UNDERDOG - Criminal/DWI Attorney for Fairfax/Northern Virginia/Md. & beyond. - Jon Katz's victories

Winning a DWI trial after demonstrating proof beyond a reasonable doubt as far out of reach.

nospam@example.com (Jon Katz) — Fri, 26 Apr 2013 00:00:00 -0400

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com

Praised be my clients -- amounting to the vast majority of them -- who do not rush to plead guilty in an effort to avoid worse sentencing exposure in the event of a trial loss, than from pleading guilty. By the time my clients and I discuss settlement negotiations, usually a strong relationship of trust has developed between us where they take into serious and strong consideration all advice I give about all aspects of their cases. By my clients not rushing to plead guilty, they help to better assure being satisfied with their decision whether to go to trial or settle the case, and in so doing, they reduce the risk of saying aw sh*t over the outcome of their case.

A decision to plead not guilty or guilty is a serious one that requires deep consideration, including looking at the strengths and weaknesses of both parties' cases, the chance that the other side will be fully or partially ready for presenting a strong and complete case at trial, and any overarching moral or political considerations that make some clients less willing to plead guilty no matter what. First, a criminal defendant must consider his or her goals, including but not limited to goals of avoiding a conviction, lengthy or any incarceration, onerous probation conditions and probation length, limits on driving and other privileges and liberties, violations of pre-existing probation and parole arising from being found guilty, getting convicted of more serious rather than less serious counts in multi-count prosecutions, loss of appeal rights, high litigation fees and expenses, harm to reputation and employability from a conviction, and harm in such other collateral areas as immigration status and convictions requiring registration as a sex offender.

If a client is charged with multiple murders and has been caught on video and by multiple live witnesses, with no foreseeable defense, I would typically urge the client to plead guilty to one count of manslaughter -- a much less serious charge -- if offered that by the prosecutor., and would be ready to invest many hours and even days to convince my client of the wisdome of entering such a plea. With many of my clients, though, the choices are not as stark as that, so I assist my client sin making an informed decision, respect their ultimate decision, and continue doing my best to get them the best possible results on their decision.

I take many cases to trial each year. This past week alone, I have had several litigation victories, one of which I address in today's blog entry. Few trial victories are assured. When my clients ask me to tell them their chances of winning in percentages, I tell them that, rather than using percentages, it is easier for me to tell them if I think they have a strong, moderate, small, slim, or near non-existent chance of winning. However, I can only state that opinion with the information I have at hand. I do not know completely in advance what will happen on the witness stand from the opposing and defense witnesses, nor do I know completely what is on the mind of judges and jurors nor what they will do. Outcomes of trials involve human behavior. We cannot control human behavior, but can do our best to persuade others to be their best selves on behalf of our side and our causes. However, when a client is weighing whether to go to trial or negotiate a settlement, I have an obligation to tell my client what I think are the strengths and weaknesses in material aspects of his or her case.

Continue reading "Winning a DWI trial after demonstrating proof beyond a reasonable doubt as far out of reach. "

Winning a DWI trial by keeping out the preliminary breath test result.

nospam@example.com (Jon Katz) — Thu, 07 Mar 2013 00:00:00 -0500

By Jon Katz, a criminal defense/drug defense/marijuana defense attorney, and DWI/DUI/Drunk Driving defense lawyer advocating in Fairfax County/Northern Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com

"Jon," an able Virginia criminal defense colleague said to me, "sometimes I just concede probable cause to arrest my DWI client, to keep out the preliminary breath test." Why do that? Judges are not allowed at bench trials to consider suppression hearing evidence for the trial/guilt-innocence phase. Then again, even with an experienced judge, how can s/he simply ignore a high PBT (even though the law does not allow the preliminary breath test result "PBT" to be considered for guilt-innocence)? How do we ever get a cat back into the bag, remove a skunk's stink, or reverse a spot of ink dropped into a glass of soy milk?

Never have I advised a client to concede probable cause, unless s/he is pleading guilty or proceeding on a stipulation of facts sufficient to prove guilt. Recently, I blogged about a Virginia DWI trial victory where the police officer did not remember which PBT machine model he used. Today, I will describe another trial victory challenging the PBT, and the legal authorities available for challenging the admission of PBT results.

In my recent trial victory, the police officer testified to stopping my client's car for a moving violation, smelling an odor of alcohol, and observing my client's eyes to be bloodshot and glassy. He testified to my client's putting his foot own twice during the one leg stand test, stepping off the line three times during the walk and turn test and raising his arms a few times, and not fully following the finger-to-nose test.

Then the prosecutor asked about the PBT result. I objected: "Judge, I object. The law prohibits the PBT result from coming into evidence before the prosecutor proves that the PBT machine model used was approved by the state Department of Forensic Science, that the PBT machine was recently properly calibrated and certified for accuracy, and that the officer told my client that he did not have to take the test. Moreover, my client did not freely an voluntarily take the test, because the officer hoodwinked him into doing so by telling him -- as confirmed by the officer's testimony just now -- that the PBT results would not be used in court, which is what the prosecutor is trying to use right now."

The judge nixed my hoodwinked argument, through a fatally flawed reasoning that my hoodwinking argument was precluded by the statutory provision preventing the PBT result from being used for guilt-innocence but not for a trial's probable cause phase.

Interestingly, the officer did not know the model name of the PBT machine he used. Instead, he said that he was using Officer Perennial's PBT machine. I objected to any PBT testimony based on the officer's ignorance of his PBT machine model. The prosecutor at first successfully asked the judge to just let the officer continue to testify, seeing that Officer Perennial was present to confirm his PBT machine model. I replied that Officer Perennial was not at the incident scene, so that the only way that the model could be tied up to Officer Perennial was by both the arresting officer and Officer Perennial identifying this specific machine by something as specific as a serial number.

Multitasking, I reminded the judge that I also had objected to the officer's failure to tell my client was not required to take the PBT test. Perhaps wishing to "move things along", the judge himself asked the officer: "Did you tell the defendant that he was not required to take the PBT test?" Officer: "No." YOW! That answer seemed akin to the ecstasy of going to heaven.

Continue reading "Winning a DWI trial by keeping out the preliminary breath test result. "

Summoning Bill Clinton and Paula Jones on the path to a DWI victory.

nospam@example.com (Jon Katz) — Wed, 13 Feb 2013 00:00:00 -0500

Recently, a Maryland prosecutor left me a voicemail asking my consent to continue our drunk driving trial date because the main police officer was on paternity leave, saying that police department policy was for officers not to testify while on paternity/maternity leave. That struck me as fanciful, at the very least, when considering that such parental leave can take months and thus would threaten speedy trial rights if judges routinely trials around paternity and maternity leave.

Moreover, one knows months in advance that parental leave is around the corner, when considering that even prematurely-born children take several months to be born. I asked the prosecutor how long the officer had been on paternity leave -- to counter his late notice to me the day before trial about paternity leave -- and the prosecutor did not know.

In 1997, a unanimous Supreme Court rejected Bill Clinton's argument to defer the Paula Jones litigation until his presidential term ended. Clinton v. Jones, 580 U.S. 681 (1997). Seeing that Clinton had such weighty matters on his presidential plate, clearly a police officer is no more entitled to have litigation deferred for parental leave than Clinton was for handling affairs of state.

When I raised Clinton v. Jones in arguing against the prosecutor's postponement request, the judge chuckled and asked whether Clinton involved parental leave. Of course Clinton did not involve parental leave. Nevertheless, the judge denied a postponement, noting such factors as our case's advancing age and the prosecutor's prior continuance (over my objection) for the same officer's alleged illness.

Before the prosecutor presented his oral continuance motion to the judge, a colleague opined that many judges are reluctant to deny prosecutorial continuances on drunk driving cases, out of concern for public safety. Hopefully that is not true. Prosecutors, not judges, are solely responsible for being prepared for trial.

After the judge denied the prosecutor's continuance request, the prosecutor proceeded forward that same day with the trial. putting on one sole witness, who says he saw my client in his rearview mirror before being rearended by my client. The prosecutor told the judge in opening that he was not sure whether the witness would have information to prove the drunk driving allegation, and would explore that on the witness stand. Prosecutors should check such matters before starting trial, but I was more than happy to have a DWI acquittal around the corner, rather than to have the prosecutor dismiss the drunk driving charges only to risk my client's being recharged for DWI (but if there was a recharge, I would have argued to dismiss on speedy trial grounds).

Although the judge convicted my client for the non-jailable moving violation of failure to control speed to avoid a collision, he acquitted my client of the drunk driving charges. For my client, that was a great result.

ADDENDUM: As an aside, I briefly worked at the same law firm (I was there nearly two years before becoming my own boss in 1998) with Joe Cammarata, who with Gil Davis (arguing before the Supreme Court) won Clinton v. Jones in the Supreme Court, before withdrawing from the case and at some point being replaced by the Rutherford Institute. Joe, a likeable man, is still at that same law firm (primarily representing injury victims), where television reporters occasionally came to interview him on the Paula Jones case after his representation of her had terminated.

Meeting the pressure to convert a DWI charge to a DREAM Act-friendly result.

nospam@example.com (Jon Katz) — Tue, 12 Feb 2013 00:00:00 -0500

The DREAM Act is still a dream, to bypass immigration law penalties against those who came to the United States as children. Praised be the Obama Administration for having directed the use of prosecutorial discretion (see the June 15, 2012, Homeland Security Department directive, with the U.S. Citizenship and Immigration Services' further interpretation here) to avert adverse immigration consequences against qualifying undocumented people who came here as children. For lack of a better phrase, I will call this Obama Administration directive the DREAM Order. This being but an Executive branch directive, we do not know whether the next president will continue with the DREAM Order.

Recently, a DREAM Order-eligible client hired me for a Virginia drunk driving charge that looked like an uphill battle to win after reviewing the discovery in the case on top of additional investigation. To boot, he also was charged with refusing the breath test, which usually helps in fighting for acquittal on the drunk driving charge, but also means one year of no driving if convicted for refusal, on top of an additional year of no driving for any drunk driving conviction, with eligibility for restricted driving for the DWI conviction but not for the refusal conviction.

Unfortunately for my client, a DWI conviction would have spelled an extinction of my client's eligibility for DREAM Order relief. To try to keep his DREAM Order eligibility, we had our work cut out for us, including:

- Fully preparing the case for a win, as always.

- Having my client enter alcohol education, attend Alcoholics Anonymous meetings, do a driver improvement class, and do community service.

- Obtaining an opinion letter from a qualified immigration lawyer showing that my client was eligible for the DREAM Order, and why a DWI conviction or active jail sentence over 90 days would extinguish my client's DREAM Order eligibility.

Prosecutors often tell me that they are not going to favor a non-United States citizen any more than a citizen in negotiations. I can point out in response that it is best to look at the overall costs and benefits to a defendant in negotiating, rather than to give cookie-cutter settlement offers. Here, for instance, my client was not going to come out any better cost-benefit-wise by pleading guilty to refusal and an amended charge of reckless driving if we added substantial community service and some agreed jail time to it and a higher-than-usual fine, which we did.

I hesitated at first about writing about this DREAM Order-friendly negotiation, lest this prosecutor's office shut the door on obtaining future such negotiations. However, I want my above-described experience to inspire colleagues to seek negotiation benefits for their non-citizen clients that might not otherwise be possible without laying the client's immigration cards on the table (beware prosecutors and cops who might then refer the defendant to the immigration authorities), I have not identified the involved prosecutor's office, and perhaps a limited number of DREAM Order-eligible criminal defendants get arrested for matters that could extinguish their DREAM Order eligibility.

Now a word to non-U.S. citizens; those with security clearances, with military careers, and receiving federal financial aid; and all others who might be harmed collaterally from criminal convictions: I repeatedly see the risk-taking by those who face dire collateral consequences (beyond direct consequences) from criminal lawbreaking behavior and placing themselves in target range of being charged with a crime they did not commit (which is a risk, for instance, when giving a ride to someone transporting contraband). What will it take for you to be more careful about risking such collateral damage? Of course, if you get arrested, it is time to fully defend yourself, which applies similarly to all criminal defendants.

Winning at trial by being in the combat moment.

nospam@example.com (Jon Katz) — Thu, 07 Feb 2013 00:00:00 -0500

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting tirelessly for the best possible results for his clients. http://katzjustice.com .

Each year I take dozens of cases to trial. The exhilaration of going to trial fully prepared is tremendous, tempered by the responsibility over my client's liberty. A huge percentage of civil litigators rarely go to trial, with their clients so often finding settlement negotiations and settlement as preferable to the high stakes of trial. A huge percentage of federal felony cases end in guilty pleas rather than trials. I have been blessed with going to trial all the time in the criminal arena, and with many trials in the civil arena as well.

Recently, I won a bench trial on an unexpected basis -- due to spoliation of my client's incident videotape -- by being entirely in the trial combat moment.

Upon being hired for this Maryland drunk driving case, as always, I filed my appearance with the court and discovery demand. Soon thereafter, the prosecutor's office sent me a form document saying that it had requested a copy of any police video and audio, to get to me after receiving any. Three months thereafter, the prosecutor's office sent me a letter that no video existed. I could have pressed the video issue before the trial date, but my experience and intuition told me to wait until the trial date.

On the trial date, I pointed out to the prosecutor the discrepancy between the police report's saying that the officer told my client that the encounter was being recorded by audio and video, and the prosecutor's office's claim of no video. The prosecutor opined that the officer had a cruiser that night without a functioning video, and said that his office sends its video requests to the police department and relies on the reply that it receives. I asked the officer about the prosecutor's comment, and the officer said he thought his cruiser had video running, but was not sure if he was driving a cruiser that night that had no video. He also said he is not involved with when if ever video footage is erased.

We went to trial an hour later. The prosecutor asked the prosecutor what information he relied upon to prepare his police report, and the officer referenced the VIDEO OF THE INCIDENT. Hot damn! This is the same officer who an hour earlier told me he was not sure after all whether there was a video operating in his cruiser the night he arrested my client. Had I relied on a trial script from two hours ago, I would have missed this gold, which is why trial lawyers need to fully prepare for trial, and then to minimize reliance on too many notes and thoughts during trial other than what is happening right in the moment.

I told the judge that this was the first time I got confirmation that day from the officer that his cruiser's video equipment was recording the incident with my client. I said the only remedy should be to exclude the officer's testimony.

The prosecutor said that the officer's car may not have been equipped with functioning video, but the judge pointed out more than once that the officer had already admitted to a video. When the prosecutor continued arguing along this line, the judge said he saw that the police report (located in the court file as a document presented to the court commissioner in determining the existence of probable cause and in setting pretrial release conditions) said that the officer told my client that the encounter was being recorded by video and audio. (Ordinarily, I would have strenuously objected to the trial judge's reviewing the police report -- because as the trial factfinder at a bench trial the judge should only consider the evidence presented by the parties and admitted into evidence by the judge -- but here saw that this portion of the police report was positively registering with the judge.)

At one point, the prosecutor tried suggesting that this video issue might have been a non-issue had the defendant not continued the trial date for so long (continued because of the need to be out of the country for awhile). I retorted that this had nothing to do with the prosecutor's obligation to avoid evidence spoliation, particularly where my client's predecessor counsel had filed a discovery request less than three months after the incident and where I filed a discovery request immediately upon being hired to replace predecessor counsel.

The judge asked the prosecutor several questions about how often his office is unable to produce a copy of a police cruiser copy, and the prosecutor answered that such circumstances are not common. The judge ruled soon thereafter that his remedy for the missing videotape was to exclude the police officer's testimony.

The prosecutor rested his case. I moved for judgment of acquittal, and the judge ruled my client not guilty.

Consequently, be cautious before rushing to a guilty plea. Sometimes the weapons and ammunition to victory only show themselves during trial.

Winning at trial after a would-be damaging ruling.

nospam@example.com (Jon Katz) — Tue, 29 Jan 2013 00:00:00 -0500

Dare to challenge a judge's evidentiary ruling, and s/he might growl: "I have already ruled, counsel. Move it along." The judge may not be growling only to directly address the lawyer's behavior, but alsoto scare the lawyer's client so much that the client will beg the lawyer not to upset the judge too much.

Give into a judge's wrong and damaging evidentiary ruling, and risk irreparble damage.

With the foregoing in mind, recently I went to trial in a Virginia driving while intoxicate (DWI) case. I anticipated that our victory relied on convincing the judge that probable cause was absent to arrest our client, because failure to suppress seemed nearly inevitable for our client's blood alcohol content test to come into evidence, to be relied on by the judge as accurated, and to lead to a conviction for driving well over the 0.08 legal limit for blood alcohol level.

At the suppression hearing, the prosecutor presented the defense with a mixed bag of damning and redeeming evidence. Damning was my client's one-car accident leading his car to smash into an embankment, very recent alcohol drinking activity, and all six clues for the nystagmus test (with the trial judge incorrectly assessing the HGN results as very bad). Redeeming for us was that the ground was wet from recent rain, my client told the officer his car skidded on the wet road, he did great on the so-called standard field sobriety tests, other than the HGN, and showing no clue other than stepping off the walk and turn line but once. Also helpful was that the judge sustained my objection to the officer's testifying from his notes, leading his testimony to be more watered down against my client than his actual police report. Hallelujah!

Continue reading "Winning at trial after a would-be damaging ruling. "

Getting to yes to eliminate a mandatory minimum sentence.

nospam@example.com (Jon Katz) — Wed, 05 Dec 2012 00:00:00 -0500

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting tirelessly for the best possible results for his clients. http://katzjustice.com.

Negotiations are best pursued by negotiating on and discussing goals rather than positions, as underlined by Fisher and Ury in Getting to Yes. In criminal defense, I negotiate on a position when telling a prosecutor that my client offers a take-it-or-leave-it deal to plead guilty to an amended charge of drug paraphernalia from an original charge of marijuana possession. I negotiate on a goal when telling the prosecutor that my client is flexible about finding a disposition that avoids a marijuana conviction, telling the prosecutor that a marijuana conviction will deep six my client's federal student financial aid.

Negotiations are best pursued from a position of strength. Fully, skillfully and fearlessly preparing a case for trial -- including investing the necessary funds into expert witnesses, serving subpoenas, and other necessary expenses -- is more likely to lead to a settlement than not preparing, and preparing a case to settle makes the case more likely to go to trial.

Recently, I went to a nearby Virginia courthouse where my client's blood draw in his DWI case yielded a 0.20 blood alcohol content at the state lab, and a close confirmation of the result from the independent lab that I use. In Virginia, when the prosecutor proves beyond a reasonable doubt a blood alcohol content of 0.15-0.20 at the time of testing in a DWI case, the judge must impose a sentence of at least five days in jail, with none of that suspended. (The defendant gets a one-day credit against the five days for his or her arrest date.) My client and I were fully prepared for trial battle. I had already subpoenaed the Department of Forensic Science's notations and other data on the blood analysis, was armed with the relevant law and field sobriety testing guidelines, had my trial flowchart, and was fully prepared for any sentencing in the event of a conviction.

Continue reading "Getting to yes to eliminate a mandatory minimum sentence. "

Persuading through storytelling in the moment, unfoldment, and happy endings.

nospam@example.com (Jon Katz) — Tue, 30 Oct 2012 06:00:00 -0400

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting tirelessly for the best possible results for his clients. http://katzjustice.com.

The National Criminal Defense College and the Trial Lawyers College heavily focus on storytelling throughout the trial. Most people organize their thoughts and decisionmaking along storytelling lines. Most law schools try in a huge number of respects to teach students to unlearn their humanity, think logically in all respects, argue both sides of a case with equal persuasion, and leave feelings at the door. How many non-lawyers, though, make decisions as unfeeling technocrats, divorced from humanity, storytelling, and common sense? How many people distrust lawyers by seeing them as hired guns who will argue on behalf of the highest-bidding potential client rather than from their conscience? Consequently, the NCDC and TLC help lawyers get back on the path to being humans first, and becoming better lawyers through becoming better humans, including through persuading through storytelling.

Persuading through storytelling within the circle of the story –- including becoming my client as best I can for a substantial chunk of the process of developing the story -- and in the moment can feel scary at first, when turning away from the law school method of cold logic. With storytelling, the lawyer often has no choice but to fill in the blanks, just as an improvisational musician needs to find how to fill in the notes. Storytelling in the foregoing fashion is like doing trapeze work without a safety net, or skydiving without a backup parachute, but is exhilarating to see how well it works. The persuasive arguments unfold -- a counterpoint to my folding origami peace cranes -- from the honesty and passion of storytelling rather than grasping for argumentative straws through cold logic in a sterile way of thinking.

When a lawyer tells a persuasive story, the decisionmakers (judges, juries, and prosecutors (when negotiating)), have less to push against than when the lawyer is arguing from pure legalese. How can one push against an honest story?

To tell a persuasive story requires the lawyer to be fully absorbed with the story, to practice the story, to be in the moment, and to fully know and care about his client. When a lawyer truly believes in his or her client and the client's cause, s/he is at a better advantage to tell a convincing story. As the amazing pianist Cecil Taylor (whom I have experienced up close and in conversation twice) said: "You practice so you can invent. Discipline? No! The joy of practicing leads you to the celebration of the creation."

With the foregoing backdrop, I recount a successful drug felony sentencing that included substantial storytelling. I do not have any idea how much my presentation had to do with our successful outcome, versus the judge's view of the case and my client's busting his butt in fighting for a successful sentencing. I do know that storytelling at this sentencing helped the persuasive story and argument more naturally and honestly unfold.

My client entered a guilty plea to three hand-to-hand cocaine sales to an undercover police officer. I wracked my brains out trying, without success, to figure out how to win such a case before a jury when lawyers in this jurisdiction are not permitted to argue jury nullification, and where the jury pool in this particular county is not the ideal pool for a jury nullification argument.

The voluntary sentencing guidelines in my client's cocaine sales case called for substantial active incarceration time. The sentencing judge has been known to be one who usually sentences within the guidelines. The amazing SunWolf always reminds me that reality is no obstacle, so I made sentencing arguments geared both to sentencing below the guidelines and to enable my client to do home detention or work release if the sentence were not below the guidelines.

Whenever I defend a client charged with a drug offense, I know I am on the side of the angels, starting with the injustice of the drug wars. More broadly, when I represent any criminal defendant, as long as s/he is not snitching, I know I am on the side of civil liberties. The adrenaline and moral rush that I feel in being on the side that I believe in helps me all the more in summoning my energy, internal best and magic -- as emphasized at the National Criminal Defense College -- in finding the road to victory.

All well and good, but how to convince a judge to keep my client out of jail on three separate cocaine sales? Our road to fighting for a suspended sentence started with countless hours of preparation by my client, who accepted and fully followed my advice to enter and complete drug education, get weekly clean urine drug tests, perform a huge number of community service hours, get some great recommendation letters, and bring some very upstanding friends to court. On top of that, my client already had a compelling story of pulling himself up by his bootstraps to put himself through several semesters of college before his arrest, and to have his dream intact of finishing college and being a further success in the working world. It helped that, aside from my client's guilty plea in this case, his criminal record was otherwise crystal clean and he is otherwise an ordinary person leading an ordinary life, as opposed to a life on the edge that might be perceived by a sentencing judges as more at risk of running afoul of the law.

My client's having given me so many good factors to work with, it was easier for me to weave a compelling story that persuasively unfolded -- the opposite of unraveling -- at sentencing. Storytelling must permeate the entire defense of a trial -- including sentencing if an acquittal is not achieved -- including finding the persuasive story, redefining and reframing it as needed, and refining it along the way, all in close teamwork with the client and with brainstorming with other lawyers and non-lawyers. The persuasive story can and must be incorporated into the defendant's sentencing memorandum filed before the sentencing date, with live argument before the judge requiring being in the moment, reading the judge as best as possible for what the judge's concerns are about sentencing, and addressing those concerns.

For felony cases, it is common for the judge to order a presentence investigation report. The lawyer must thoroughly prepare the client for the presentence investigation interview with the probation officer, particularly in jurisdictions where judges and PSI writers are reluctant to permit the presence of the criminal defense lawyer at such interviews. A default approach is to tell the PSI writer and client in writing and orally that the client will not discuss the incident for which s/he has been convicted, because that is to be addressed directly to the sentencing judge, without the filter of the PSI writer's memory, head, perception, and pen. The lawyer must also be ready to contact the defendant's family members to say that the PSI writer is likely to contact them, to help them anticipate the questions coming in order to minimize their being anything but accurate.

Some PSI writers have a penchant for doing the PSI reports at the last moment. It is essential for criminal defense lawyers to insist on a sufficient time buffer for receiving the PSI report, fully reviewing it with the client, encouraging the PSi writer to correct any incorrect items in the report, and to file exceptions to the report with the court.

Next comes drafting a persuasive sentencing memorandum, one that comes alive with humanizing the client, and that tells a story of how the defendant got to the point in life where s/he committed the crime being sentenced, how the defendant will extricate himself or herself from the factors that caused the crime, and how a happier ending is around the corner if the judge holds probation and a suspended sentence over the defendant's head as a hammer rather than slamming the defendant with substantial incarceration.

To go to sentencing without a sentencing memorandum -- with attached recommendation letters, proof of participation in relevant programs (including drug education programs in drug cases), and other relevant documents -- is at a lawyer's peril and a disservice to the sentencing judge by not giving the judge more time to consider and absorb the material and arguments being presented. Moreover, a judge easily can interrupt oral arguments in court, but cannot interrupt a sentencing memorandum or other legal memoranda.

Continue reading "Persuading through storytelling in the moment, unfoldment, and happy endings."

Winning against draconian penalties for refusing breathalyzer tests.

nospam@example.com (Jon Katz) — Thu, 11 Oct 2012 00:00:00 -0400

Image from National Institute of Standards & Technology.

Responding to a report of a one-car accident, Maryland police officer Weston arrives to find my client in the passenger seat of an otherwise unoccupied car with the engine off and no keys in the ignition.

The officer's report says my client told officer Weston that he was in an accident. The officer performs field sobriety tests, arrests my client, and offers a breath test at the police station, which breath test my client refuses.

The officer seizes my client's driver's license, and gives him a temporary paper license that will expire in 45 days and lead to a 120-day license suspension (for refusing the test, with no accompanying restricted driving privileges) unless my client agrees to drive for a year with the ignition interlock system or timely requests a hearing contesting the suspension.

Continue reading "Winning against draconian penalties for refusing breathalyzer tests. "

Winning by boiling the arguments to their simplest parts.

nospam@example.com (Jon Katz) — Fri, 29 Jun 2012 00:10:00 -0400

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting relentlessly for the best possible results for his clients. http://katzjustice.com

A jury acquittal is spectacular for drama and a lawyer's battle exercise and ego. However, for a defendant, the earlier he or s/he wins the better on the defendant's psyche. In that regard, yesterday I won a trial through the latter approach.

A Maryland police officer stopped my client's car for flashing his highbeams as the officer approached from the opposite side. This led to an arrest for driving under the influence of alcohol. (Lesson 1: Beware liberal highbeaming.)

The highbeams were the sole reason for stopping my client's car. As with all stops, the criminal defense lawyer must dissect the stop with a fine-tooth comb. Here, Maryland statutory law prohibits high-beaming within five hundred feet. (Lesson 2: Know the state's highbeaming laws before highbeaming.) The prosecutor put the officer on the stand. The cop first testified about seeing my client more than five hundred feet from him, but then affirmed that the distance between the two cars was "within five hundred feet" when the high-beaming took place. The officer said that the high-beaming was brief, maybe one to two seconds, and hit his face.

Continue reading "Winning by boiling the arguments to their simplest parts."

Borbon (not bourbon) to the rescue.

nospam@example.com (Jon Katz) — Fri, 04 May 2012 00:00:00 -0400

Image from National Institute of Standards & Technology.

When I attended my first National Asssociation of Criminal Defense Lawyers Meeting in 1991 -- about to transition from corporate law to the Maryland Public Defender's Office three months later -- I wondered why so many highly talented lawyers there practiced drunk driving defense. I figured that more of them would be handing major felony defense.

As it turns out, the vast majority of felony defense is handled by public defender and court-appointed counsel, as is the case with all criminal defense cases. Because driving is so crucial to so many people's livelihoods, a substantial number of people who qualify for indigent defense hire private lawyers. I point that out not out of disrespect to public defender lawyers, but as a reality.

My own extensive defense of those accused of drunk driving goes well beyond economics to some of the cores of civil liberties, including the extensive Fourth Amendment violations caused by police trolling for possible drunk drivers, the shamefulness of a criminal justice system that punishes for blood alcohol levels as tiny as 0.08, and the shamefulness of a criminal justice system that annoints the error-ridden breathalyzer machines.

Related to drunk driving defense in criminal court is representation of drivers at parallel administrative hearings that threaten to remove their driving privileges for long stretches of time.

I recently won such a Maryland administrative hearing that sought to yank my client's driving privileges for four months for allegedly refusing to blow into the Intox EC/IR II breathalyzer machine. As usual, the opposing Motor Vehicle Administration sent no witnesses no lawyer on its behalf, and merely submitted documents mainly consisting of my client's signature agreeing to take the test, police officer's brief recitation of what happened on the scene, and the claim on the officer's report that my client provided insufficient breath to provide a result on the machine.

At my client's administrative hearing, I pointed out to the administrative law judge that nothing in the evidence showed that my client intentionally tried to frustrate the breathalyzer testing process. Also, I pointed out that he could have been offered a blood test, which he was not, when he was unable to blow sufficiently into the machine.

I won the hearing, with the help of Borbon v. MVA, which confirms that the mere inability to provide a sufficient breath is not enough to determine an effective refusal to provide a blood alcohol sample. Borbon v. MVA, 345 Md. 267, 691 A.2d 1328 (1997).

Obtaining a Virginia reckless plea after a 0.11 blood reading, where such a result is uncommon.

nospam@example.com (Jon Katz) — Fri, 30 Mar 2012 00:10:00 -0400

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting relentlessly for the best possible results for his clients. http://katzjustice.com

Image from National Institute of Standards & Technology.

Virginia drunk driving convictions carry harsh results, including one year of no driving except for restricted purposes permitted by the court, mandatory ignition interlock coming your way regardless of the blood alcohol content, and expensive total payments for an attorney, fines and costs, and mandatory alcohol education.

Sometimes a great negotiation result on a Virginia DWI charge is to achieve a wet reckless plea, in the form of converting the drunk driving charge to a reckless driving charge, completing alcohol education, and restricted/suspended driving for up to six months rather than the one year of restricted/suspended driving mandated for drunk driving cases.

Earlier this month, I blogged about a wet reckless on a 0.15 BAC reading that was not offered until I had already begun presenting the testimony of our breathalyzer expert. Earlier this week, I went to court armed for battle on a blood draw reading of a 0.11 BAC. As advised, my client completed alcohol education before trial, and completed a live half-day driver safety class. Beyond that, long before trial I met the statutory deadline to obtain a court order to transfer part of the drawn blood to my designated independent laboratory to test the blood, which determined that the BAC was 0.10, which is lower than the result at Virginia's Department of Forensic Science.

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Obtaining a reckless driving plea in the middle of a drunk driving trial.

nospam@example.com (Jon Katz) — Wed, 07 Mar 2012 00:00:00 -0500

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When a lawyer fully prepares a case to go to trial, it is more likely to settle than when a lawyer prepares the case to settle.

I prepare every case to go to trial, and take many of them to trial. The preparation increases my victories, I believe, whether they be acquittals, partial acquittals, favorable settlements, dismissals and case inactivations, and favorable sentences.

Before I advise a client to plead guilty in a case, I find out whether the prosecutor's witnesses and evidence are available for trial, and do my best to figure out the extent to which the prosecutor and his or her witnesses are otherwise ready and prepare for trial (for instance, whether they have more pressing matters than to want to deal much with my case). This information informs whether to accept or reject the guilty plea offer, or to counteroffer for another settlement, whether it involve a guilty plea or not. Similarly, were I a prosecutor, I would want to see the extent to which my opponent is battle-ready, to inform me how to proceed with settlement negotiations.

Criminal case negotiations sometimes involve brinksmanship, seeing who will blink first and sometimes not seeing a favorable plea deal until the eve or morning of a major felony trial. For misdemeanors, it is common in the Virginia and Maryland courts where I usually practice, with some exceptions, for no plea negotiations to take place until the day of trial.

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Winning a DWI trial after keeping out the breath test result.

nospam@example.com (Jon Katz) — Fri, 17 Feb 2012 00:00:00 -0500

If given a choice between having my client's drunk driving case prosecuted in Virginia or Maryland, ordinarily I would choose Maryland. In the Maryland counties where I practice most often, including Montgomery, Prince George's, and Howard, ordinarily, absent such unusual circumstances as a bad accident or an unusually high blood alcohol content result on the breathalyzer machine, my clients who are convicted of a first-time offense receive a probation before judgment, which avoids points off one's license, and enables to the PBJ recipient to say s/he has not been convicted for the case, because a PBJ is not a conviction.

In Virginia, however, any first-time driving while intoxicated conviction mandates a one-year suspension of one's Virginia driver's license, and a one-year suspension of an out-of-state licensee's Virginia driving privileges, with eligibility to seek limited restricted driving privileges; and completion of alcohol education. Findings of having a blood alcohol content over 0.15 or a second DWI conviction within ten years brings mandatory minimum jail time, and longer waiting periods to start restricted driving privileges. PBJ's are not received for DWI's in Virginia. That is not the situation in Maryland

In Virginia, a conviction for unreasonable refusal to provide a breath or blood test after a DWI probable cause brings one year of suspended driving without restricted privileges, and longer for subsequent convictions. That is not the situation in Maryland

In Virginia, restricted driving is only permitted with the ignition interlock for subsequent convictions within ten years, and for convictions for DWI's with a least a 0.15 BAC. That is not the situation in Maryland, either.

On balance, my Virginia DWI clients more than my Maryland DWI clients feel higher stakes to plead not guilty when charged with subsequent DWI's, BAC's of at least 0.15, and with refusal along wtih the DWI, and when prosecutors offer to strike the alleged BAC, strike the subsequent offender charge, and/or strike the charge of refusal. I advise my Virginia clients risking mandatory minimum jail time or loss of license for refusal to balance the following: chances of winning at trial in District Court and through any de novo trial on appeal; the range or most likely penalties of convicted at trial; and future problems from a conviction.

Recently, a Virginia client took a risk of going to trial, and the risk paid off in an acquittal, as follows.

The police officer stopped my client for allegedly drifting into the adjoining lane. The officer had my client do field sobriety tests, and testified to my client's putting his foot down fourteen times on the one-leg stand, and repeatedly missing heel-to-toe throughout the walk and turn test, as well as taking two steps too many on the walk-and-turn test. The officer testified to a strong odor of alcohol in the car, but my client had a passenger who had been drinking, and the officer never checked the odor of alcohol on my client separately from his passenger.

During my cross examination, the arresting officer admitted he wrote in his criminal complaint that my client put his foot down five times during the one-leg-stand test. On redirect, the only explanation he could provide for the huge gap between putting my client's foot down 14 and 5 times was imprecise paperwork. That insufficient answer was key to my arguing that the officer clearly was relying at trial on his paperwork, based on the number of times he needed to refer back to it during his testimony. Therefore, his paperwork -- which was fraught with imprecision, at least at to his report on the one-leg stand -- had become the officer's erroneous gospel.

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Winning a DWI trial by suppressing the arrest.

nospam@example.com (Jon Katz) — Sun, 12 Feb 2012 00:00:00 -0500

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Sometimes criminal defendants win their cases by getting the evidence suppressed. That is how I won a recent DWI case.

Where I practice, judges, not juries, decide evidentiary issues over suppressing stops, searches, seizures, arrests and statements to the police, although juries may be instructed to determine whether the statements to the police were made freely and voluntarily. I recently won a Virginia drunk driving trial at the suppression motion hearing stage, as follows: The arresting officer testified that my client was stopped after driving at a high rate of speed apparently over the speed limit. The officer testified that my client was blasting his music, was not immediately orally responsive to the officer, and was soft spoken. The officer testified that my client lives and is licensed to drive in Maryland, and further testified that my client refused to do field sobriety tests.

On cross examination, I confirmed that the police officer only started policing the same year as the arrest. That precluded lending any special reliance on the police officer's testimony. The officer also agreed with me that the officer offer for my client to do field sobriety tests, but did not tell my client which tests she wanted my client to take (e.g. horizontal gaze nystagmus; one-leg stand; walk and turn, or other tests.) The judge questioned whether I was helping the defense by asking whether the officer had specified the field sobriety tests she planned to administer. I took that as a good clue for the defense.

The prosecutor rested his case for the suppression motion. In orally arguing to suppress my client's arrest, I pointed out to the judge that my client's refusal to do any field sobriety tests was no indication of consciousness of guilt, and in harmony with the caselaw in my client's native Maryland, that puts Marylanders on notice that field sobriety tests are searches whose refusal is not even admissible in evidence in Maryland, whereas Virginia's caselaw is significantly different from Maryland's on that point. The judge indicated that refusal to do field sobriety tests would not sway him against my client.

Consequently, in further arguing to suppress my client's arrest -- in order to keep out of evidence the Intox EC/IR II/breathalyzer test results -- I pointed out that my client's loud radio was a sign of the times, and the judge agreed. I also argued that the loud music could have accounted for my client's slow response to the officer after being stopped. I suggested that my client's quiet speaking voice was probably from submitting to the officer's authority, and no type of admission, nor anything worse. I argued that the totality of circumstances did not justify an arrest of my client, despite testimony about such matters as my client's driving behavior, his statements about his drinking behavior that night, and behavior after being stopped by the police.

The judge found no probable cause to arrest my client, so entered an acquittal.

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