Driving under the Influence (DUI) in Washington, D.C.
Driving under the Influence (DUI) cases in Washington, D.C. can be among the most challenging for criminal defense lawyers. They can also be the most rewarding. Although the stakes may not be as high as in a more serious felony case, the issues involved can be far more complex.
The only issue in a robbery or murder case, for example, might be the identity of the perpetrator. Everyone agrees that the crime was committed. The question at trial: Was it the defendant? In the typical DUI case, by contrast, the lawyer will challenge every step of the process: the initial stop, the police officers’ observations, administration of the standardized field sobriety tests, and results from the breath, blood or urine test. There is always plenty to work with – lots of room for the government to make mistakes.
Below is a detailed look at drinking-and-driving law in Washington, D.C. Specifically, what are the elements of the offense for DUI in the District? What is the difference between a DUI, DWI and OWI? What are the maximum penalties? What are the strategies for challenging a prosecution for DUI?
OVERVIEW OF DRINKING-AND-DRIVING LAWS IN D.C.
What is the difference between DUI, DWI, and OWI in D.C.?
Every jurisdiction defines drinking-and-driving cases differently, with the acronym used – DUI, DWI, and OWI — often meaning different things depending on where you are. In Washington, D.C., DUI stands for Driving under the Influence. DWI is short for Driving While Intoxicated. OWI is Operating While Impaired.
What is a DUI in D.C.?
Most drinking-and-driving cases in the District of Columbia are charged as DUIs. There are two elements to this offense. First, the prosecution must prove that the defendant was “operating” or “in physical control” of the vehicle. The defendant does not have to be actually driving the car. Sitting at the wheel with keys in the ignition, for example, could be enough for the court to infer operation or physical control.
Second, the prosecution must prove that the defendant’s ability to operate or control the vehicle was impaired as a result of drug or alcohol intoxication. D.C. Code § 50-2206.11. Specifically, a person is “impaired” when his/her “ability to operate or be in physical control of a vehicle is affected, due to consumption of alcohol or drug or a combination thereof, in a way that can be perceived or noticed.” D.C. Code § 50-2206.01(8).
In Taylor v. District of Columbia, 49 A.3d 1259, 1267 (D.C. 2012), a major case defining the offense in the District, the D.C. Court of Appeals defined “under the influence” as “that level of impairment at which a person is appreciably less able, either mentally or physically or both, to exercise the clear judgment and steady hand” necessary to drive a car safely.
What is a DWI in D.C.?
As with the other two versions of drinking-and-driving offense in the District, the government must prove that the defendant was “operating” or in “physical control” of the vehicle. However, the government does not need to prove that the defendant’s driving ability was impaired in any way. A breath test demonstrating that the defendant’s blood alcohol content was 0.08% of greater would be sufficient to secure a conviction. This is why DWI in the District is known as a per se offense.
What is an OWI in D.C.?
OWI is the easiest of the so-called “drunk driving” offenses for the government to prove. After all, the prosecution only needs to prove that the defendant’s ability to operate a vehicle was impaired in some way. D.C. Code § 50-2206.14. As described in greater detail below, OWI also carries the lightest penalties.
What are the maximum penalties for DUI, DWI and OWI in D.C.?
The maximum penalty for a first time conviction for DUI and DWI is 180 days of incarceration and/or a $1,000 fine. However, if the government can prove through a breath, blood or urine test that the defendant had a blood alcohol concentration (BAC) of 0.20 grams or greater per 100 milliliters of blood or per 210 liters of breath or was at least 0.25 grams per 100 milliliters of urine, the defendant must serve at least 10 days in jail. There is a mandatory 15-day jail term in the case of a test result of above 0.25 grams per 100 milliliters of blood and a 20-day jail-term for a test result above 0.30.
The penalty for a second conviction within a 15-year period is a $2,500 – $5,000 and a sentence of up to a year, with at least 10 days that cannot be suspended. If the defendant’s BAC is 0.25 grams or greater per 100 milliliters of blood during the second arrest, there is at least 15 days of mandatory imprisonment. D.C. Code § 50-2206.13.
The maximum penalty for an OWI conviction is 90 days of incarceration and/or a fine of up to $500. The penalty for an OWI conviction when the person has a prior conviction of drinking-and-driving related offense is incarceration of up to one year and/or a fine of $1,000-2,500, with a mandatory minimum term of 5 days incarceration. There is a 10-day mandatory minimum for a third OWI offense. D.C. Code § 50-2206.15.
Who prosecutes drinking-and-driving cases in D.C.?
Drinking-and-driving cases in D.C. are prosecuted by the Office of the Attorney General (OAG). Led by current Attorney General Karl Racine, this is the prosecutorial arm of the District of Columbia. Most other criminal offenses are handled by the Office of the U.S. Attorney, a federal entity.
Does the government offer diversion programs for first-time offenders?
Recognizing that anyone can make a mistake, the government will typically offer preferential treatment to people who have been arrested for the first time. The most common diversion program in DUI cases is called a Deferred Sentencing Agreement (DSA). According to this agreement, the defendant agrees to plead guilty to the charged offense but sentencing is postponed for a period of time (typically six months to a year) to allow the defendant an opportunity to perform an agreed upon set of conditions. If the defendant satisfies the terms of the agreement, the court allows the defendant to withdraw his/her guilty plea and the government dismisses the case. This means that the defendant is never convicted. If, however, the defendant fails to meet his/her of the agreement, the parties proceed to sentencing.
People interested in a DSA should be aware that the D.C. Department of Motor Vehicles (DMV) considers participation in this agreement to constitute a conviction. (The DMV’s interpretation is contrary to the plain meeting of the statutory definition of conviction.) The DMV will therefore move to suspend the person’s driving privileges in the District for six months.
Will I need a lawyer to defend me in a DUI prosecution in the District of Columbia?
Although you have the right to represent yourself in a criminal case, this is not at all advisable given the tremendous stakes that are involved, including the possible loss of your liberty. The court will also make it extremely difficult for you to do so.
There are many qualified lawyers/attorneys in D.C. who can represent you. Jamison Koehler, for example, has successfully handled hundreds of DUI cases during his career. As a member of the National College for DUI Defense and as a founding member of the American Association of Premier DUI Attorneys, Mr. Koehler is a seasoned trial lawyer who has been certified to administer the Standardized Field Sobriety Test. He has been trained in the administration of the breath test machine used in Washington. Finally, Mr. Koehler is also an appellate lawyer who has litigated DUI cases before the D.C. Court of Appeals. In other words, in addition to his courtroom advocacy skills, he knows DUI law inside and out.
STRATEGIES FOR BEATING A DUI/DWI/OWI CASE IN D.C.
A good criminal defense lawyer will challenge the government’s case with respect to every step of the process.
Challenging the initial stop
Pulling a car over is a seizure for Fourth Amendment purposes. This means that the government must demonstrate reasonable suspicion or probable cause in order to justify the stop. Even if the stop is warranted (through some traffic infraction, for example), the officer may detain the driver and his passengers for only the period of time needed to check the driver’s license and registration and, if necessary, to issue the appropriate citation. A detention beyond this period of time requires additional legal justification. If, for example, the officer notes that the person smells of alcohol or appears to be intoxicated, then the officer may be justified to investigate further. An arrest requires probable cause.
Challenging the Standardized Field Sobriety Tests (SFSTs)
Results from the standardized field sobriety tests (SFSTs) – the horizontal gaze nystagmus (HGN), the walk-and-turn (WAT), and the one-leg-stand (OLS) – should never be admitted at trial. Developed by a small group of researchers who never subjected their work to peer review and who, contrary to every principle of established scientific method, validated their own work, the SFSTs are not based on a scientifically valid methodogy. As a result, any testimony that police officers could offer would not be the “product of reliable principles and methods” as required by law. Moreover, according an aura of false authority to police officers testifying with respect to the administration of the tests will only serve to confuse the trier or fact with respect to the issues at trial.
Challenging the breath/blood/urine test
A blood test provides the most direct – and therefore accurate – measurement of blood alcohol concentration (BAC). However, because police officers are not equipped to perform such an invasive procedure and because results are not obtained immediately, most jurisdictions, including D.C., use breath tests as a surrogate measure for BAC.
Although many of the most egregious problems with breath testing in the District have been rectified, the breath tests still represent a remarkably inaccurate measurement of BAC. This is true even when the tests are administered correctly. For example, the breath test machine used in D.C. requires a breath sample of at least 1500 cubic centimeters (or 1.5 liters) before it can provide a result. Of this amount, the machine measures only 2 cubic centimeters (or 0.002 liters). You need to multiply 0.002 by 105,000 to equal 210. This means that any error in the measurement of ethanol in the 2 cubic centimenter breath sample will be magnified 105,000 times.
One expert on the accuracy of breathalyzers used the analogy of a railroad car full of grain. Can you take a small sample of that grain, test it, and then be confident you know the contents of that railroad car?
The urine test provides the most inaccurate measurement of BAC of all. For example, similar to the presumed blood-to-alveolar air ratio used in breath tests, the accuracy of the urine test is based on certain faulty assumptions. The urine test can also be influenced by the amount of time the urine has remained in the bladder.
FREQUENTLY ASKED QUESTIONS
How have DUI prosecutions in the District of Columbia been affected by the Covid-19 pandemic?
D.C. Superior Court is currently closed to most criminal matters, including trials. Arraignments and initial court dates are now scheduled for October and November 2020.[This webpage was last updated on August 6, 2020.]