Fairfax prosecutions — How to achieve great negotiations away from DUI and other serious charges

Fairfax prosecutions for jailable offenses — as with prosecutions anywhere — call for obtaining the right criminal defense attorney for you, and to work closely with that attorney. As a Fairfax criminal lawyer, I repeatedly tell my clients that the outcome of their case is never assured, but that busting out butts for a great result enhance our chances of obtaining victory in court. Today’s article includes a focus on pursuing victory in the Fairfax County courthouse in part because each courthouse is unique for criminal defense, while also having similarities among them. More specifically, I address here obtaining a great two-count reckless driving negotiated result, where the case originated with a charge of DUI with a 0.14 blood alcohol concentration (BAC) and reckless driving generally, plus some traffic infraction charges.

Fairfax prosecutions need to be addressed by addressing the specific case at hand, and not in a cookbook fashion

Too many colleagues over time have warned me about certain negotiated victories or other courthouse successes being in the category of “It can’t be done” or “You’re wasting your time” only for me to get it done. I say that not to exult in defending against Fairfax prosecutions and all prosecutions, but to say that criminal defense needs to balance a realistic view of possible outcomes when dealing with case negotiations, combined with pursuing golden and platinum results at trial and with case negotiations. In my recent negotiated result of two reckless driving convictions from a 0.14 BAC DUI charge and a reckless driving charge, I was under no delusion that we would achieve that result and, as always, came to court fully prepared for trial. At the same time, I advised my client to pursue an uphill battle of a successful negotiated settlement by attending several Alcoholics Anonymous-type meetings (to show a commitment to being responsible with alcohol rather than this being any admission of having an alcohol program), obtaining an alcohol evaluation from an alcohol treatment program (his evaluation showed him to be but a social drinker), completing an online Virginia DMV-approved driver improvement class, and completing an online two-hour Mothers Against Drunk Driving (MADD) Victim Impact Panel class. My client did all of that, which is akin to self-imposed probation conditions before the case even resolves in court.

No is not always a final no in criminal defense negotiations

At first, the prosecutor flat out said no to any negotiation that did not include a Virginia DUI conviction to this Fairfax DWI client. Nonetheless, I invested the time to talking with the prosecutor about the goals that motivated his negotiating approach, and added the police officer to the discussion, including eliciting the officer’s confirmation that my client had been nice to him. (My view is that nobody is obligated to be nice, rather than diplomatic and not uncouth with a police officer, but that when my client is nice, that may benefit him or her with any case settlement negotiations and with any sentencing.) Ultimately, the prosecutor amended his offer to result in two reckless driving convictions (with no DUI conviction), a night in jail, substantial suspended jail time, completing the VASAP alcohol education program, a modest fine (with a substantial suspended fine as well), and six months of suspended driving driving with no prosecutorial objection to the ignition interlock device (IID) being the only condition to driving. That settlement was a major achievement among my fighting Fairfax prosecutions, backed up by my being fully ready to proceed to trial had the case not settled.

Convincing the judge to accept a negotiated sentence

Virginia judges have no obligation to accept a negotiated sentence. In Fairfax prosecutions that result in a wet reckless disposition from a DUI prosecution, some judges are reluctant to agree to an unopposed request for the IID / ignition interlock device to be the only condition of restricted driving (some judges call this otherwise unrestricted restricted driving), even when the prosecutor does not oppose such a driving limit, instead limiting the available categories of driving and sometimes still adding the IID, perhaps sometimes viewing the conversion from DUI to reckless as a big enough break in the first place. With suspended driving not being required by the Virginia reckless driving statute, the latter state of affairs is a reason often to negotiate for a DUI charge to be converted to a reckless driving result that involves no suspended driving at all, whether or not the prosecutor will so agree.

What happens with Fairfax prosecutions where a refusal disposition results and the judge denies restricted driving after waiting the 30-day statutory delay period?

Speaking of negotiating Fairfax prosecutions for DUI, beware what happens when DWI and refusal are charged and the prosecutor offers to plead guilty or no contest to refusal in exchange for dismissing the DWI charge. Under such circumstances, the law does not allow restricted driving (with the IID) to begin until 30 days after the statutory one year suspended driving period begins. If the judge at a restricted driving license hearing (who in Fairfax will be the judge handling traffic case motions that day, rather than having to be the sentencing judge) denies such relief and if the ten-day deadline to appeal a conviction and sentencing has passed, it is too late to appeal that. What is the solution for the latter situation? First, legislation is needed to permit appealing within ten days after the denial of such relief. Second, the sentencing judge should be asked to mandate in his or her written sentence that restricted driving privileges WILL be granted thirty days after sentencing.

Fairfax prosecutions involve too many opportunities and landmines to defend yourself – Obtain the right lawyer for you

The foregoing discussion highlights the major difference that a right lawyer can mean for you against Fairfax prosecutions. Fairfax criminal lawyer Jonathan Katz has successfully defended thousands of criminal and DUI defendants, and will be delighted to put his criminal defense strengths to work for you. Call 703-383-1100 for your free in-person consultation with Jon Katz about your court-pending case.