field sobriety test are: (1) sways when balancing; (2) uses arms to balance; (3) hopping; and (4) puts foot down.

Of course, when an officer is administering the DUI tests, the officer does not tell the driver what clues they are looking for or what clues the driver showed. In an already nerve-wracking situation, it is not surprising that many are unable to perform the tests for the very first time exactly as instructed – regardless of their intoxication level. This unfamiliarity is just one of many other reasons discussed here, as to why these field sobriety tests are unreliable.  Hopefully this article will help to ensure that at least the unfamiliarity factor of these tests is lessened for those who may find themselves in an unfortunate DUI situation in the future.

Being charged with Driving under the Influence (DUI) in the District of Columbia is serious business. Unlike some jurisdictions, a DUI in DC is a criminal offense punishable by a criminal conviction and possible jail time.  Therefore, a charge of Driving under the Influence in the District of Columbia must be taken very seriously and requires a zealous defense.

When someone is arrested for a DUI in DC, it is important for them to understand exactly what the government (prosecution) must prove in a DUI trial. In order for someone to be convicted of a DUI in DC, the government must prove that the individual was:(1) operating a vehicle in the District of Columbia while either: (a) intoxicated; or(b) under the influence of alcohol or any drug or any combination thereof. D.C. Code § 50-2206.11.Each of these elements will be discussed in turn.

DC DUI Element: Operating A Vehicle

A person can only be found guilty of a DUI in DC if the government can prove that he or she was actually “operating” a vehicle at the time he was observed. A person is “operating” a vehicle under D.C. law if he or she has actual physical control over a vehicle.

This element has been very loosely defined in the District. The courts have found that it includes, but is not limited to: driving the vehicle, moving the vehicle, pushing or parking a vehicle, sitting in the car with the keys easily accessible when the vehicle is turned off, and even attempting to change gears and turn the wheel when the key is not in the ignition. The government does not have to prove that the individual was awake, that the vehicle was actually moving, or that the engine was running.

Basically, if the individual is around the car and there is any evidence that he has control over the vehicle or is trying to have control over the vehicle, the government can prove that he is operating the car for the purpose of the DUI charge.

DC DUI Element: Intoxication Based on Chemical Testing

After the government proves that the individual was operating the vehicle, the government must prove beyond a reasonable doubt that he was either intoxicated or under the influence.

The government can prove that the driver was intoxicated by using any chemical tests taken at the time of the arrest. A driver is intoxicated under the law if the driver’s alcohol concentration level at the time of testing was: (1) 0.08 grams or more per 100 milliliters of blood; (2) 0.08 grams or more per 210 liters of breath; or (3) 0.10 grams or more per 100 milliliters of urine.

If the testing confirms that the driver’s blood alcohol concentration reached any of these levels, the government has proven that the driver was intoxicated and has sufficiently met its burden to convict a driver under the DC DUI statute. This is sufficient for a conviction even if there is evidence that the driver’s ability to operate a vehicle was not actually impaired by the consumption of alcohol.

DC DUI Element: Under the Influence

The second way that the government can meet its burden of proof for a DUI conviction is to prove that the driver was under the influence at the time he or she operated the vehicle. In the District of Columbia, an individual is considered “under the influence” for purpose of a DUI if alcohol or any drug has impaired his or her ability to operate a vehicle to a noticeable degree.

D.C. law states that there is a presumption that the individual was not under the influence of alcohol if the chemical testing results in the following: (1) 0.05 grams or less per 100 milliliters of blood; (2) 0.05 or less per 210 liters of breath; or (3) 0.06 or less per 100 milliliters of urine.

The government is not required to prove that the driver was impaired to a degree that he or she was intoxicated, drunk, or in a drug-induced stupor. The government also does not have to prove the type of alcohol or drug that was consumed, and the fact that the drugs were prescribed is not a defense to a DC DUI. The government also does not have to show that the actual driving was impaired – it is sufficient to show that the individual was impaired and that this impairment could affect their driving.

Charged with DUI in DC Superior Court?

As you can see, DC law gives the government significant advantages when prosecuting a DUI charge in DC Superior Court. Therefore, if you are charged with a DUI in DC, it is vital that you retain an attorney who is experienced with the intricacies and nuances of the DUI statute.

The attorneys at Bruckheim& Patel specialize in Driving Under the Influence cases. In fact, partner Michael Bruckheim authored one of the only books specifically regarding DC DUI litigation, which you can view here. The attorneys at Bruckheim& Patel will utilize their expertise to produce the best outcome in your case. Call (202) 930-3464 for a free consultation today.

You have been arrested with driving under the influence in the District of Columbia. The officer released you from the police station with a notice to appear in D.C. Superior Court. What happens now?

DC DMV License Revocation

First, there are time-sensitive DC DMV consequences that must be addressed. The DMV will automatically revoke your DC license or DC driving privileges unless you request a hearing within ten (10) days if you have a DC license or fifteen (15) days if you have an out-of-state license. If you request a hearing, your license will remain valid until the hearing and will only be revoked if you do not prevail at the hearing.

DUI Arraignment

Second, you must attend the first hearing at DC Superior Court. The first hearing is called an “arraignment,” and usually occurs three to four weeks after the initial arrest. At the arraignment, the government tells you the specific charges that they have brought against you and gives you the police report (or “initial discovery”).

Unless there is a warrant out of your arrest or a pending charge or conviction, there is very little likelihood that you will be taken into custody at arraignment. The Judge will impose conditions of your pre-trial release, however, which usually can include reporting to pre-trial services and taking a preliminary drug test.

DUI Plea Offers

In DC, it is very rare to receive a genuine plea offer from the government until after arraignment. A plea offer is generally extended after both sides have reviewed the discovery, the defense attorney has presented mitigating facts, and the prosecutor and defense attorney have discussed and negotiated an offer.

The plea offers for a DUI charge can vary greatly depending on the facts of the case. The best offer that an individual can get for a DUI case in DC is diversion. In a diversion agreement, the government imposes conditions upon the defendant that has to be completed by a certain date. The government agrees to dismiss the case if the individual completes the conditions.

However, the government has no obligation to extend a diversion plea offer. The diversion option is generally only available to a narrow subset of first-offender cases when the defense attorney presents sufficient mitigating facts to support this option. Generally, the general plea offer extended by the government is to plead guilty to one of the charges in exchange for the government agreeing not requesting significant jail time.

DUI Status Hearing

The second court date is called a “status hearing,” which is appropriately named because the court uses this hearing to determine the status of the case.

At the status hearing, the defense attorney will inform the court regarding whether or not a plea offer has been extended and whether the individual wishes to accept or reject the offer. If the defendant accepts the plea offer, he or she may enter into the plea at the status hearing. If the defendant rejects the plea offer, the case will be set for trial. The defense attorney can also use the status hearing to address discovery issues, such as the government failing to turn over video footage or other evidence.

DUI Trial

If the individual chooses not to accept the plea offer, the case will be set for trial.

The trial date begins with the court confirming with the government that they are ready to proceed to trial that day. The government is the only side that must present witnesses because the government has the burden of proving the defendant’s guilt. As such, if the government’s witnesses are not ready or not available that day, the case can either be outright dismissed or the court can decide to continue the trial to another day. Whether the case gets dismissed or continued is entirely within the discretion of the Judge.

If the government’s witnesses are present and ready to testify, the case will proceed to trial. At trial, the government first puts on their case-in-chief. In DUI cases, that generally includes the officer that initiated the traffic stop, the officer that conducted the field sobriety tests, and the officer that conducted the breath test. The defense attorney has the chance to question (“cross-examine”) each witness after the government elicits the witness’s direct testimony. The defense attorney can utilize this cross-examination to point out deficiencies or inconsistencies in the witness’s testimony.

Following the government’s case-in-chief, the defense has the opportunity to put on its own evidence. Sometimes this entails introducing defense witnesses, such as a friend or spouse who was with the defendant on the night of the arrest and can testify as to how much — or how little — the defendant had to drink. The defense can also introduce video evidence, such as body camera footage, that may be beneficial to the defense’s case.

Following the close of both the government and the defense’s cases, the Judge will determine whether or not the defendant is guilty. The Judge generally has to explain his or her reasons supporting the verdict.

Sealing/Expunging a DUI Conviction

One of the reasons why defense attorneys fight so hard for the government to offer a diversion agreement for DUI cases is because a DUI conviction in particular can never be expunged (or “sealed”) in the District of Columbia.

Therefore, not obtaining a conviction can be very important for individuals who have been charged with driving under the influence in the District of Columbia. As such, it is crucial to have attorneys on your side who are experts in DUI law and litigation, such as the attorneys at Bruckheim & Patel. Call (202) 930-3468 today for a free DUI consultation.

The Rules of Evidence is one of those boring topics that causes non-lawyers (and some lawyers, unfortunately) to zone out and lose interest. However, the evidentiary rules – and changes to the rules – can drastically affect the outcomes of criminal cases. Bruckheim and Patel have been leading the charge to litigate one of the recent changes to the law that may have a drastic impact on the results of cases in the Superior Court of the District of Columbia – particularly for Driving Under the Influence charges.

This article will seek to quickly explain what has changed in the law and how Bruckheim & Patel is using this change to produce beneficial outcomes for our clients.

Lay Person Testimony vs. Expert Testimony

First, testimonial evidence can be characterized as either: (1) lay person testimony; or (2) expert testimony.

Layperson testimony (FRE 701) is when a witness testifies as to observations or opinions that do not require scientific knowledge or specialized training. For example, any witness can testify that someone’s eyes look red or that someone fell when they tried to get out of the car.

Expert testimony (FRE 702), on the other hand, is based on “scientific, technical, or other specialized knowledge” that is the product of the witness’s “knowledge, skill, and experience” (FRE 702). Examples of this type of testimony include a certified officer who testifies that a driver’s eyes moved involuntarily during the Horizontal Gaze Nystagmus field sobriety test or a psychologist who testifies how a certain mental illness can effect a person’s actions or thought processes.

Court As A Gatekeeper For Expert Testimony

The court has the duty to decide whether any evidence is allowed in trial – whether it be layperson testimony or expert testimony. As the DCCA explained, the court’s function is to be a “gatekeeper” who decides what comes in and what stays out.

Previously, the judges were permitted to allow expert testimony in a trial if the scientific community accepted the applied methodology or reasoning. This “general acceptance test” meant that the trial was based on the combined opinion of experts in the field. In practice, this means that this rule applied in the 16th century would have allowed experts to testify that the world is flat.

The DCCA acknowledged the problems with this “general acceptance test” in the case of Motorola Inc. v. Murray and got rid of it. In its place, the DCCA determined that expert testimony can only be admitted if the testimony is “the product of reliable principles and methods.” The objective is an honorable one: “to deny admission to expert testimony that is not reliable.”

As the District Court of Maryland in United States v. Horn stated this change means that “everything old is new again,” and that long-established evidentiary standards must be re-evaluated based on this new decision.

New Reliability Test Applied To Field Sobriety Test Testimony

One of the most important pieces of evidence that Bruckheim & Patel is demanding be reevaluated under this new standard is the officer’s testimony regarding standardized field sobriety tests in DC DUI or OWI trials.

There are generally three standardized field sobriety tests: the Horizontal Gaze Nystagmus Test, the Walk and Turn test, and the One Leg Stand Test. The Horizontal Gaze Nystagmus test – in which an officer uses a pen to test whether an individual’s eyes demonstrate nystagmus (involuntary movement) at a certain degree, is the only test that has constituted “expert testimony” in the past. The Walk and Turn and the One Leg Stand have both been determined to be only lay testimony.

So, there Bruckheim & Patel is currently tackling two issues: (1) whether the other two tests (walk and turn and one leg stand) should also be considered expert testimony; and (2) whether any of the tests pass the new “reliability” test.

All Standardized Field Sobriety Tests Require Expert Testimony

First, testimony regarding any of the tests should constitute expert testimony and be required to pass the “reliability” test pursuant to the new rule.

The reason for this is simple: only specially trained officers who undergo 40 hours of training and a certification process are allowed to administer, interpret, or testify to the results of the tests. The ability to give the instructions, the clues to look for, and the interpretation of the results are all the product of “specialized knowledge” that even the average police officer does not have. Therefore, any argument that testimony regarding any of the tests constitutes merely “lay person” testimony that does not require specialized training is a fabricated falsehood.

None of the Field Sobriety Tests Are Reliable Indicators of Intoxication

As all of the tests require expert testimony, all of the tests must pass the new “reliability” test to be admitted into evidence as evidence that the driver was intoxicated. However, none of the tests constitute reliable indicators of intoxication.

The organization that creates the tests and trains the officers in administering and interpreting the tests is the National Highway Traffic Safety Administration (NHTSA). This organization conducted studies in 1977 and 1981 to test the reliability of these field sobriety tests. In these studies, subjects consumed alcohol at different amounts and officers had to “arrest” those who they thought had a Blood Alcohol Content of 0.10% based on their performance on the field sobriety tests. The results showed that the officers wrongfully arrested 47% and 32%, respectively. These results would never be found to be reliable in a scientific setting, and therefore should not be found reliable in court.

Further, a large number of studies have shown that poor performance on the field sobriety tests can be due to some different causes other than intoxication, such as illness, neurological deficiencies, reactions to medication, and many other factors. Therefore, the driver’s performance on a field sobriety test is not a reliable indicator of intoxication.

Fighting for Change

Bruckheim & Patel is fighting to ensure that this change mandated by the DCCA is properly implemented in D.C. Superior Court by tirelessly filing motions, requesting hearings, and zealously arguing the proper application of these new rules to the field sobriety tests. It is likely that success with this argument can mean big changes for those accused of Driving Under the Influence in the District of Columbia.

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