Dry reckless obtained by Fairfax DUI Lawyer after a 0.17 blood alcohol concentration (BAC) analysis

Dry reckless (DR) dispositions (under Virginia Code § 46.2-852 are not nearly as common as wet reckless (carrying a suspended driving period up to six months (with restricted driving privileges) and mandating completion of VASAP  / Virginia Alcohol Safety Action Program for settling Virginia DWI prosecutions alleging driving under the influence of alcohol or drugs in violation of Virginia Code § 18.2-266. As a Fairfax DUI lawyer, recently obtaining a DR disposition with a 0.17 breath alcohol concentration (BAC) test result (exceeding twice the legal limit) reached well beyond what I expected as the best possible negotiated outcome for my client. Amending a Virginia DWI charge to reckless driving is a preferable negotiated alternative for such benefits as liberty, reputation, non-domestic travel, licensing, and car insurance rate increases. Such a spectacular result was by no means assured when the arresting police officer appeared for Court in this Virginia DWI prosecution without the appearance of the Intox EC/IR II/ breathalyzer operator witness.  This was the first trial date in a county whose Virginia General District Court judges routinely grant a postponement requested on the first trial date.

How can I obtain a dry reckless or wet reckless result in a high BAC Virginia DUI prosecution?

For those who wonder why they should engage in self improvement before their Virginia DUI trial date, this dry reckless victory is an example. When I spoke with the prosecutor on the morning of court, he acknowledged that the arresting police officer was present but that the breath technician was not. (This breath technician is a law enforcement officer (LEO) who routinely appears in court, and would undoubtedly have appeared on a subsequent court date had my case gotten postponed.) I said that “In case the breath technician shows up, here is documentation of my client’s excellent self improvement steps” of an alcohol program evaluation supporting that my client is but a social drinker, an eight hour Virginia DMV-approved driver improvement program, twenty online Alcoholics Anonymous / AA-type meetings and a Mothers Against Drunk Driving two-hour Victim Impact Panel (MADD VIP). I told the prosecutor I will be around.

How does a Virginia DUI lawyer convince an assistant commonwealth’s attorney / prosecutor to settle for DR rather than to get the trial postponed?

After telling my client the status of his case, as I was subsequently chatting in the nearby hallway with a colleague who wears the hats of private lawyer, part-time prosecutor and substitute judge, a deputy sheriff told me the prosecutor wished to speak with me. I stuck my head in the doorway of the prosecutor’s meeting room near the courtroom, and inquired “You rang?” At that moment, the prosecutor told me that the breath technician was still not there (which I knew, as this particular police officer looks strikingly different from any other, so I always notice when he is present) and then offered a dry reckless. Clearly, my client was going to love such an offer. However, when I asked the prosecutor to tell me his proposed terms and conditions for this DR result, the prosecutor said the common terms of a thirty day suspended jail sentence and $500 fine with $250 suspended, but then added three months of suspended driving with restricted driving privileges available. I responded that adding the latter condition made this no longer a DR by a half wet reckless (half by omitting VASAP). The prosecutor told me this was a good deal, but clearly I was going to relate to my client this whole conversation, and my client would have had the same reaction about moving from DR to half wet reckless. We then reached an agreed resolution of replacing suspended driving with fifty hours of community service supervised by the court’s probation office.

How much does self improvement help embolden a prosecutor to offer a defense-favorable plea deal?

I reduced the prosecutor’s and defendant’s agreement to writing, and the prosecutor on that sheet conspicuously wrote that the breath technician was absent and listed all four of the above self improvement steps already taken by my client. Being human, prosecutors do not want unnecessary discomfort, like having a judge grill them on why the prosecutor had agreed to a dry reckless or other disposition so drastically different than my client’s original prosecution for violation the Virginia DUI law with a BAC over twice the legal limit. My client’s having completed these self improvement steps gave a hook for the prosecutor to hand his hat on. (On that note, in a different Northern Virginia county, a senior prosecutor who had long previously practiced in Virginia criminal defense explained his reason for declining to bind the judge to a mutually agreed no-active jail plea for a hand-to-hand cocaine sale to an undercover cop, by saying “I don’t want to get yelled at” by the judge.) Without batting an eyelash, this judge — whom I have appeared before probably over a hundred times over many years — fully granted the parties’ agreed sentence.

Should I decline to enter a Virginia DUI plea agreement if the necessary witnesses against me are not available for court?

This spectacular Virginia dry reckless plea deal was accomplished for the very reason that the breath technician was absent (and with my expectation that any trial date continuance would spell the presence of both the arresting police officer and the breath technician). At the same time, it is vital for your Virginia DUI lawyer to gather intelligence and insight about the extent to which declining a plea deal may result in much worse consequences. Here, this victory was all the sweeter, because we were in a county that in a few weeks will get a new chief prosecutor who may well usher in an approach that is much less favorable for defendants with negotiating such prosecuted cases.

Fairfax DUI lawyer Jonathan Katz knows how vital it is to you to beat your Virginia DWI prosecution as best you can. Jon Katz successfully puts that urgency into effective action again and again. Find out the great work that Jon can do for your defense with your free initial confidential consultation about your court pending prosecution. Call 703-383-1100 to start your defense.