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Achieving a reckless driving settlement during a DWI trial, after panning for gold

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During the year between college and law school, I was a financial auditor at one of the nation’s then-thirty largest banks. We reviewed the bank’s financial activities to assure the bank was adhering to safe and sound financial practices. This was the closest I ever came to being a cop, in that our department looked for efforts by customers to launder cash, counted tellers’ cash drawers for money shortages if they wordlessly did not arrive at work, and counted teller drawers connected to bank robberies. Most of the work, though, was less thrilling and more about protecting the bank’s profitability from poor financial practices and dishonesty by bank employees. The work was heavily detail oriented.

So many criminal defendants actually committed crimes, meaning all the more that the road to victory requires leaving no stone unturned in preparing for and executing criminal defense litigation and trial battle. The detail work of my auditing year naturally flowed into the detail work of my criminal defense practice.

Here is a case in point. Recently, my client opted to go to trial in a Virginia drunk driving case alleging a 0.16 blood alcohol content in my client’s body at the time of breath testing. If convicted, he faced five days mandatory minimum in jail for a BAC of 0.15 or over.

We lost the motion to suppress my client’s arrest. The prosecutor proceeded to ask the breath technician questions in an effort to introduce the 0.16 BAC. I spoke up right away during this afternoon trial: “Judge, I may be able to save everyone a lot of time here.” How can anyone turn their backs on hearing about such an honest and desireable offer to achieve time efficiency?

The judge asked what I had in mind, and I proclaimed that the breath technician had utterly failed to sign any part of my client’s certificate of blood analysis, including the attestation clause, despite the law’s requirement that the technician so attest. Va. Code § 18.2-268.9. I said that this signature omission precluded allowing the certificate of analysis and breath testing results into evidence.

My argument was not an automatic shoe-in. I risked the judge’s allowing the breath technician to testify to the numerical test result without the introduction of the certificate of analysis. I said that such an introduction of the BAC test result was inadmissible, and would be in a vacuum with no reference to the quantitative and qualitative meaning of the numerical result. Also, my client risked the possibility of a DWI conviction even without the introduction of the alleged BAC test result.

The prosecutor and I then reopened negotiations, and, ultimately, and for the first time in this case, the prosecutor offered to convert the DWI charge to reckless driving with four nights in jail. That is not a bad tradeoff to avoid a DWI conviction.

Lesson underlined: In criminal defense, leave no stone unturned. Pan for gold. Review everything with a fine-tooth comb.