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Looking for “white spaces” in the prosecution’s case
Experienced criminal defense attorneys have taught me to to look for “white spaces” in the government’s case.; that is, to focus on what is NOT there.
What should I do after receiving a hit-and-run letter from D.C. police?
The letter from the Metropolitan Police Department sounds ominous. Your car has been involved in a hit-and-run accident in D.C. You should come in for an interview at a specific time and place.
Leaving After Colliding in D.C. requires proof of mens rea
In Crawford v. D.C., the Court of Appeals confirmed that the Leaving After Colliding statute requires the government to prove mens rea.
I didn’t say, “Simon says”
Q: Officer. You testified on direct that my client was talkative when you first approached his car. A: Yes. As I began speaking with him, he was repeating himself quite a bit, wasn’t really answering my questions, just kept repeating himself. He kept talking and talking and just wasn’t really cooperative at the time that I walked up to the …
The SFSTs Have Never Been Peer Reviewed
Peer review is a critical component of any scientific research. You don’t simply expect people to take your word for it. Instead, you send things out to other experts in your field and you say: I am confident in the results I have received. But have at it. Scientific results must be reproducible, preferably by independent, outside parties. Finally, you …
Double-Counting Police Officer Observations in a DUI Case
In DUI cases in which a suspect refuses to submit to a breath, blood or urine test, judges will typically base a guilty verdict on two different considerations. First, there are the results of the Standardized Field Sobriety Test (SFST). Second, there are the police officer’s observations with respect to the suspect’s appearance and demeanor at the time of the …
Stationhouse Videos in DUI Cases Are Discoverable
And sometimes the D.C. Court of Appeals gets it just right. For years, the Office of the Attorney General in D.C. has argued that stationhouse videos of suspects in DUI cases are not “discoverable”; that is, that they do not need to be preserved and turned over to the defense under D.C. Superior Court Rule of Criminal Procedure 16. Although …
Police Officer as Expert at DMV Hearing
Q: You are certified to administer the standardized field sobriety tests? A: Yes. Q: So you are familiar with the science behind the standardized field sobriety tests? A: Yes. Q: And you are aware that the tests have never been peer-reviewed? A: Um. I was not aware – HEARING EXAMINER: What is the relevance of this? A: That’s – HEARING …
Refreshing Recollection at a DMV Hearing
DEFENSE COUNSEL: Objection. HEARING EXAMINER: Basis? DEFENSE COUNSEL: I would ask that the officer testify from memory and not read from his report. HEARING EXAMINER: Officer, are you testifying from memory or are you using the report to refresh your recollection? OFFICER: I am using the report for recollection. HEARING EXAMINER: Okay. And are you relying solely on the report …
“I Make Over Six Figures A Year. What Am I Doing Here?”
Guest Post by Tyler Wolff* These are the first words that went through my head when the jury found me guilty of my second DUI. The first one was a dangerous mistake: I was young, underage, drinking with a fake ID, and hadn’t consumed much alcohol in my life up to that point. Really, growing up, I didn’t drink much. …
The DUI Defense Lawyers Association: A New Challenge to the NCDD
I am clueless about the politics. But you know this has to be a really, really bad thing for the National College for DUI Defense (NCDD). Justin McShane hinted that something was up at the most recent meeting of the NCDD in New Orleans when he announced that his presentation that day would be his last. At the time I …
DUI Lawyers Get No Respect
I am attending the “Mastering Scientific Evidence” for DUI cases sponsored by the National College for DUI Defense (NCDD) and the Texas Criminal Defense Lawyers Association (TCDLA). New Orleans is a wonderfully decadent city: It is fun to see tourists strolling down Bourbon Street with Mardi Gras beads and a large, fluorescent-colored drink at 10:00 am in the morning. For …
Ready for DUI/DWI Appeals in D.C.
It is amazing to me there aren’t more appellate DUI/DWI decisions in D.C. Yes, a recent case – Taylor v. District of Columbia – dealt with the legal definition of impairment. Beyond that, however, there are few cases in an area of the law that is in urgent need of reform. Take existing case law on the Horizontal Gaze Nystagmus Test. …
No More Weekends in DUI Cases
Always looking out for the best interests of clients, Michael Bruckheim has come up with a creative way for getting around the new requirement in D.C. that mandatory days of incarceration in DUI cases be served back-to-back. According to the new law that took effect in August 2012, second-time DUI offenders who are sentenced to a mandatory-minimum period of incarceration …
DUI Trial Testimony: Basis for Car Stop
Q: Officer, as I understand it, you were parked behind my client at the intersection of 19th and M Streets northwest? A: Yes. Q: And there were two reasons you decided to pull him over? A: Yes. Q: The first reason was that he didn’t pull forward immediately when the light turned green? A: Yes, I was concerned that – …
DUI Trial Transcript: One-Leg Stand
Q: Turning your attention now, Officer, to the one-leg stand. A: Okay. Q: Mr. Jones had you step into the well of the court and demonstrate how you delivered the instructions on the night in question. A: Yes, sir. Q: And, in fact, you were speaking so quickly that the stenographer had to interrupt you. She had to tell you …
DUI Trial Testimony: Horizontal Gaze Nystagmus
BY DEFENSE ATTORNEY Q: Now, officer, turning to the HGN? A: Yes. Q: The horizontal gaze nystagmus? A: Yes. Q: It’s fair to say that you are not an opthamologist? A: That’s right. Q: Or an optometrist? A: No. Q: Or an optician? A: No. I am not. Q. But, according to the government, you are an expert in the …
DUI Trial Testimony: The Car Stop
Q: Officer, you testified on direct that when you first saw my client, he was driving southbound on 7th Street? A: Yes. Q: You were driving northbound? A: Actually I was parked. I was parked facing north. Q: When you first saw my client, he wasn’t speeding, right? A: Not that I’m aware, no. Q: He wasn’t swerving? A: No. …
Classic D.C. Trial Transcript: Key on St. Ledger, Part II
BY MR. KEY: Q: When was the last time this particular machine, the one in Government’s Exhibit Number 4, was actually calibrated? A: You mean auto-cal’d? Are you talking recertified or auto-cal’d? Q: All of them. You tell me when is the last time you calibrated this machine? A: That machine I haven’t calibrated. Q: So, when was the last …
Classic D.C. Trial Transcript: Thomas Key on William St. Ledger, Part I
In 2010, Thomas Key and Bryan Brown almost single-handedly dismantled the Metropolitan Police Department’s DUI program through a series of remarkable revelations about the inadequacies of the program. In 2011, the two defense attorneys set their sights on the program run by U.S. Capitol Police. Here is Thomas Key cross-examining U.S. Capitol Police Officer William St. Ledger on a sign that …
Problems in Measuring a DUI Breath Sample
When my daughter was still a toddler, I was strapping her into the child safety seat of an overheated car when she began to blow small breaths. It took me a moment to figure out what she was doing: Having learned that she could cool down hot liquid by blowing on it, she was using the same principle to try …
The “Stationary Shelter” Doctrine in Maryland DUI Cases
Although I am not even sworn in yet, I think I am going to like Maryland practice. I noticed while studying for the bar that the discovery rules are far more encompassing – and rational — than in any other jurisdiction I have practiced. And then, in reading Lenny Stamm’s Maryland DUI Law, I came upon what Stamm refers to …
On Developing a Trial Persona That Works for You
One of the first things they told us during training at the public defender’s office in Philadelphia was that, although they could help us develop many of the skills we needed to become successful trial lawyers, they could not help us with our trial personas. That was something we had to develop for ourselves. And there was no one-size-fits-all approach. …
D.C. v. Loftus: Operating on a suspended license is strict liability offense
Driving without a license has long been a strict liability criminal offense in D.C. That is, in order to secure a conviction for this offense, the government need only prove that you didn’t have a driver’s license at the time you were driving. It does not need to prove any type of criminal intent or guilty knowledge; in this case, …
Same Standard, Different Penalties for Drinking-and-Driving in DC
The standard for proving operating while impaired and driving under the influence is the same; specifically, impaired driving ability to slightest degree.
Emergency Legislation Results in Tougher Drinking-and-Driving Laws in D.C.
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 …
The “Imaginary Line” in the Walk-and-Turn Test
Q: Now, officer, let me turn to the walk-and-turn test. A: Okay. Q: You testified on direct that Mr. Smith stepped off the line three times. That is, he stepped off the line twice on the way down, and once on the way back. A: Yes. That’s right. Q: And stepping off the line is one of eight clues you …
Trial Transcript: On the Definition of “Stuporous”
DEFENSE ATTORNEY: I noticed that you checked the box for “stuporous” on the police report. OFFICER: Yes sir. Q: You also used the term on direct. A: Yes sir. Q: You obviously thought that this was an important observation. A: Yes. Q: Let me ask you, Officer. When was the last time you used that term in every day conversation? …
Trial Transcript: Initial Observations/Probable Cause to Arrest in DUI Case
Q: You testified that my client stumbled as he got out of the car that night. A: That’s right. Q: What do you mean by “stumbled?” A: I don’t know. He stumbled. Q: Did he fall? A: No. He kind of swayed. And he put his hand on the car for support. Q: This was as he was getting out …
Ignition Interlock To Be Required For All DUI-Restricted Licenses in Virginia
Beginning July 1, 2012, every person who is convicted of a drinking-and-driving offense in Virginia and who wants to drive on a restricted license will be required to install an ignition interlock device on his/her car. Current law applies this requirement only to repeat offenders and to first-time offenders who are convicted of a blood alcohol level of 0.15 or …
I Am Not A Traffic Lawyer. Except When I Am.
When I first went out into private practice in 2009, I was tempted to take on traffic cases. After all, my wife and I may not know many habitual criminals, but we do know lots of people who get in trouble with traffic enforcement: parking tickets, speeding, failure to display proper tags, and so on. Suddenly all these people were …
Complaints, Excuses, and Justifications after a Lost DWI Trial
Before beginning my practice in Virginia, I went over to traffic court in Fairfax County to observe, and was struck by the large number of DWI cases that pled. One piece of blue paper after another was passed up to the judge, with the defendants lining up to accept responsibility for their offense. These guys don’t know how to …
Confrontation Clause Be Damned: D.C. Continues to Use Surrogate Witnesses in DUI Cases
Michael Bruckheim was scheduled to cross-examine Lucas Zarwell, the chief forensic toxicologist in D.C., and a group of DUI lawyers had gathered outside Room 116 yesterday afternoon shortly before 2:00 pm. Zarwell testified before city council last May that urine samples taken by police to test suspected drunk drivers are not reliable enough to accurately measure a person’s blood …
Confronting the Silent Witness — the Breath Test Machine — in a DWI Case
The government vouches for him. He himself doesn’t need to come to court, much less explain the basis for his conclusions. His “testimony,” which is delivered through an interpreter, consists of nothing more than a couple of numbers and some pre-set generic language. There is no opportunity to cross-examine him. And yet the court can send the defendant away …
On the Defendant’s Acceptance of Responsibility at Sentencing
Earlier this week, I caught the tail-end of a DWI trial in which Michael Bruckheim was representing the defendant. Bruckheim had attended portions of my last DWI trial in D.C., and I decided to repay the favor. I wanted to see him cross examine the same police officer who had testified in my case. And, recognizing that everyone has a …
DWI Defense Is Not For Beginners
You would think that Jeff Gamso, as a criminal defense lawyer focusing on death penalty cases, might look down his nose at lawyers handling drunk driving cases. After all, the difference in stakes is enormous. You would be wrong. In the same blog entry in which he vents about listservs, Gamso criticizes the notion, often seen on listservs, that new …
The “Oopsie” Phenomenon and Other Problems with Urine Tests
With the use of breath test machines temporarily suspended in D.C. because of calibration and accuracy problems, people arrested under suspicion of drinking and driving are currently being administered urine tests. Generally considered even less reliable than the breath test as a surrogate measure for blood alcohol concentration, urine tests present at least four different problems for the government. First, …
The “Disappearing Sway” In A DWI/DUI Case
“Swaying while balancing” is one of four “clues” used by a police officer to detect intoxication during the One-Leg-Stand component of the Standardized Field Sobriety Test (SFST). The police officer would require only one other clue to mark the suspect down as having failed this component and arrive at the conclusion that there is a 65% (according to the …
The Blood/Breath Partition Ratio in a DWI Case
The science behind the Intoxilyzer 5000EN and other breath test machines all sounds very impressive. The problem is that the machines are based on certain assumptions about the person being tested. If the assumptions are faulty, so are the results. One of the major assumptions used in breath testing is that there is a correlation of 1 to 2100 between …
The Xeroxing of Arrest Reports in a DWI/DUI Case
With two DUI trials coming up, I will be focusing myself, as well as this blog, on the science and law related to this issue. I am also consulting what I have found to be the best resource I have ever found on DWI/DUI defense: Drunk Driving Defense by Lawrence Taylor and Steven Oberman. Although I have handled hundreds of …
Post-Script On The Guy Who Left His Car On Our Brick Wall
Yesterday I posted about the guy who drove his Lexis onto our brick wall and then left it there. I assumed he had been drinking. I assumed we would never see him again. And, as suggested by another participant at the training here, I assumed the police would soon be getting a call about a stolen car. This led me …
“Every DWI Case Is Defensible”
You often hear criminal defense lawyers who are just starting out say that they will initially handle drinking-and-driving offenses, like DWI or DUI, until they get their feet on the ground. The cases are, they say, straightforward and lucrative. Once they get themselves established, well, then they can move on to more complicated felony cases, like attempted murder, drug distribution, …
On Becoming Certified to Administer the Standardized Field Sobriety Test
There is nothing more gratifying for a criminal defense lawyer than the moment on cross-examination when the prosecution’s key witness begins to sweat. The witness gets that panicked or confused look in the eye and keeps glancing over at the prosecutor as if for help. Uh oh, the look says. This is not going as planned. Defense counsel knows a …