DUI/DWI/Driving

In Washington, DC, there are three different forms of the criminal offense typically referred to as “drunk driving.”  All three forms require the prosecution to prove that the defendant “operated” or was in “physical control” of the vehicle.  Where they differ is with respect to the second element of the offense:  impaired driving through intoxication.

Limited to intoxication by alcohol, driving while intoxicated (DWI) potentially carries the most serious penalties depending on the results of a blood, breath or urine test.  If the prosecution can prove operation or physical control and if it can introduce admissible results of a chemical test demonstrating that the driver’s blood alcohol content was over 0.08 grams per deciliter, the burden has been met. Intoxication is assumed, and there is no need to prove that the defendant’s driving was impaired in any way as a result of the intoxication.

Covering both drugs and alcohol, Driving Under the Influence (DUI) is similar to DWI.  The prosecution again needs to prove operation or physical control.  However, without a per se assumption of intoxication through admission of a chemical test, the prosecution is required to prove impaired driving ability as a result of drug or alcohol consumption.

Under the final form of the offense, Operating While Intoxicated (OWI), a person can be found guilty of violating the statute if his or her driving ability is impaired by any amount of alcohol.  While this is an easier case for the prosecution to prove, there are also reduced penalties associated with the offense.

Defense Strategies

First-Time Offenders: There are a number of defense strategies for dealing with a DWI, DUI, or OWI charge.  The first step is to determine whether the person has ever been arrested before on a drinking related charge.  If not, the person should be eligible for a “diversion” program offered in D.C.  Most states have some type of diversion program.  Generally, it means the dropping of criminal charges in exchange for the person’s agreement to pay a fine, perform community service, and/or take an alcohol and highway safety class.  [The Office of the Attorney General in Washington, D.C. is suspending the diversion program for peoplc charged with DWI and DUI effective January 1, 2010.]

Motion to Suppress: If diversion is not an option, the next step — also pre-trial — is to look at the legality of the stop.  In other words, why did the police officer pull over the person to begin with?  The Fourth Amendment of the U.S. Constitution prohibits unreasonable seizures.  A car stop qualifies as such a seizure.  In order for the stop to comply with Constitutional guarantees, therefore, the police officer needs to have had reasonable suspicion or probable cause to believe that a traffic violation or some type of criminal infraction has occurred.

A Motion to Suppress is litigated before the case ever goes to trial.  In a DWI case, defense counsel will typically argue that:  (1) the police officer did not have reasonable suspicion or probable cause to stop the car, (2) without reasonable suspicion or probable cause, the car stop was illegal, and (30 any evidence collected as a result of this illegal stop should not be admissible against the defendant at trial.  This is the “tainted fruit” of the “poisonous tree” argument as spelled out in the famous U.S. Supreme Court case of Wong Sun v. United States.

Defense counsel might also base a Motion to Suppress on violations of other constitutional rights, such as the defendant’s right to counsel or due process.  Say, for example, that the police officer interrogated the defendant while the defendant was in custody without reading the defendant his/her Miranda rights.  Defense counsel could argue that any statements the defendant made in response to this interrogation should not be admissible against the defendant at trial.  Or say that there was some mistake in the way the chemical tests were administered.  Defense counsel could argue that the test results should be suppressed.  Ideally, the defendant’s lawyer will be successful in getting all of the evidence “suppressed.”  In this case, there will be no evidence with which the prosecution can proceed to trial.

Trial: If there is no diversion program or plea bargain and if a Motion to Suppress is either denied or only partially granted, then the defendant faces trial.  Depending on the specific facts of the case, the defendant’s lawyer may challenge either or both elements of the offense.

The prosecution will introduce a witness — usually a police officer or a bystander — to satisfy the first element of operation or physical control.  If the witness did not actually see the defendant driving the car, the prosecution will seek to have the court infer operation or physical control through circumstantial evidence.  Was the car parked in the middle of the street or safely off the street in a legal parking space?  Were there any signs (a warm engine, for example) that the car had recently been driven?  Who else was at the scene?  Who owned the car?  Who had the car keys?

Defense strategy on the second element of the crime — impaired driving as a result of intoxication — will depend on the particular offense charged.  If, under a DWI charge, the prosecution introduces the results of a chemical test, the defendant’s lawyer could challenge the reliability of the test result.  How much time elapsed between the time the defendant was observed operating the vehicle and the time the test was administered?  What type of test was performed?  When was the test equipment last serviced or calibrated?  Did the officer administering the test observe the person hiccup or burp any time before he took the test?  How long did the officer have the defendant under observation?

If no chemical test results are introduced, defense counsel may challenge the prosecution’s case on impaired driving as a result of intoxication.  There are, for example, a number of innocent explanations for behavior suggesting intoxication.

For further information on potential defense strategies in a DWI, DUI, or OWI case, please click here.