Feb 29, 2016 A sampling of recent case successes
DISCLAIMER: CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE, AND DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE UNDERTAKEN BY OUR LAW FIRM. Va. R. Prof. Cond. 7.1(b).
Plenty of my victories are not discussed on my blog. I post some of them as a sampling of what can be achieved by fully pursuing the best possible results in a case through full teamwork with my clients.
Many beneficial case results are best kept quieter, through considering my client’s interest or preferences, discretion in dealing with the particular prosecutor’s office or judge on future similar matters, not muddying any possible appeals processes where the prosecutor has the right to appeal, or a combination of those and other considerations.
Also, the very definition of a victory is not always clearcut. A flat out acquittal is a victory, as usually is a dismissal with prejudice. Sometimes, a conviction on a misdemeanor count and acquittal on related felony counts is a victory where the risk was significant of a felony conviction. Sometimes a partial victory comes with a disposition that significantly reduces the risks to a client’s reputation, career and education prospects, security clearance prospects, visa and immigration application prospects (both for immigration law and procedure inside and outside the United States), and other collateral matters.
Nevertheless, victories help recharge my batteries in fighting for my current clients, and here I briefly mention some recent victories:
– In a jurisdiction where it can be tough to get a marijuana possession negotiation for better than the Trojan horse marijuana 251 disposition (under Va. Code § 18.2-251) or plea to an amended drug paraphernalia disposition, I recently obtained a marijuana possession dismissal after my client did substantial community service for a dismissal. Congratulations to my client for doing his community service homework. Both a marijuana 251 disposition and drug paraphernalia conviction can spell bad news for security clearances, career matters and other collateral matters.
– In a Virginia jurisdiction where a slew of misdemeanor shoplifting defendants agree to a conditional finding of guilt in order to obtain a later dismissal for completed community service, and where security clearance authorities will view such a disposition with a jaundiced eye, as likely will plenty of employers and possibly immigration authorities, I convinced the prosecutor to agree to dismiss my client’s case a few months down the line after completing many more hours of voluntary community service.
– In a jurisdiction where judges seem rarely to amend DWI guilty findings to a more favorable disposition, our judge did just that some time after first finding DWI guilt at a bench trial and deferring entering a final disposition, after I presented the judge with (1) the reasons that a DWI conviction would be a formidable career hurdle and (2) the concerted proactive steps my client took to turn his life around from this DWI case. See Starrs v. Virginia, 287 Va. 1 (2014).
– Through great teamwork with my client, we convinced a judge not to impose one minute above the ninety-day mandatory incarceration minimum for a third Virginia DWI offense within ten years. Some judges could well have given a much harsher sentence, up to the five year maximum.We showed the judge with the benefit of hindsight how my client had stopped consuming alcohol after the arrest date, attended over 100 Alcoholics Anonymous meetings, did around one hundred community service hours, and stayed negative for alcohol on the SCRAM transdermal alcohol-detecting bracelet that was ordered during the several months intervening my client’s guilty plea and sentencing date.
– With two clients for whom avoiding a DWI conviction was much more important than the risk to their driving privileges — and through particular extra defense team effort in one of the cases — I convinced the respective Virginia prosecutors in combined prosecutions for DWI and civil refusal to submit to a breath alcohol test, to amend DWI to reckless with a suspended jail sentence and refusal. Granted, refusal carries one year of no driving, and a commonly-called “wet reckless” disposition (suspended reckless driving sentence, requiring suspended driving with the option for restricted driving, and completion of alcohol education) without any refusal conviction is preferable. However, depending on the jurisdiction and circumstances, prosecutors often will not offer a settlement disposition better than pleading to DWI (with the option to get restricted driving privileges) and dismissing refusal, including when they think they have a good shot at winning the DWI count and where my client took the roadside preliminary breath test (PBT) with a reading significantly over 0.08, despite such PBT results not even being reliable enough to be used at trial. Va. Code § 18.2-267.
Winning breath test refusal trials can be an uphill battle once the judge rules that probable cause existed to arrest for DWI, except where, rather than for an allegation of an outright refusal post-arrest to blow into the breathalyzer machine, a dispute exists about whether the defendant intentionally blew insufficient air into the testing machine or whether the officer or breath test operator intimidated the defendant not to admit any burps (burping requires waiting an additional twenty minutes to restart the test, to reduce the risks of testing for mouth alchohol) under threat of being charged with refusal for burping further. Consequently, when the prosecutor will not offer for my client in a DWI-refusal case to plead guilty to one sole amended count of wet reckless, my client needs to make a calculated risk, with my input, about how much to be exposed to a possible refusal conviction by going to trial.
Perry Mason and Matlock are fictitious characters for a reason. Most criminal defense lawyers have a high number of clients who actually committed a criminal act. That reality does not automatically preclude an outright acquittal or dismissal, but does inform why it is all the more important for me to prepare all my criminal defense cases with the three-pronged approach of preparing for trial, for possible settlement negotiations, and for possible sentencing. When a victory results from the hard work of me and my client, the victory is either sweet when a hands-down victory is achieved, or bittersweet when we avoid worse potential resulting damage in their case.