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A prosecutor misguidedly dissents from my pre-emptively filing an objection

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"Overcover risk," admonished my last boss, prior to my becoming my own boss in 1998. Among other things, meet court deadlines well in advance, send a confirming letter to an opposing lawyer close in time to his or her agreeing to a critically beneficial point, and never rely on a judge to extend a deadline or court date to be better prepared. Prepare, prepare, prepare. I already knew all of this, but learned the very phrase "OVERCOVER RISK" from him.

Repeatedly, I face opposing counsel who dance on the opposite edge of overcovering risk, including failing to secure a critical expert witness before trial for no reason other than an overworked opponent, failing to show for a hearing scheduled by the lawyer on a motion to narrow my lawsuit, filing a second motion to extend the briefing deadline on the very day the brief is due, and failing to subpoena critical witnesses. A stitch in time saves nine, as well as lost sleep.

Even the most prosecutorially-oriented judges are going to draw the line on how unprepared they will let a prosecutor get, particularly when the defense shows that s/he is fully prepared, which offers the judge a chance to move the docket along, rather than to keep the court’s work clogged by yet another trial date continuance.

Recently, I was talking with a prosecutor about my client’s Virginia drunk driving case, and the prosecutor spiritedly took exception to my having filed a preemptive objection ("Objection") to the introduction of my client’s certificate of analysis showing his blood alcohol content that registered on the breathalyzer machine. I saw no logic to such a complaint — whether genuine or an attempt to throw me off. I smiled and told the prosecutor that I serve my clients well by immediately filing an objection to the certificate of analysis, lest I become a victim of a late delivery from the U.S. Postal Service of the prosecutor’s notice ("Notice") of intention to introduce the certificate of analysis without witnesses. The time window to file such an objection is a mere fourteen days from the date the prosecutor files the Notice, Va. Code. § 19.2-187.1, which means that I receive the Notice less than fourteen days before my deadline to file an objection — when giving time for mail delivery and the possibility of mailing by the prosecutor’s office the day after the filing date of the Notice, unless the prosecutor faxes me the Notice — and I then need to allow for a time lag for my mailed Opposition to reach the court unless my staff or I hand-file the Opposition.

Once I receive the prosecutor’s Notice, I immediately file a new Objection. If I do not receive a timely date-stamped court copy on my Objection, I assure that the Objection is re-filed timely whether by mail or hand-filing. Routinely, I obtain court date-stamps on copies of all my court filings. More than once, I have had a judge say that s/he does not see a particular court filing by me. Without skipping a beat, I pull out the date-stamped filing and show it to the judge, thus removing risk to the defense. Routinely, I obtain proof of delivering copies of court filings to prosecutors by getting date stamps from their offices when my filing are hand delivered to them, and by faxing or emailing court filings on top of any requirement to mail or hand deliver such filings to prosecutors. That can be a pain, but is so very worth it when even the most upstanding prosecutor tells me s/he does not see a copy of one of my material court filings, and I produce the proof of delivery to the prosecutor.

I have won two DWI trials by keeping out certificates of analysis, one where the trial judge agreed with me that the certificate was inadmissible without at least a sworn statement from the Virginia Department of Forensic Sciences, and the other where the judge found guilt of reckless driving instead of DWI, when the prosecutor did not bother introducing the certificate (nor a breath technician) after I had timely filed an objection to the certificate of analysis.

Not long after the Virginia law instituted the above-referenced fourteen-day rule to object to a certificate of analysis, I watched in disappointment as a trial judge denied a criminal defense lawyer’s request to extend the deadline to file an objection to the certificate of analysis, where the predecessor lawyer had missed the deadline. The judge said that he would give some leeway to an unrepresented defendant for missing the deadline, but not to a lawyer. The judge said he would not second-guess the predecessor lawyer’s not filing the Objection, and left room that not filing the objection may have been strategic. There is no strategic benefit to not filing the objection.

Overcover risk. Always.