Absent police witness converts a Fairfax DUI prosecution to a reckless speeding plea

Absent police witnesses are an occasional phenomenon in Virginia General District Court, which handles adult misdemeanor cases among other matters. However, non-appearance of law enforcement officers in court is limited in frequency by common judicial preference to set trials on law enforcement officers’ (LEO) pre-designated dates on which they are available for court, which are commonly at least one monthly date.  As a Fairfax criminal lawyer, I view such non-appearances through the lens of how that will help obtain my clients’ best defense. Today’s article addresses one instance where the absent LEO contributed to a 0.15 blood alcohol concentration (BAC) Virginia DUI prosecution (prosecuted under Virginia Code § 18.2-266) being settled for an amended charge of reckless speeding under Virginia Code § 46.2-862 (down from the typical reckless driving generally), for a sentence of thirty days of suspended driving (down from the usual six months suspended driving for a wet reckless), thirty days of suspended jail, complete the Virginia Alcohol Safety Action Program, and a modest fine.

Fairfax County General District Court DUI trial dates usually are not set around the breath technician’s reported trial dates

With my case that settled for reckless speeding, the arresting LEO was present for the trial date. but the breath technician was on leave and was an absent police witness, clearly to be back at work within a few months. Fairfax County General District Court DUI trial dates are commonly scheduled around the arresting officer’s posted court dates, but not the dates of the breath testing LEOs. This having been the first trial date, the prosecutor probably would have been granted a continuance for at least two or three months. That is because: “In the Fairfax County General District Court, the first court date on a charge of driving while intoxicated (DWI) will generally be continued and neither the Commonwealth nor the Defense will need to subpoena witnesses for this date.” Fairfax County General District Court Administrative Procedures at 82 (2017). Had such an assistant commonwealth’s attorney continuance request been denied, the court probably would have granted a motion to enter a nolle prosequi / non-prejudicial dismissal permitting a recharge within one year of the alleged incident date.

Should I jump at the prosecutor’s wet reckless driving plea offer on my Virginia DUI trial date due to an absent police witness?

On my client’s absent police witness Fairfax DUI trial date, without knowing whether his essential witnesses were present, the prosecutor offered to amend my client’s five day mandatory minimum Virginia DWI prosecution (if convicted for the charged elevated 0.15 BAC) to a standard first DWI, which means no active jail. After learning that the breath technician was on leave, the prosecutor offered wet reckless. We ultimately settled for reckless speeding (as addressed above), which is beter than reckless generally, including for expungement petition purposes. The prosecutor had some flaws in his case, not all of which I addressed, in order to not alert him to what to improve about his case. The prosecution weaknesses inclu;ded: The LEO did not offer for my client to put his eyeglasses back on after conducting the horizontal gaze nystagmus (HGN) test after already telling the LEO of his bad eyesight, which meant the need to wear glasses to do the walk and turn (WAT) test and one leg stand (OLS) tests. The weather was freezing, to which the LEO admitted. The first LEO to arrive was neither the arresting LEO nor the breath technician, and he is the one who advised my ciient under Virginia Code § 18.2-267, which contains the information that is mandatory to tell a suspect before pre-arrest preliminary breath testing (PBT) results may be considered by the judge. The PBT officer’s bodycam footage was never provided to me in discovery, nor the content of his advice of rights concerning the PBT. If the PBT officer were absent at a trial, I would have argued that his absence amounted to a failure to explain whether he had not detained my client, let alone whether such a detention was with probable cause to do so. The arresting officer told my client he wanted to do field sobriety testing (FSTs), which I was ready to argue violated Hammond v. Commonwealth of Virginia’s characterization of FSTs as voluntary tests. 

Will the judge accept my Virginia criminal settlement agreement?

All your Virginia criminal defense lawyer’s efforts to obtain a favorable plea deal are not completed by reaching the deal you want, but by convincing your judge to accept your deal, which I did with our judge in this absent police witness Fairfax DUI case that resulted with a reckless speeding disposition. It helps — if the judge asks the reason for the deal — for the parties to be able to tell the judge about the weaknesses in the prosecutor’s case and the self improvement steps engaged in by the defendant.

Fairfax criminal lawyer Jonathan Katz relentlessly pursues your best defense against Virginia DUI, felony and misdemeanor prosecutions. A great start to your Virginia criminal defense is to meet with Jon Katz for your free in-person initial strictly confidential consultation about your court-pending prosecution at 703-383-1100, email at Info@KatzJustice.com and text at 571-406-7268.