D.C. DUI Blog

A Honest Opinion...Finally

Wed, 12 Dec 2007 06:50:03 -0500

On December 10, 2007, Minnesota Judge Jack Nordby finally took a stand issuing an order that quite simply stated "[t]he company and the state cannot bargain away the people's rights and privileges." His opinion recognized our Constitutional rights and refused to compromise those rights for anything short of "National Security." At least currently, DUI defendants are not "held off shore in wartime" where the war is not a war against terrorism, is not a war against drugs, but is a war against those simply accused of impaired driving. The opinion calls for an end to the secrecy regarding the way the testing machine works, and it demands a mutuality of remedy. "Just as a person who choses to drive impliedly consents to the testing of his system for intoxicants, a seller or user of a testing instrument impliedly consents to the full disclosure and testing of all aspects of the device." He goes on to say that "[i]t bespeaks an astonishing degree of hubris for a company that designs and markets a device specifically to produce evidence for use against individuals in our courts to believe that it must not make every single piece of information concerning that product's composition and functions immediately and fully available to both the purchaser (the state) and the subject of its analysis (the driver)." His further opines that the "state cannot proffer evidence and claim immunity from the obligation to show its evidentiary foundation, especially not on behalf of a private non-party." He concludes his opinion stating that the defense must be afforded its Constitutionally guaranteed right to present its defense and confront the evidence and witnesses. The state was given 30 days to comply with the order or the evidence of the breath test was to be excluded. Will the state do the right thing? Check back later to find out the answer.

The Scarlet LetterS - "DUI"

Wed, 12 Dec 2007 06:21:08 -0500

If you think we have it bad here in DC, take a look around the country and see what may be coming if we are not careful. In Arizona, on proscutor's office has gone so far as setting up a website that publishes the photos of person's convicted of DUI. If you are unlucky enough to be convicted of Felony DUI, your face may even appear on a billboard along the highway. Would this type of program be accepted if the offense was anything but DUI?

I just have a few questions:

(1) Where are the funds that support this coming from?

(2) Is this a seperation of powers issue?

(3) Is is appropriate for the executive branch to make up and enhance its own penalties where the legislature has not acted? and

(4) What the .... are they thinking and how could they believe that their conduct is even remotely acceptable?

Take a look at the original article and see the writing on the wall. Defense attorneys' must remain on guard to prevent this mentality from migrating the the "Capitol of the Free world."

The original article can be found at:

http://www.nytimes.com/2007/12/10/us/10drunk.html?ex=1197954000&en=b24e5e70e7568b2a&ei=5070&emc=eta1

Sleep driving defense saves defendant.

Sun, 02 Dec 2007 22:24:03 -0500

Hard work, exhaustive investigation, and an unyielding belief in the client's innocence combined to enable a Massachusetts lawyer to save his client’s freedom. This case further highlights the significance of the defense attorneys role in our justice system.

A thirty Six year old attorney went to sleep hoping to get a good nights rest, but he woke up in a nightmare. The next thing he remembered, he was being placed under arrest by the police and told that he had just killed a man with his car. Prior to going to sleep, Ki Young O had taken a prescribed dose of Ambien for his clinically diagnosed insomnia. He came to his lawyer describing his situation and professing his innocence. How many of you would have believed his story? What sort of a defense would you have tried to develop? Was this a case for an early plea?

Not for the Mr. O’s attorney. He went to work for his client and soon discovered his defense. How many of you would laugh at the defense of “sleep driving”? After consulting with experts and researching the side effects of Ambien, he discovered that the FDA has recently added "Sleep Driving" and “Sleep Eating” to the list of possible side affects of Ambien. With the FDA’s seal of approval on his defense, the attorney was able to combine Mr. O’s testimony with that expert witness, Dr. John Winkelman. The judge found Mr. O not guilty of vehicular homicide. A link to a recognized news source that reported the case can be found here:
http://www1.whdh.com/news/articles/local/BO68004/

What does Justice/Money have to do with it?

Sat, 01 Dec 2007 09:22:54 -0500

I am interested in looking into the role that funding plays in OAG and a particular assistant’s decision-making process. In a bizarre recent case, the assistant did not seem to have any interest in reaching a just resolution of the matter. I observed a stubborn resolution to achieve a conviction on the impaired driving count at all costs. The defendant faced two cases with about 13 counts in each case, but he was willing to plea to all the counts except the impaired driving offenses (DUIs). His position was that he was not impaired, and he was willing to accept responsibility for the remaining counts that included everything from equally serious reckless driving charges, fleeing charges, and Leaving After Colliding charges to you name it. The assigned assistant's response to an offer to plea all counts but the two DUIs was simply: "That's not going to happen! He has to plea to the DUIs."
After weathering a tirade of abusive comments, I received the government’s generous counter offered to have my client plea to one DUI and the remaining counts in both jackets. They agreed to dismiss one of the DUIs. Does that seem reasonable? Since when did one DUI count equal over twenty similar offenses? The last time I asked the government to drop three counts in exchange for a plea to the lead DUI count, I got a look that made me duck for cover.
From the government's stand point, my client’s offer would have exposed my client to a greater amount of jail time and fines. Moreover, the government would have secured more then twenty more convictions then their original offer. My question remains, is it reasonable to have such resolve to secure a DUI conviction in light of the overall case. Could there be a monetary incentive? Is there some personal bias the demands a conviction for alcohol related offenses? Any other thoughts?
Oh did I forget to mention that my client is already serving a 70-month sentence on U.S. District Court charges that stemmed from the same underlying events and transactions? I did not represent him on the District court charges, but I did agree to take the D.C. Superior Court traffic cases on at the request of the presiding judge of the DUI court. I intend to take a close look the money trail and its affect on the decision making process in this case and all alcohol driving related cases. Any information, ideas, or comments would be appreciated.

The defendant adamantly holds to his innocence on the DUI counts, and I intend to see justice done in this case. It touched my heart to see the resolve in his eyes as he held true to his beliefs and said I don't care if I have to do more jail time on this case, just fight for me and prove my innocence on the two DUI counts. I will not admit to something I did not do! When money forces citizens to compromise their principles by using their liberty as a bargaining chip, society has failed, the government has become corrupt, and defense attorneys must fulfill their Constitutional mandate to protect the rights of all. As Thomas Paine said so well, "It is the responsibility of the patriot to protect his country from its government." "We do not want a police state, and it seems we are on the precipice of becoming one in the name of DUI." - Martin v. Commonwealth.

I Guess We Don't Have It So Bad.

Thu, 29 Nov 2007 22:35:44 -0500

We have all had those days where nothing seems to go right. We have to fight with a prosecutor; they are being unreasonable. We have to fight with a judge that won't listen; his ears are cocked for cell phones that ring unexpectedly in his courtroom. And we have to fight with our clients who have unfortunate expectations and only want to hear that their cases will be thrown out for a Miranda violation like on t.v. I have even heard that one PDS had lawyer had a particularly bad day when a fight with a local judge landed her in the cellblock for a few hours. But at least our distinguished court has the good sense not to book the entire courtroom on a bad day.
That is exactly what happened in Niagara Falls, New York when Judge Robert Restiano heard a cell phone go off in his courtroom. Like all courtrooms, signs were posted to turn off cell phones and pagers, but the judge was having a bad day. When he heard the phone ring, he promptly threatened, "Everyone is going to jail." When no one came forward to confess possession of the offending phone, he ordered the marshals to round up the group—all forty-six of them—and take them into custody. Despite the "inexplicable madness," the group was taken to jail. Those that could not post bail were shackled and transported to another jail. Apparently, the good judge had the fine sense not to book the lawyers, but isn’t it possible that the ringing cell phone belonged to a lawyer? And, what were the marshals thinking when they acquiesced to such a blatantly illegal order?
It seems that we may have a new and novel defense from all this though. At a hearing on his removal from the bench, the Honorable Restaino claimed the defense of "stress in his personal life." I wonder if the stress of arbitrarily being jailed would suffice to meet his standards of "stress in [one’s] personal life." The judge is now appealing the State Commission on Judicial Conduct's decision to remove him.
An article on this from a recognized news source can be found at this link:

http://www.foxnews.com/story/0,2933,313441,00.html

DCDUIBLOG.COM Begins.

Thu, 29 Nov 2007 22:24:43 -0500

DCDUIBLOG.COM…is now officially open.

DCDUIBLOG.COM is a forum for attorneys who represent clients in the Traffic Branch of the Criminal Division of D.C. Superior Court. To launch this blog, I will post several articles on current issues facing attorneys who defend clients accused of drunk driving in D.C. Superior Court. My hope is that these articles will spark a debate that will raise the bar for attorneys representing clients in Washington, D.C.

For some time now, I have noticed deterioration in the quality of representation accorded to defendants in Washington, D.C. This may be a result of a change in how court-appointed traffic attorneys are compensated. With the introduction of a flat fee system, defense attorneys were challenged with the difficult decisions of defending their clients’ rights at a financial loss or reaping the windfall of an early disposition without fully exploring, demanding and protecting their clients’ rights. It is difficult to elect to take that Constructive Possession Open Container case to trial (it typically takes at least four court dates to get to trial) when the lawyer will get the same $260.00 if he persuades the client to plea on the first court date…thereby saving hours, possibly days, of work. As defense attorneys, we must remember that it is our duty to assure that individuals’ rights are protected and guaranteed. When the defense bar's level of representation decreases there is a corresponding deterioration in the quality of law enforcement. When the quality of law enforcement deteriorates, innocent people go to jail, and this is intolerable.

Over the last few years, impaired driving defense has become increasingly complex in Washington, D.C. The Office of the Attorney General (“OAG”) has taken a hard line approach in many cases; increasingly, clients are facing mandatory jail time. OAG’s recent hard-line-mandatory-jail-time policy fails to recognize many shortfalls within its own office and the many branches of law enforcement in the nation's capital. For at least a year now, OAG has known that its PD 809 contains false representations regarding the breath testing machines. Nevertheless, they continue to introduce the document as evidence in their drunk-driving cases without disclosing the defects in the document.

It is unconscionable to demand that defendants serve mandatory jail time based on a breath test when not every step has been taken to ensure that the quality assurance aspects of the breath-testing program work. Having recently been granted access to the calibration logs for a few of the Intoxilyzer 5000 EN machines used by the Metropolitan Police (“MPD”), I have discovered that many machines are being certified as “calibrated”, when in fact many of their recorded readings do not fall within the manufacturer's specifications. Furthermore, OAG and MPD have done little to ensure that "Alcohol Certified Officers" maintain a current and working understanding of the principles of the impaired driver detection process. During a recent SFST cross-examination of an “alcohol ‘certified’ officer”, I happened to look over at the assistant attorney general, who was prosecuting the case. She had her head between her hands and was staring down at the table. After the “not guilty” verdict was announced, we walked out of the courtroom together, and she mumbled "that officer didn't know what she was doing." When the AAG articulates such an observation, why didn't she move to dismiss the case once she recognized that her officer and witness “didn't know what she was doing"? Could it have something to do with the fact that funding from federal grants is dependent on alcohol convictions? Defense attorneys must step up to the plate to ensure justice for all. As Martin Luther King, Jr. said, "Injustice anywhere is a threat to justice everywhere." If you sleep on your rights, you lose them. It’s time for the defense community to wake up and smell the coffee…let’s hope it’s not too late to regain what we have already lost.

I hope the articles will provide a starting point for discussion and comments. After the initial set of articles is published, I will try to post a new article regularly. Lively discussion and debate are dependant on your thoughts, reactions, ideas and anecdotes. I also encourage you to post your own articles to expand the learning opportunities and stimulate the process. Every now and then, I will include an article on news or developments occurring outside the district. The first one will be on why perhaps we don't have it so bad after all.