In Traffic Court Today and Saw Somebody Beat a DUI on a Technicality (Herndon: lawyer, college)

[Bill790]

So, I had the day off today, and decided to go to Fairfax County District Court to observe the traffic court process to gather information for my upcoming traffic court date (speeding ).

I went in the first courtroom, and watched for about an hour and a half, until the judge called a recess. Went to the next courtroom and found a DUI trial in process. They were in the middle of watching the police dashcam video of the field sobriety test.

Defense counsel motioned to dismiss based saying there was no probable cause to administer the breathalyzer. Judge said it was close, but said there was probable cause. The cop believed the subject did poorly on the roadside sobriety test and said he smelled alcohol on the accused. Good enough for the judge.

Defense counsel then motioned to dismiss based on the fact the Commonwealth Attorney was late in sending a copy of the breathalyzer calibration cert (or something like it). Defense counsel cited precedents which held defense counsel had to have the cert 7 days before trial. Defense counsel had documentation showing he'd sent the request Thurs, 17 MAR. CA stated they didn't receive the request until Mon, 21 MAR. Which meant defense counsel didn't receive the cert until Fri, 25 MAR. Trial was today, 28 MAR.

Judge asked to review the precedent, which defense counsel had with him. He even had a copy for the CA. Judge asked the CA to rebut, and she stated it seemed like defense counsel had sent the request at just the right time to....and the Judge finished her statement, "...set you up to fail. And I think that's exactly what he did."

Case was dismissed. But the judge admonished the defendant, saying he got off on a technicality and was the recipient of some very savvy lawyering. The judge said he was worried that the defendant blew a .14, and that he thought the defendant had a problem. He told him to address the problem before I seriously injured or killed somebody. The defendant left the courtroom withOUT a DUI on his record

It was fascinating to watch. And I'm not sure how I feel about it. Young Asian kid, new college graduate. He beat the charge, but he was probably drunker than balls.

What do you think about it?


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[Vacanegro]

Most drunks who are in fatal accidents blow very high BACs and are often repeat offenders.

A young Asian kid pulled in FFC for DUI might not have been a threat to anyone but his mom's Volvo (especially if he was in Herndon) but it's not very PC to say that these days.

[Scratch33]

Originally Posted by Bill790

What do you think about it?


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Did you ask that attorney for a business card?

[Bill790]

Originally Posted by Scratch33

Did you ask that attorney for a business card?

LOL!! Almost! F*****g hell of a lawyer!


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[car54]

Originally Posted by Scratch33

Did you ask that attorney for a business card?

Really!

(But I imagine that attorney will be "adjusting" his/her fee schedule!)

[boyd888]

Virginia has a DUI conviction rate around 90% so yes many people are going to "beat" the charges. I don't know as though I totally believe this, but MADD claims the average drunk driver has done so 80+ times before their first arrest anyway.

Plenty of people also get their first DUI reduced to reckless driving, although .14 is too high for that. Many more people avoid mandatory jail time by having their lawyer beat the BAC result.

To me a much larger issue in the court system is the reduction of 2nd (sometimes 3rd) offenses down to DUI first penalties. For example someone gets their second DUI in four years with a BAC of 0.16, which in VA is ~20 days in jail and three year license suspension, easily reduced to the penalties of a DUI first (no jail/one year license) by their lawyer. These are the people that are most likely to kill someone.

Anyway, given his BAC I'd say he is very likely to get another in 5-10 years, but you can't blame his lawyer for gaming the system that games so many.

[Bigfoot424]

Smart lawyer and I have no issues that he knew how to do his job. We have a few in PWC that were very good at DUI law. I never lost a DUI in my 30 years and I'm not sure I ever saw someone beat one but I'm sure it had to have happened. Officers and CA's have procedures to follow and if we don't there are sometimes consequences.

[snowdenscold]

I'm confused - it seems like the defense attorney could just always just put in the request for the calibration cert about 10 calendar days before trial and thus always receive the results within a week of the trial date and have the same result as above.

Is it up to the CA to then ask for a trial delay upon receipt of the request for the cert? What am I missing here?

[spencgr]

Originally Posted by snowdenscold

I'm confused - it seems like the defense attorney could just always just put in the request for the calibration cert about 10 calendar days before trial and thus always receive the results within a week of the trial date and have the same result as above.

Is it up to the CA to then ask for a trial delay upon receipt of the request for the cert? What am I missing here?

Or maybe the DA is supposed to send over the cert on their own before risking any deadline issue?

[Bill790]

Originally Posted by snowdenscold

I'm confused - it seems like the defense attorney could just always just put in the request for the calibration cert about 10 calendar days before trial and thus always receive the results within a week of the trial date and have the same result as above.

Is it up to the CA to then ask for a trial delay upon receipt of the request for the cert? What am I missing here?

I'm not sure. Obviously defense counsel can't ask for the cert 4 days before, and then claim he didn't have it within 7 days of trial. You would think that there would be a process for dealing with late requests for evidence from defense counsel. If you get the request 9 days before trial, you hand walk the evidence over. I think this one just slipped under the rug. But I didn't get the impression the judge or the commonwealth attorney were familiar with this precedent.

If there wasn't a process in place before, I'll bet there is now.


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