Category: DUI/DWI

When most people get pulled over for suspicion of a DUI, they automatically think about whether they had any alcohol or how long it had been since their last drink.  Rarely do people think about their diet and how that could affect a breathalyzer test.

People may need to add this to a list of their concerns.  With society’s ever-increasing pressure to look fit and thin, a lot of people are turning to fad diets to accomplish these goals. However, some diets, like the Keto diet, may negatively impact a breathalyzer test and make it appear like a person is more intoxicated than they are.  

Low carb diets, such as the newly popular Keto diet, involve eating little to no carbohydrates but eating more fatty foods. This way, when your body tries to burn carbs for energy, and there are none to be burned, your body burns fat for energy instead. This may sound like a good idea because it is effective and works fast, but this can cause surprising side effects for breathalyzer tests.

Can Ketosis cause false positive breathalyzer?

Yes, when in ketosis the body creates acetone as a byproduct, which is released through your breath in the form of isopropyl alcohol. A breathalyzer test will be will read the isopropyl as ethanol, which is used to make most alcoholic beverages

Your body likely won’t have enough isopropyl in it to cause a reading of above .08 on a breathalyzer test. However, a problem could arise if you had been drinking prior, even if it’s not enough to put you over the legal limit because the isopropyl would cause a higher reading than your actual blood alcohol content would indicate.

If the officer has sufficient indicators to offer you a field breath test, or if you’re taking the breath test at the police station, you will likely be charged with driving under the influence if your results come back positive. However, a blood alcohol content test would not be subject to the same inaccuracies as a breath test and could prove a positive breath sample as false. 

Even though law enforcement officers may be aware of this possible false positive, rarely do they ask questions to determine if the person is on a Keto diet before administering a breath test. 

It is important if you feel you are not under the influence of alcohol, but on a Keto diet, to request a blood alcohol test rather than a breathalyzer. The officer may not oblige, but at least your request would be noted if the officer is wearing a body camera, like all officers are required to wear in the District of Columbia, and could help you at trial. 

Even though the Keto diet may make you look your best when it comes to possible DUI charges, it may be best to stick with eating the cheeseburger and fries. 

If you have been charged with a DUI and believe the breathalyzer reading produced a false-positive result due to your diet, speak to our DC defense attorneys about your case and see what your options are. Contact Bruckheim and Patel for a free consultation of your case.

Having a conviction on your record can impact aspects of life as a citizen in ways perhaps not initially realized. One of those is the privilege connected to operating a driver’s license in Washington, D.C. Like various states in the union, D.C. works on a point-based system when it comes to determining the effects certain convictions have on someone’s ability to exercise their privilege to drive. Depending on the situation, the impact on one’s license will vary.

How the Point System Works

The structure of the D.C. point system is actually quite straight forward – certain charges are going to incur a certain number of points. Those who accumulate too many points are then at risk of having their driving privileges removed. Your right to drive is at risk of being suspended once you have acquired around 8-9 points, while if you reach 10 points, a suspension of the license is mandatory. These points stay on a driving record for two years. 

Then, points are required to be deleted via the DMV guidelines. In these same DMV guidelines, it also states that the department is required to provide safe driving points. These points are collected by going a calendar year without drawing a single negative point. One year without a negative point is equal to one safe driving point, with a maximum of 5 safe driving points on a record at any given time. 

Unlike punitive points which are removed after two years, safe driving points are taken off one’s record after five years. While ten punitive points accrued requires a license suspension, over 12 points could end in the revoking of a license.

The point-system includes everything from “following another vehicle too closely” (2 points), all the way to “leaving the scene of a collision in which personal injury occurs” (more commonly referred to as a hit and run), which is equal to 12 points. 

If at a hearing you are found liable for some moving violation, the point system determines the number of points assigned to your record. Important note: in D.C., paying a ticket is considered an admission of liability, and therefore will also result in the application of these points to one’s driving record once the ticket is paid but not when the ticket is assessed.

Removal of points can be a relatively painless process depending on the reasoning for the sustained infraction. For example, a simple moving violation and the subsequent points can be removed with the simple completion of an online defensive driving course – the points will be removed entirely from the record. Do note that if you are going to go this route, prior approval from the D.C. DMV’s Hearing Examiner is required.

How Certain cases Impact a License and Reinstatement Process

Perhaps unsurprisingly, DUI, DWI, and OWI’s are more serious cases that have substantial impacts on one’s driving privileges. In D.C., being found liable for any one of these crimes results in the automatic suspension of one’s license. Equally important to note is that entering into a DSA, Deferred Sentencing Agreement could potentially result in limitation, suspension, or even revocation of one’s license. 

A DPA, or Deferred Prosecution Agreement, however, cannot be used to limit, suspend, or revoke one’s license. In D.C., unlike in some states, if you are found liable for any one of the three drinking and driving violations, you are not allowed to request a limited occupational license, which further restricts one’s ability to use a vehicle.

These three instances are not the only types of cases which impact one’s driving privileges.

License Revocation for DUI

In fact, many cases can impact a license in one way or another as a form of collateral. Failing to make child support payments, for example, can result in the suspension or even revocation of a license.

It should be noted that the number of convictions for these types of cases can impact the length of suspension or the possible revocation of a driver’s license. In D.C., the first offense generally results in the suspension of a license for 6 months in addition to the 12 points on the offender’s license. This is in conjunction with a retest to obtain the license once more. 

It only gets worse from there, with 2nd-time offenders having their license revoked for one year, while a third-time offense will result in a license being revoked for 3 years if it occurs within 15 years of the other cases.

If convicted, the reinstatement process is going to look slightly different. A suspension of your license, naturally, means you must wait until the conclusion of that time period. 

There will also be a $98 reinstatement fee when you go to the DMV following the conclusion of your suspension. You will also need to complete a Traffic Alcohol Program. 

In the case where your license was revoked as opposed to suspended, your process will be more involved. You will be required to attend a hearing and complete a certified substance abuse program. Various tests will then be conducted to make sure you are safe for the road again, including a driving knowledge test, attaining a driver’s permit, taking and passing a road test, until finally getting your license. You must also cover any and all fees that are associated with this process.

For further questions relating to how criminal convictions may impact your driving privileges, contact Bruckheim & Patel to have one of our criminal defense lawyers in Maryland or D.C. look at your case. 


With the boom in popularity of ridesharing services such as Uber and Lyft over the past decade, there has been a lot of discussion on their impact in society. One of the most pressing issues is whether these services are a method of lessening DUI and OWI cases across the country. 

The apps themselves like to claim that they are having a positive impact on the community when it comes to drunk driving. Instead of getting behind the wheel while intoxicated, an individual can now use their smartphone to call a ride to their location. But does the data support this?


When conducting a study on the impact ridesharing has on DUI/OWI rates, the research-design is rather complex. There are a multitude of factors that go into one’s decision-making process when going out to drink and how to get home. This can include anything from whether there is a designated driver, to access to public transportation. 

The rates of drunk driving are equally impacted by state laws or time frames used in the research-design, meaning the data is driven by variables outside just those of the individual. To conduct research capable of controlling for all factors, studies require extensive time and careful planning. When considering test results, it’s possible these factors could have skewed the data in one direction or another. 

Correlation vs. Causation

Another key component is the issue of correlation vs. causation. Many of the studies that focus on this issue are correlation-based research designs. This means that while some correlation in these studies has been identified, they are not conclusive enough to claim causation. 

A study might find that in the years following a ridesharing service, the number of fatal accidents involving drunk or impaired driving may have decreased. They do not and cannot necessarily claim that this is without a doubt due to the introduction of this service. 

Finally, as is the case with any research, knowing who conducted the analysis is important to ensure there is no bias in the results or claims. For example, there was a study by MADD (Mothers Against Drunk Driving), which found Uber usage rates were higher during times most commonly associated with drunk driving. It is important to note, however, that this was conducted in partnership with Uber. Although the report’s findings need to be considered, so too does the source.  


This topic has been getting attention from many academics and advocacy groups over the past few years. Most reports fall in line with that of the aforementioned MADD-Uber report, which shows there tends to be a decrease in the overall alcohol-related incidents when ridesharing is introduced into the community. 

However, this idea was conducted and implemented long before Uber, Lyft, or any other app-based ridesharing entity existed. For example, decades ago, in 1983 in Aspen, Colorado, a program called The Tipsy Taxi was launched to target those who may have otherwise driven drunk. The program, available 24 hours a day, every day of the year, is administered by the County Sheriff’s Office to this day. Nighttime injuries, fatal crashes, and alcohol-related accidents all saw declines of nearly 15% following the implementation of the program. 

However, the program’s website notes that after the extension of the public bus system from 11:30 PM until 2:30 AM, the program saw a steep decline in usage. This was not paired with an increase in alcohol-related incidents, indicating it is possible merely having an alternative to driving was the benefit, rather than the Tipsy Taxi itself.

There is no denying the overall logic of Uber and Lyft’s claims that they help work towards reducing drunk driving – a widely accessible mobile app that allows customers to call a ride from wherever, whenever, to any destination. When Uber was introduced in New York in 2011, many began using the app, and an independent study done by CUNY found that generally speaking, these claims held water. In four boroughs of New York City, where the app was introduced, there was a 25-35% reduction in alcohol-related car accidents since its inception. 

Similar findings were made by an independent Miami Herald investigation, which found that the number of arrests made in 2017 by Miami-Dade County’s two largest police stations was down 65% from four years earlier. The City of Miami Police Department reported a 31% decrease over that same period. 

The University of Pennsylvania evaluated Portland, Oregon, and San Antonio, Texas, as case studies which found that DUI’s dropped 60% after the introduction of Uber and other ridesharing apps in the region. 

However, not every single piece of analysis done on ridesharing has supported this idea. A widely cited research review published in the American Journal of Epidemiology failed to find a substantial correlation between fewer DUI crashes and the availability of ridesharing services. It also found no correlated decrease in the number of deaths related to automobile crashes when involving impaired drivers. This study considered the differences in roll-out periods of Uber and looked at the 100 most populated metropolitan areas in the U.S. No association was found. 

It is hard to deny the general logic that supports the idea of Uber and other ridesharing applications lower the number of drunk drivers on the road. While most studies on this issue support this idea and find some level of association between lower alcohol-related incidents and the introduction of ridesharing, nothing is conclusive. Therefore, this question will continue to demand greater statistical analysis to determine if there is any correlation and causation to these two factors. 

For further legal questions relating to drunk driving, DUI/OWI, or other traffic-related incidents, contact Bruckheim & Patel to have one of our criminal defense lawyers in Maryland or D.C. take a look at your case. 

When charged with driving under the influence in Washington, D.C., driving privileges can be revoked for a certain period of time, depending on other factors, such as compliance with DUI chemical testing and prior offenses. In the
District of Columbia, first-time offenders are subject to anywhere from six (6) months to one (1) year license suspension.

In most states, the traffic court judge can take action regarding one’s privileges to hold a license. In DC, the matter is left entirely up to D.C. Department of Motor Vehicles, while a D.C. traffic court judge can still impose jail time, fines, and probation on top of the DMV license sanctions.

However, the DC DMV cannot revoke your license if another state issues it. In this case, the DC DMV can revoke a non-DC resident’s driving privileges inside the borders of the District but cannot physically take the license. The DC DMV can notify the state DMV that issued your license of the infraction, and the issuing state can take action based on their own laws.

How Different State Laws Co-Exist

DUI laws differ state by state, with some states imposing harsher penalties for first-time offenders. While other states offer a lower statute of charges. States such as Arizona, Georgia, and Tennessee have mandatory jail time for first-time offenders, while Wisconsin’s law designates a first time DUI offense as a civil infraction.

In Washington, D.C., there are three different statutes you can be charged with for drinking and driving: driving while intoxicated, driving under the influence, and operating while impaired. Not all of these offenses exist in other states, so if there is no equivalent statute in your home state, it may not affect your ability to drive in your home state.

Penalties in Your Home State

If you are charged with a drinking and driving infraction in D.C., your home state can find out two ways. First, the DC DMV may notify the DMV of your home state to allow them to take whatever action they see fit regarding your privilege to possess a valid license.

Second, the information will be put in the National Driver Register, a computerized database that contains information on all individuals across the country who have had their licenses revoked, suspended, canceled, or denied or who have been convicted of serious traffic-related offenses. Your state won’t be notified that you have been entered into the system, but an officer can access this information if you are pulled over or arrested.

Re-instating Driving Privileges in D.C.

Those who have driving privileges revoked by the DC DMV can schedule an appeal hearing. Out-of-state residents have 15 days after notice of revocation to schedule a hearing with the DC DMV Adjudication Services, where the arresting officer will provide testimony, and you can make an argument.

If granted a license reinstatement after revocation, the DMV requires you to go through the steps of obtaining a license again and pay a fine. If your license is revoked due to a drinking and driving infraction, the DMV will usually require additional conditions, such as an alcohol/drug counseling program, a negative drug test, or installing an ignition interlock device in your car.

During this process, you are allowed to have an attorney present. This is recommended because testimony given in DMV hearings can be used against you in a criminal case in D.C. To speak with a dc criminal defense attorney regarding your case, contact Bruckheim & Patel for a free consultation.

Stop. Don’t do it.

With three large universities and seventeen other colleges and institutions, Washington D.C. has a reputation for being a college-town. There are currently about 63,000 students in Washington’s three largest colleges: George Washington University, Georgetown University, and American University. But that’s not all the city has to offer, for D.C. is also home to a vibrant night life with some of the country’s most famous bars and clubs. However, putting these two together leaves the city with a huge underage drinking problem. This problem isn’t unique to the District, but rather is part of a larger public health issue that faces the nation and threatens thousands of lives every year.

Your First Drinking Age Through History

In 1965, the average age people in the US tried their first drink was 17.5. In 2003, that number jumped all the way down to 14. As American’s are exposed to alcohol at a younger and younger age, the problems associated with alcoholism worsen. In fact, teenagers who reportedly start to drink before the age of 15 were four times more likely to report depending on alcohol at some point throughout their lives. But in order to combat early onset alcoholism, you first must understand why teenagers are so susceptible to drinking. Around age 9, children tend to have a negative point of view towards drinking, but around age 13 these beliefs tend to shift and become positive. Furthermore, at this point in their lives teenagers are more likely to take risks and seek thrills, and for some that means drinking. Hereditary factors also play a huge role in the likelihood of underage drinking as well as the environment that they grow up in. Lastly, youthful teenagers tend not to experience hangovers or other negative experiences associated with binge drinking that adults feel, meaning there are less repercussions for doing so.

Why Should You Care?

But why is this an issue? Well there are many reasons Washington residents should be concerned. For one, D.C. has some of the strictest underage drinking laws in the US. Currently it is illegal to possess, consume, purchase, or attempt to purchase alcohol for anyone under the age of 21, with no family or location exceptions that many other states have.

DC statute § 25–1002 is entitled: Purchase, possession or consumption by persons under 21; misrepresentation of age. Violators are subject to fines up to $300 and up to 90 days incarceration for a first violation; a fine of not more than $600 and suspension of driving privileges in the District for 180 days upon a second violation; and upon the third and each subsequent violation a fine of not more than $1,000 and suspension of driving privileges in the District for one year.

The Beginning Of A Host Of Health Issues

Underage drinking also causes a lot of health problems limiting the development of the brain, liver damage, and disrupting the hormonal balance during puberty. Lastly, and most importantly, underage drinking is responsible for the deaths of about 5,000 minors each year. This includes 1,900 from drinking and driving, 1,600 from homicides, and 300 from suicides. By resolving or limiting the issues of underage drinking, we can save thousands of lives every year.

It is common knowledge that people should not drive when they are under the influence of drugs or alcohol because of the serious harm that one can cause to themselves and others if they get behind the wheel in an inebriated state. The messages in advertisements and speeches given by political leaders warn us that the consequences of driving under the influence can be horrific, but there is very little clear information about what exactly could happen in terms of the law and judicial reach. The basic facts about the personal penalties that one could be subjected to are not regularly advertised, so this article will go over the basics.

Zero Tolerance For Underage

First, if one is under 21 years of age, Washington DC has a zero tolerance policy so anything over .00% BAC is considered over the limit. If someone is over the age of 21, the legal limit to get behind the wheel of a vehicle is 0.08% BAC. If someone is driving a commercial vehicle, the legal limit is 0.04% BAC. These numbers vary slightly throughout the United States, but only very little.

If one gets pulled over, a series of tests are conducted by the police officers on site and then additional tests are conducted once back at the police station. In Washington DC one can refuse to take a chemical test, but DC has an implied consent law meaning that the DMV can suspend their license without the chemical test or if the chemical test shows a score above the legal limit. When the individual accused of driving under the influence appears at their criminal court date, there are three penalty areas that the court has to decide on: 1) the possibility of jail time; 2) The monetary fines; 3) Driver’s license suspension.

Prior Convictions Play A Role

One of the main issues that the court considers when addressing these three areas is how many prior driving under the influence convictions the individual has. Knowing the individual history of the person informs the court on the sentencing parameters. For a first offense, the individual can receive up to 180 days in jail, up to a $1000 in fines, and 6-month license revocation. For the second offense, the individual can receive up to 1 year in jail with a minimum mandatory sentence of at least 10 days, between $2,500 and $5,000 in fines and a year license suspension. For the third driving under the influence offense, the individual can face up to one year in jail with a minimum mandatory sentence of at least 15 days, between $2,500 and $10,000 in fines and a two-year license suspension under § 50-2206.13. The DMV will impose a license suspension if convicted or entering a plea of guilty to a DUI or OWI in the District of Columbia. The court can suspend all of the sentence outside of the mandatory sentence and impose a period of supervised or unsupervised probation.

It is important you hire someone that understands DUI and OWI charges in the District of Columbia. For a free consultation of your case, call us at 202-930-3464.

The National Academics of Sciences, Engineering and Medicine released a report at the start of 2018 that advocates for the lowering of the Blood Alcohol Concentration (BAC) level limit for driving. It encourages the limit be lowered from 0.08% to 0.05%. The yearly report concluded that there are over 10,000 deaths caused by drunk driving every year in the United States. This fatality rate is statistically high compared to other countries around the world.

BAC And Its Relation to Drinks

Blood alcohol concentration is not correlated directly to a certain number of drinks consumed, but correlated to an individual’s height, weight, gender, body mass and whether or not they have eaten during the day. It is a common belief that there are a specific number of drinks that an individual can consume before they exceed the 0.08% BAC limit, but it is not as simple as that since there are many other factors, as mentioned previously, that play significant roles in an individual’s BAC level.

DWI arrest-Washington-DC

The report strongly suggests that access to alcohol state-wide and nationally should be limited and that the national and state taxes on alcohol should be increased. Limiting access to alcohol could be simple practices, such as shortening selling hours or creating a maximum amount of alcohol that is able to be bought at one time. As expected, the pushback from the restaurant and liquor store industry has been immediate and strong. The industry argues that it would put an unnecessary strain on businesses all over the country. Lowering the legal amount of blood alcohol concentration would make individuals stop drinking before they truly needed to, thus lowering sales and negatively affecting the overall industry.

Lowering Limit Related to Other Countries’ Standards

This push for a lowering of the blood alcohol concentration legal limit for getting behind a wheel from 0.08% BAC to 0.05% BAC is somewhat based on the blood alcohol concentration legal limit in a large majority of the countries around the world. In the District of Columbia and Maryland, the legal BAC currently as it stands is 0.08. This BAC was decreased from 0.10 and is now currently the national standard. Scientists from the National Academics of Sciences, Engineering and Medicine have determined that the countries with lower BAC limits have reported a lower fatality rate overall. Many countries in Eastern Europe have a zero-tolerance policy on driving after one has consumed any alcohol and as one goes west and over to Asia, the limit begins to lift. To name a few, China and Poland have a 0.02% BAC limit, Japan has a 0.03% BAC limit and South Africa, Thailand and Italy has a 0.05% BAC limit.

Ultimately, most countries around the world have a lower BAC limit than the United States and the deaths involving intoxicated drivers are lower. The future cannot be predicted 100% accurately, but there are claims saying that if the BAC limit was lowered to 0.05% nationwide, there would be a noticeable decrease in fatal accidents involving an intoxicated driver. What happens remains to be seen.

Imagine, you are driving down a busy street. You are following the laws, driving responsibly, and you are not impaired. All of a sudden, a car hits you from behind. You hit your head on the steering wheel, and now you feel strange. When the officers arrive, they believe you are acting in an unusual manner. They force you to undergo Standard Field Sobriety Tests. They determine you failed the tests and arrest you for a DUI.

Across the United States, drivers whom officers believe to be impaired undergo certain exercises called Standard Field Sobriety Tests (SFST). These exercises test a person’s ability to maintain balance, follow instructions, and tests their concentration and memory. While there are many issues with these tests, one of their major flaws is they can be heavily swayed by a person’s physical condition.

Common Concussion Symptoms

According to the Centers for Disease Control and Prevention, common concussion symptoms include: nausea and vomiting, dizziness, difficulty thinking clearly, unusual behavior, dilated pupils, difficulty remembering new information, balance problems, slurred speech, and in severe cases a loss of consciousness. Meanwhile, common symptoms of alcohol intoxication include confusion or unusual behavior, nausea and vomiting, balance problems, slurred speech, dilated pupils, memory problems, and in severe cases a loss of consciousness.

Going back to the previous hypothetical, the driver of the vehicle sustained a concussion from hitting their head on the steering wheel. Due to this head trauma, the driver showed multiple common concussion symptoms. However, officers misconstrued this as evidence of alcohol intoxication, leading them to arrest the driver for a DUI. In the District of Columbia and around the country, this is not an unusual experience.

Symptoms of concussions and alcohol intoxication materialize in very similar ways. Confusion, unusual behavior, and difficulty thinking clearly may be red flags for officers to investigate if a driver is intoxicated. As stated before, officers will have you undergo SFSTs which test for symptoms of intoxication, but these symptoms are also often experienced by those suffering from a concussion or other head trauma.

The Different Field Sobriety Tests

There are three field sobriety tests officers are instructed to do: Horizontal Gaze Nystagmus, Walk and Turn, and the One Leg Stand. In the Horizontal Gaze Nystagmus test, an officer will hold a pen or flashlight in front of your eyes, and instruct you to track the object while they move it back and forth. While you do this, the officer is looking for involuntary movements of your eyes referred to medically as nystagmus, difficulty tracking the object, and dilated, red, and/or watery eyes. A person who has a concussion will exhibit many these signs as well.

In the Walk and Turn test, officers will instruct you to walk a certain amount of steps heel to toe, turn around, and walk back the same amount of steps. In this test, they are testing your balance, concentration, memory, and your ability to follow instructions. The effects of a concussion might inhibit your ability to successfully complete this test as balance and memory issues are common concussion side effects.

And last but not least, the One Leg Stand test evaluates your ability to stand on one leg without using your arms for balance for a certain period of time. As with the Walk and Turn Test, people who have recently suffered a concussion often exhibit balance issues, which might lead them to failing the test.

Previous Court Precedent

These three tests are what officers use to gauge whether or not somebody should be arrested for a DUI, and it is obvious a person with a concussion has an extreme likelihood to fail. While this issue has yet to be litigated in the Supreme Court, it has in a number of high state courts. The Supreme Court of Connecticut in State v. Morelli overturned a guilty verdict due to the effects of head trauma and standard field sobriety tests. The court found the lower court had not properly considered the effects of the defendant’s head trauma when he underwent the tests. In the Court’s ruling they stated, “we agree with … the expert testimony that evidence of a concussion would affect the reliability of the standardized field sobriety tests”.

In the event you are wrongfully arrested for a DUI due to head trauma or otherwise, contact the experienced DC DUI attorneys at Bruckheim & Patel to help. Bruckheim and Patel is one of the preeminent firms in the District of Columbia and has represented hundreds of clients in DUI proceedings including DUI DC first offense. They will be your best shot at achieving the best possible outcome in your particular case.

Below are a few of our success stories with client’s arrested with Driving Under the Influence after an accident. It is important to retain counsel that knows how to fight for your rights and has a history of success.

  • Client charged with Driving Under the Influence after colliding with a telephone pole. Odor of alcohol observed and field tests conducted on client. Evidence from station house was suppressed by defense counsel. Client found NOT GUILTY.
  • Client charged with Driving Under the Influence after hitting a tree with his vehicle. Client was taken to hospital after injuries from the crash and had an admission of drinking two shots. Client found NOT GUILTY.
  • Client charged with Driving Under the Influence after hitting a vehicle in an accident. Client failed field sobriety tests and refused to give a chemical breath sample. Defense counsel was successfully able to keep out HGN results and the refusal from trial due to video preservation issues. Client found NOT GUILTY.
  • Client charged with Driving Under the Influence after hitting a stairwell, had a bottle of tequila in the vehicle, officer observed clues of impairment and was taken to the hospital for treatment. Case dismissed.

When someone is arrested for Driving Under the Influence in the District of Columbia, an officer usually gives them a pink piece of paper entitled “Official Notice of Proposed Revocation.” This Notice tells the driver that his or her D.C. license or right to drive in D.C. will be revoked automatically unless they request a hearing at the DMV Adjudication Services located at L’Enfant Plaza. If you receive the Notice, you should hire a DMV attorney immediately to schedule a hearing so that your driving privileges and/ or license are not automatically revoked.

Notice of Proposed Revocation

At the DMV hearing, the officer who issued the Notice of Proposed Revocation has to appear to present evidence in support of the allegations. The officer has to mark the boxes next to the allegations stating what offenses they believe the driver violated, which are located at the bottom portion of the pink Notice. The common allegation is: operation of a motor vehicle while apparently under the influence of intoxicating liquor or drug, or while impaired by the consumption of alcohol, or while apparently physically or mentally unqualified to operate a motor vehicle by reason of diabetic coma, epileptic, or other seizure. Failure to mark the proper allegations can result in a dismissal for defective notice based on District of Columbia Municipal Regulation § 18-307.3.

Result of the Breath, Urine, or Blood Score

The most common piece of evidence in a DUI case that supports intoxication is the result of a breath, urine, or blood test. If the test result resulted in a Blood Alcohol Content percentage of 0.08% for a breath test or 0.10% for a urine test, this is generally sufficient evidence to prove that the driver was intoxicated pursuant to D.C.M.R. § 18-1034.

Admissibility of the Chemical Test

However, despite what some may think, not all evidence is admissible in DMV hearings. The breath or urine score can only be admitted if the officer testifying is properly trained to administer and interpret the chemical test and was present during the test. If the officer was not present or does not testify that he or she was trained to administer or interpret the test, the DMV cannot accept the score as evidence that the driver was intoxicated.

The D.C. Court of Appeals held in Lister v. England, 195 A.2d 260 (D.C. 1983) that a chemical test (breath, urine, or blood) score can only be admitted as evidence of intoxication if the officer present was the officer who administered the test and is trained to interpret the result. The Court of Appeals explained that they reversed the DMV License Revocation Order that admitted a chemical test result without a qualified officer because “the result of a chemical analysis of blood, urine or breath cannot be received in evidence in a hearing before the Department of Motor Vehicles unless accompanied by expert testimony or a witness qualified to interpret the result, because without benefit of such testimony or resort to the statutory standards the result of the analysis is meaningless.” Lister v. England, 195 A.2d at 262. See also Holt v. England, 196 A.2d 87 (D.C. 1963) (result of a urinalysis was not admissible in administrative hearing without testimony of an expert qualified to interpret such result).

Know The Testifying Officer’s Role In The Arrest

This is very important at the DMV because usually there are three officers involved in a DUI arrest: (1) the officer who pulled the driver over; (2) the officer that administered the field sobriety tests (Horizontal Gaze Nystagmus, Walk and Turn, and/or One Leg Stand); and (3) the officer who administered the chemical test. Often the only officer who shows up to the hearing is either the officer who initiated the stop or the officer who conducted the field sobriety tests. If that is the case, the DMV cannot accept the chemical test score as evidence that the driver was intoxicated.

While it is possible for the officer to present enough evidence without the breath or urine score, the admission of the score is often an automatic win for the government. So, keeping it out using Lister v. England and Holt v. England is certainly a step towards keeping your D.C. driving privileges.

The best way to ensure the most positive possible outcome in your DC DMV case and DMV License Revocation hearing is to hire an attorney, who can cite to the authority and check to make sure that the government and hearing examiners are following all of the correct rules and regulations.

Contact Bruckheim & Patel at (202) 930-3468 to consult with an experienced DC DMV attorney immediately!

On July 26th, an arrest in Utah caught national attention and is now under the investigation of the FBI. Officer Jeff Payne aggressively arrested University of Utah Hospital nurse Alex Wubbels after she refused to allow the officer to draw the blood of a patient. Officer Payne grew agitated after being repeatedly told his desire to draw blood from the unconscious patient was against the law and hospital policy. Eventually, the officer violently dragged the nurse out of the hospital and placed her under arrest.

Potential Violation of Hospital and Department Policies

According to hospital policy, a number of circumstances must be met in order for police to draw blood. The suspect must either be placed under arrest, give consent, or the officer must have a court order to draw blood. This incident met none of these circumstances. The Salt Lake City Mayor and Police Department issued an apology. They further said that the officer violated a number of city and department policies, including violations to arrest procedures, officer conduct, and ethics. The two officers involved in the incident have been placed on administrative leave during the investigation, and Officer Payne was suspended from the department’s blood drawing unit and fired from his part time paramedic job.

It is clear the officer in this instance violated or wished to violate a number of civil rights of those involved. Nurse Wubbels was eventually released from police custody without charges. The patient’s blood was never drawn as he was unable to give consent due to being unconscious, was not under arrest, and officers did not have a court order. However, it begs the question: what are your rights if you are involved in such an instance?

Law Supported By Supreme Court Case

Police are never allowed to forcibly draw your blood if you are not under arrest, do not give consent, or they do not have a court order. This was reinforced in 2016 by the Supreme Court case Birchfield v. North Dakota in which the court ruled blood tests were too invasive to force anyone not under arrest to be subjected to. The court upheld officer’s ability to conduct breath tests without a warrant or without arresting a suspect in Driving Under the Influence cases. As this is a Supreme Court decision, this ruling is binding throughout the country and every police officer subject to abide by it when investigating a DUI or DWI.

DC Holds Specific Guidelines

In the District of Columbia, the Metropolitan Police Department (MPD) has specific guidelines that members of the police force must follow when interacting with people in their custody in the context of injury, illness, and in hospital settings. The most important thing to be aware of is that you have a constitutional right to immediate medical attention. Police officers cannot limit, interfere, or delay medical treatment if you request it. According to the Medical Treatment and Hospitalization of Prisoners [General Order 502.07], the guidelines that dictate police conduct regarding medical treatment, a police officer must, “immediately notify an official and request appropriate medical assistance when they become aware that a prisoner is injured or reporting illness”. Upon arrest, you have the right to request medical attention, and officers must comply with your request even when an officer may suspect the individual was driving while impaired.

When you are brought to a hospital, whether newly arrested or after a period of imprisonment, officers must follow the guidelines of General Order 502.07. Officers must maintain the integrity of all medical devices found on your person at all times. This includes Life Alerts, medical ID bracelets, or other signifiers. At no time may officers remove these items upon arrest. Once at the hospital, officers have a number of instructions with how they may and may not interact with patients. This includes restraining at least one leg or arm (or more if the officers deem it necessary) of the patient at all times, unless this restraint interferes with medical treatment. Furthermore, patients in MPD custody are not allowed to receive visitors, make phone calls, or watch TV. There must be at least two officers watching the patient at all times; however, if the patient is violent or shown signs of attempting to escape, then more officers may be assigned. Lastly, officers must fill out a specific form that details the patient’s injuries or health issues, photographs must be taken, and the form must be completed with “sufficient” information, including the location of physical injuries.

Guidelines Still Apply If Imprisoned

If you are imprisoned, these guidelines still apply. During intake, all prisoners go through a routine health assessment, which includes physical and mental health evaluations, infectious disease screening, and if necessary laboratory and radiology services. All prisoners have access to health care, and it is illegal to deny a prisoner their right to such access.

Your rights as an individual are important to know. As the situation in Utah shows, sometimes those that are meant to protect our rights violate them. Just because a police officer tells you to do something, doesn’t necessarily mean they have the legal authority to do so. It is imperative you know your rights and advocate for yourself in the same way Nurse Wubbels advocated for her patient. If you believe your rights were violated, contact the experienced DC DUI attorneys at Bruckheim and Patel to protect your civil liberties and advocate for your rights.

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