Aug 14, 2020 Achievement through teamwork addressed by Fairfax criminal lawyer
Achievement comes best with lawyer-client teamwork, says Virginia criminal lawyer
Achievement at the highest possible level is the goal against any prosecution. As a Fairfax criminal defense lawyer, I emphasize to my clients the importance of our teamwork in obtaining the best possible results. With my client’s consent, I recount a recent example of the benefits of such teamwork defending against a Virginia DUI prosecution pursued under Va. Code § 18.2-266.
Beware the Virginia sentencing risk for a DUI conviction at a high speed
A police officer stopped my client for allegedly speeding nearly forty miles over the posted speed limit. The officer smelled alcohol on his breath and obtained my client’s consent to perform field sobriety tests. After my client’s arrest, he blew into the Intox EC/IRII breathalyzer machine, yielding a 0.08 blood alcohol content / BAC. The officer charged him with DUI and reckless driving based on speed. In this county, had my client been charged with DUI by itself with a 0.08 BAC test result, he had a good chance at achievement with a plea offer to a reduced charge of reckless driving.
Had my client been charged only with reckless driving at that speed, he had a shot at achievement with several judges to avoid active jail time and a bigger uphill battle to get the charge amended to an infraction, by at least attending a Virginia DMV-approved driving school or another program of at least equivalent quality and rigor. The combination of alcohol and high speed can concern many judges at sentencing.
How to reduce the risk of a Virginia DUI charge combined with reckless driving alleging very high speed
To increase the chance of achievement with case negotiation for better than DWI, and to avoid active jail time for the alleged combination of DWI and high speed, I recommended that my client get his speedometer calibration checked, get three mouth temperature readings according to my written instructions, start an alcohol treatment program (for instance VASAP, as much as I advocate abolishing VASAP), complete a driver improvement class, attend some documented AA meetings (whether live or online), and seek a psychologist’s positive written prognosis of a low risk of committing DUI or reckless driving based on speed in the future. Yes, these self-improvement / self-rehabilitation approaches take time and money. Here they paid off.
The potential payoff of overcovering risk with self improvement by criminal defendants
My client followed my foregoing suggestions for achievement, and added many hours of voluntary community service in the mix. With Covid-19 court date delays, by the time we had our court session, my client had completed all of my foregoing suggested self-improvement steps. I then presented the prosecutor with a shock and awe package of information not only about all the great self-improvement my client had accomplished, but also to show that his speedometer read three miles per hour slower when driving at his alleged speed from the night of arrest, and addressing the expert testimony we would present at our assured continued court date if we had not settled the case that date.
Walking the prosecutor through the expected DUI forensic expert witness testimony
On our road to achivement, I detailed to the prosecutor the expected testimony of our planned breath testing forensic toxicologists expert testimony in the event we did not settle the case that day. Specifically, I showed the prosecutor the Virginia Department of Forensic Science (DFS) Freedom of Information (FOIA) data response, showing that after subtracting the +/- 0.004 margin of uncertainty for BAC readings under 0.15, we were very close to a 0.080. Pushing us below 0.080 was adjusting for my client’s elevated mouth temperature above 35 degrees Celsius, when the Intox EC/IR II breathalyzer machine assumes a mouth temperature of 34 degrees Celsius (even though the predecessor Intoxilyzer 5000 breathalyzer machine checked for mouth temperature) and does not adjust for mouth temperature.
Intox EC/IRII testing in Virginia DUI cases relies on Henry’s Law — defined in 1803 by chemist William Henry — “which states that, at constant temperature, the concentration of gas dissolved in a liquid is proportional to its concentration in the air directly above the liquid.” University of Washington medical school physiology professor Michael P. Hlastala in 1985 “stated the possibility of a 7% increase in breath-alcohol test results” for each degree the testing subject’s body temperature exceeded 34 degrees celsius. Consequently, on the road to achievement with negotiations, I showed the prosecutor how my client’s housemate’s 36 degree Celsius mouth temperature readings — via a digital thermometer — of my client easily brought his adjusted mouth temperature to significantly below the 0.08 legal limit.
Achievement with a much better than a wet reckless
In this and many other Virginia courthouses, a so-called “wet reckless” is the best deal the prosecutor might agree to for a first-time DUI case with a blood alcohol testing result not over 0.08 in the absence of such aggravating factors as a serious car accident or high speed, in the form of a sentence of suspended jail time, completing the VASAP alcohol treatment program, and getting six months of suspended driving with restricted driving privileges. After I presented the prosecutor with the foregoing shock and awe package of documentation and information, I obtained achievement with a plea deal far better than such a wet reckless, in the form of dismissing the reckless speeding charge, pleading no contest to an amended charge from DUI to reckless driving generally, one month of suspended-restricted driving, and a modest fine. Blessedly absent from this plea deal was any active nor suspended jail time nor requirement to attend VASAP.
Achievement with the judge as the final hurdle
Sometimes Virginia judges will not bind themselves to party-agreed sentences, if the judge sees the deal as too lenient, and possibly as an example of insufficiently uniform justice. Our judge was not ready to proceed with this plea deal without hearing the prosecutor’s reasons for agreeing to this deal. Fortunately, all of my client’s great self-improvement efforts enabled those details to roll off the prosecutor’s tongue in answering the judge’s question. The judge ultimately went along with the parties’ deal, but not without telling my client in open court what a benefit he had achieved with this deal, which is fine because the judge effectuated our deal.
Fairfax DUI lawyer Jonathan L. Katz pursues your best defense against felony and misdemeanor prosecutions. Call 703-383-1100 for a free in-person meeting with Jon Katz about your court-pending DWI or criminal case.