DWI negotiating- Fairfax DUI lawyer turns a no into a yes to obtain reckless driving and thus save the defendant’s career

DWI negotiating is a skill and art — as is everything about criminal defense — that can make a huge difference for a criminal defendant when well executed. As a Fairfax DUI lawyer, I approach plea dealing by first clearing any mental cobwebs or other blockages that might tell me of a low chance of obtaining success through negotiations, which helps me provide the prosecutor / Virginia assistant commonwealth’s attorney an opportunity to perceive the matter with a fresh eye to see how we can overlap our mutual interests into a settlement, before needing to take up the prosecutor’s and court’s time for a trial. I treat my own time as virtually unlimited, leaving the entire day (and night, if necessary) ready for a trial no matter how long it takes. Rare is the prosecutor who goes to court with only one case scheduled for trial, meaning that when a prosecutor settles his or her case with me, s/he then can focus the rest of his or her time on the day’s remaining docket. I, on the other hand, eat up going to trial, especially when I obtain an acquittal. A Virginia DUI lawyer cannot fake the ability and drive to go to trial, which helps drive the engine on the path to successful negotiating outcomes. Today’s article is about how I took this entire approach to save the career of a wonderful man whose tested blood alcohol content (BAC) of 0.10 was above the legal limit but low enough for him possibly not to have noticed any effect of alcohol.

DWI negotiating needs to be permeated with readiness — and better yet, eagerness — to go to trial

Soon after I started college, my interest in diplomacy and settling international conflicts led me to attend a talk by negotiating specialist Roger Fisher, whom emphasized successful negotiating as getting as close to yes for both parties, where goals versus positions are the focus of negotiations. With that, I approached the prosecutor handling the case of my Virginia DUI client whose delivery job was on the line if convicted for DWI, which by law automatically brings twelve months of suspended driving for the first offense, with at least six months of ignition interlock device driving for the first six months of restricted driving, other than if the court makes an exception to not need the interlock device for operating employer-provided vehicles. I laid my cards on the table with this Virginia DWI negotiating by underlining that conviction for driving under the influence of beer, wine or alcohol would spell my client’s job termination. I also provided the prosecutor documentation that my client had completed a Virginia DMV-approved eight-hour driver improvement class, gotten evaluated by an alcohol treatment program with a MAST (Michigan Alcohol Screening Test) score of 4 (which is just one point above the social drinker category, out of a possibly highest score topping over 50), attended multiple Alcoholics meetings, and completed the two hour online Mothers Against Drunk Driving (MADD) Victim Impact Panel.

Does my Virginia DUI lawyer weaken my defensive hand by laying out our strategic cards to the prosecutor during pre-trial plea negotiations?

An excellent civil litigation lawyer colleague has said that he makes no effort for the opponent to see his firepower until he is actually at trial or in a deposition. That approach might be beneficial for the opponent not to prepare for trial more thoroughly, but does not assist criminal defendants with DWI negotiating. Some police and prosecutors have revealed to me that they visit my website and blog, and I surmise many more of them (plus judges and civilian witnesses) than that look me up online to learn of my firepower. A Virginia prosecutor will not be motivated to agree to a defense-friendly settlement if s/he feels no risk from going to trial, whether that risk be substantial time investment, potential for an acquittal, revealing police practices and undercover police names that they prefer not revealing, or any other grounds. In Fairfax District Court and commonly in all other Virginia District Courts, usually no advantage exists to negotiate misdemeanor and DUI cases under Virginia Code § 18.2-266 before the court date, so my Virginia DUI client is not disadvantaged by my revealing to the prosecutor on the trial date the strengths of my case and the weaknesses of the commonwealth’s case. Sometimes I say to the prosecutor in a Virginia DUI case: “I want to give you a conviction, but just not a DUI conviction.”

Letting assistant commonwealth’s attorneys get bent out of shape by the Virginia DUI lawyer not get bent out of shape from prosecutorial shenanigans

Several Virginia prosecutors are such unfeelingly arrogant people that even the nicest Virginia criminal defense lawyer might agree that they are a part of the anatomy from which one defecates. When they see that their efforts to bend defense lawyers out of shape has no effect on the defense attorney, that will at best bend the prosecutor out of shape or at worst neutralize them in DWI negotiating and beyond. All the verbal bluster and swagger in the world will not assist their performance in court and the results they obtain. One of my favorite and early criminal defense law teachers, Steve Rench, is an example of achieving acquittals in court while not letting opposing lawyers’ shenanigans be an obstacle to achieving victory. The prosecutor in today‘s case example is a nice person with whom I am able to fully engage and even joke about political matters, so I talk here about the unfeelingly arrogant prosecutors in that once a Virginia criminal lawyer can transcend the shenanigan acting prosecutors, that defense lawyer is better able to tackle any criminal defense challenge by the horns.

Turning a no into a yes in Virginia DUI court

In today’s Virginia DWI negotiating victory example (converting the matter to reckless driving), the prosecutor started by telling me of his office’s policy ordinarily not break a DWI charge down to reckless driving. However, I already had achieved the opposite several times with his Northern Virginia prosecutor’s office. When I told him that my client’s job was in jeopardy if convicted of DWI, the prosecutor invited me to give my pitch about any weaknesses in the prosecutor’s case. I started by telling the prosecutor that my client’s performance on field sobriety testing (FST’s) was good enough that we might well get the case dismissed for lack of probable cause to arrest. The prosecutor then interrupted me and said let’s just go to trial. I replied: “You put me to the task of telling you all this about my case. I did not do that to simply waste my breath.” And that is when we reached this great deal: A reckless driving conviction, no suspended driving(!), complete the Virginia Alcohol Safety Action Program (VASAP) and pay a high fine. Expensive, yes, but also a great return on my Virginia DUI client’s investment in his defense.

Never give up nor give in. Has this article inspired you to fight, fight, fight for in Virginia DUI or criminal court? Hopefully so. Your road to pursuing your best defense is one phone call away. Call 703-383-1100 for your free in-person initial confidential consultation with Fairfax DUI lawyer Jonathan Katz about your court-pending case. You will leave your first meeting with Jon Katz feeling more informed and confident about your defenses.