Emergency Legislation Results in Tougher Drinking-and-Driving Laws in D.C.

by Jamison Koehler on August 4, 2012

A new D.C. law, which took effect on August 1, 2012, has increased penalties for people convicted of driving while intoxicated (DWI), driving under the influence (DUI) and operating while impaired (OWI).  For example, the penalty for a first-time conviction in a DUI/DWI case has gone up from a maximum fine of $300 and 90 days in jail to a $1,000 fine and 180 days of incarceration.

The new law also increases mandatory penalties for first-time offenders with elevated blood alcohol levels and for repeat offenders.  For example, first-time offenders with a blood alcohol level of at least 0.20 grams per 100 milliliters of blood or per 210 liters of breath will be sentenced to a 10-day mandatory-minimum term of incarceration, up from 5 days under the old law.  The mandatory minimum for people convicted of a second offense within a 15-year period has done up from a $1,000 fine and 5 day term of imprisonment to a $2,500 fine and 10 day period of incarceration.  First-time offenders proven to have a Schedule I chemical or controlled substance (e.g, LSD and certain opiates) in their system will be subject to a mandatory-minimum term of incarceration of 15 days.

The new law also seeks to put D.C.’s troubled drinking-and-driving program back on track, effective October 1, 2012, through a new “Alcohol Testing Program.” The law includes provisions for training and certifying D.C. law enforcement personnel in the operation of breath test instruments.  It assigns responsibility for ensuring the accuracy of blood and urine testing to the D.C. Office of the Chief Medical Examiner (CME).

A lesser noticed provision of the new law allows an official copy of the results of any blood, urine, or breath test to be admitted at trial as substantive evidence against the suspect without the presence or testimony of the technician or police officer who administered the test.  This is based on the requirement that, in the case of a breath test, the administering official certifies that the test was conducted in accordance with the manufacturer’s specifications in the case of breath tests or, in the case of blood or urine tests, that the test of the specimen is certified to be accurate by the CME’s chief toxicologist.  The suspect may compel the attendance and testimony of the technician or police officer by stating, in writing, the reasons why the accuracy of the test result is in issue and by requesting, also in writing, at least 15 days in advance of the proceeding that such official appear at the proceeding.   The suspect has to be informed of this requirement at the time such person is charged.  A failure to give time and proper notice after being so informed will constitute a waiver of this right.

Finally, the new law sets a blood alcohol limit of 0.04% for commercial vehicle operators; imposes a mandatory-minimum term of incarceration of five days for offenders with a minor in the car; sets out new procedures for impounding the car of a person arrested for drinking-and-driving; and authorizes the Office of the Attorney General to charge for admission into a diversion program.

5 Comments on “Emergency Legislation Results in Tougher Drinking-and-Driving Laws in D.C.

  1. That “lesser known provision” treads rather heavily on the Sixth Amendment and raises serious issues even in light of the approval in Melendez-Diaz of “the simplest” notice-and-demand rules. I trust you folks are getting ready to challenge the hell out of it.

  2. Jeff:

    I say “lesser known provision” because, of all the press and blog accounts I have seen on the new law, not one mentioned this.

    I don’t know how they do things in Ohio and Connecticut but the constitutionality of the “notice and demand” statute in Virginia has been upheld. The thinking, I guess, is that you do have the ability to confront your accuser so long as you assert this right. Whether an inadvertent waiver of this right is knowing and intelligent, however, might be a different matter.

    I tried to do a Bullcoming/Melendez-Diaz motion a while back in Virginia. You should have seen the strange look I got. I had expected that kind of reaction from the prosecutor but not from the court.

  3. Every time I see stuff about new, tough DUI laws in another state, I’m surprised by how reasonable the enhanced punishments are in comparison to what we have here in Arizona. But hey, at least we don’t have that crazy notice and demand law…

  4. Matt: Although I don’t know anything about drinking-and-driving laws in Arizona, I can’t imagine it has any more stringent DUI laws than Virginia. When you combine that with other considerations (for example, the fact that you get virtually no pre-trial discovery), Virginia is not a good place to be pulled over for a DWI. And D.C. is slowly moving to bring its laws more into line with other jurisdictions.

  5. I can’t speak to Connecticut, and I don’t know anything about Virginia. Ohio’s notice-and-demand law is simple. In a drug case (and it only applies to drug cases), you have seven days from receipt of the lab report to give written notice that you insist on the analyst’s testimony. That’s it. Nothing about having to explain in advance what you’re troubled about or intending to cross-examine the analyst on. No requirement that you say there’s something questionable about the report. You’re simply allowed to demand the testimony. Which is what the 6th Amendment guarantees.

    You may not win the argument in DC courts. But you damn well ought to be making it. Really, the DC DUI bar should probably organize and plan a coordinated attack.

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