In Traffic Court Today and Saw Somebody Beat a DUI on a Technicality

[kevinm]

Originally Posted by 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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I beat a DUI charge in court in Fairfax County. My lawyer used a "double jeopardy" defense because when arrested, the night magistrate suspends your license on the spot for 5 days. When you return to court a few weeks later, you are in fact being tried again for the same offense. That is double jeopardy. Case dismissed.

Total cost $475 as opposed to $2500+ and other hassles.

[Bigfoot424]

Originally Posted by kevinm

I beat a DUI charge in court in Fairfax County. My lawyer used a "double jeopardy" defense because when arrested, the night magistrate suspends your license on the spot for 5 days. When you return to court a few weeks later, you are in fact being tried again for the same offense. That is double jeopardy. Case dismissed.

Total cost $475 as opposed to $2500+ and other hassles.

I find this hard to believe as this has been tried by lawyers since VA created this administrative license suspension. And I believe it's 7 days but I could be wrong. I'm surprised a judge was dumb enough to allow this to happen. Hopefully you're not proud of yourself.

[gomason]

Originally Posted by Bigfoot424

I find this hard to believe as this has been tried by lawyers since VA created this administrative license suspension. And I believe it's 7 days but I could be wrong. I'm surprised a judge was dumb enough to allow this to happen. Hopefully you're not proud of yourself.

I'm thinking it had to be more complicated than that. Otherwise I would think every lawyer would do the same exact thing.

[kevinm]

Originally Posted by Bigfoot424

I find this hard to believe as this has been tried by lawyers since VA created this administrative license suspension. And I believe it's 7 days but I could be wrong. I'm surprised a judge was dumb enough to allow this to happen. Hopefully you're not proud of yourself.

My case was heard when this opinion was being circulated among the lawyers and was used by many at the time. The case was dismissed before even being heard. I just said "goodbye" to the arresting officer and walked out of the courthouse. This was back in 1995-1997 timeframe so I am hazy on some of the details.

[Bigfoot424]

That was back in its infancy so I can see a judge doing that. Wouldn't happen now.