DWI prosecution deadlines can fuel a win, says Fairfax DUI lawyer

DWI prosecution deadlines — and all Virginia criminal law deadlines — are critical for your lawyer to know. As a Fairfax DUI lawyer, I know that one year from the incident date is the deadline for filing a prosecution for a Virginia misdemeanor DWI charge (and the vast majority are in the misdemeanor category) and most (but not all) other misdemeanors have the same one year statute of limitations under Virginia Code § 19.2-8.  This one year limitation was the source of one of my most recent Virginia DUI victories, in Fairfax County General District Court, where the case had already been continued two times from the first trial date — once pretrial due to my client’s serious illness, once to enable the prosecutor to obtain the presence of the hospital employee who drew my client’s blood and of the Virginia Department of Forensic Science (DFS) scientist who tested the blood, whereby written Fairfax GDC procedure liberally allows both sides a first-time continuance on the first DUI trial date; and, over my objection, a second time because neither the prosecutor nor police officer had gotten a subpoena delivered to the blood draw witness nor a civilian witness to my client’s alleged drinking and driving. What happened on our third trial date? Read on…

How should my Fairfax DUI lawyer handle a prosecutor’s request to reschedule my trial only ten days before my court date?

Ten days before the last trial date in this Fairfax DUI case, a prosecutor emailed me that he would be seeking a trial date continuance because of the DFS scientist’s being on vacation on the trial date. This continuance request was unusual in that this may be the first time I have seen a prosecutor need to seek to reschedule a Fairfax DUI trial to secure the presence of a DFS scientist. As it happened, three days after receiving this email, I bumped into the same scientist in the Fairfax courthouse, and she told me that she had planned her vacation at least a few weeks before. Moreover, she was in the courthouse when the case was continued over my objection. When the prosecutor orally presented his continuance motion to the judge the day before trial (where that was the first hearing date I had available), the judge zeroed in on whether the DFS scientist had been subpoenaed to the next day’s trial date. The prosecutor at first thought so, but I countered that the same morning my assistant had revisited the Court’s scanned file, and found no subpoena for the next day’s trial, but only finding one for the last trial date. It was fun for me to stand there as the prosecutor in vane checked the court’s file to seek a nonexistent witness subpoena. I wrapped up my argument against a continuance by proclaiming that it was outrageous that the prosecutor for the second time had not done enough to set a trial date when its essential witnesses would be present (and its previously two non-present witnesses for the previous trial date only had their subpoenas issued only around two weeks before trial, without an indication in the court’s file whether they had been served their subpoenas (granted, a timelag can take place between when a sheriff’s deputy serves a Virginia subpoena and that the return of service gets to the court file). I also pondered what would have happened had I only informed the court and prosecutor ten days before trial that my client had the previous month decided he would miss his trial in favor of a vacation. The judge denied this continuance request even after the prosecutor told the judge that we were already past the Virginia DWI prosecution deadline, which meant that the prosecutor could not simply ask for a nolle prosequi — non-prejudicial dismissal — to be able to recharge the case. The judge said this case would proceed to the next day for the trial date. What happened on the trial date? Read on…

If my blood analyst or breath technician does not appear at trial, does that assure me an acquittal at my Virginia DUI trial?

The judge’s denial of a trial date continuance was not guaranteed, where the DFS scientist concluded my client’s blood alcohol concentration (BAC) was 0.27 (and our private lab found a BAC over 0.25), risking a mandatory minimum of ten days in jail. Depending on which witnesses the prosecutor still had available for the trial date, the Fairfax commonwealth’s attorney’s office could still have proceeded forward with a trial to seek a Virginia DUI conviction under the general Virginia DUI definition of having drunk enough alcohol to noticeably affect the defendant’s appearance and/or behavior. When I entered the courtroom, the Fairfax prosecutor asked how I would like to proceed, and I said “nolle” for dismiss. A few minutes later, after looking through his case file, the prosecutor moved to enter the case nolle prosequi. I of course did not object, because a nolle with the Virginia DWI prosecution deadline having passed meant the case could never be brought back to court.

Will my Virginia DUI lawyer consent to a weak prosecutorial trial date continuance request in order to massage my attorney’s relationship with the Virginia commonwealth’s attorney’s office, even when my DWI prosecution deadline has passed?

Your Virginia DUI lawyer must defend each client at a time, including with this situation involving the Virginia prosecution deadline. Yes, bridges should not be burned nor harmed when doing any such burning or harming does not help you or any of your attorney’s other clients. Nonetheless, the only correct approach here to the Fairfax prosecutor’s Virginia DWI trial date continuance request was not only to object, but to object persuasively. Congratulations to my client for this permanent victory.

Fairfax DUI lawyer Jonathan Katz relentlessly pursues your best defense against Virginia DWI prosecutions alleging driving under the influence of alcohol and/or drugs in violation of Virginia Code § 18.2-266. Through your initial in-person free confidential consultation with Jon Katz about your court-pending case, you will be more confident and knowledgeable about your defenses and your case. Call 703-383-1100 to secure your meeting with Jon Katz, which we can usually set either the same or next day.