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Merging DUI and DWI per se

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The jurisdictions where I practice criminalize both drunk driving (DUI) and driving with a blood alcohol content over 0.08 (DWI). If a defendant is convicted of both, the defense lawyer should be ready to ask the judge to merge the two convictions, or, in the alternative, the two sentences.

In Virginia, it is already understood that only one conviction can arise from a guilty finding for drunk driving and driving with a 0.08 BAC. U.S. v. Hornada, at n. 1 (E.D. Va., Sept. 26, 1997) (Poretz, M.J.) (unpub’d).

In Maryland?s, the intermediate appellate court recently ruled that DUI and DWI do not merge as convictions, but do merge for sentencing. Turner v. State, 181 Md. App. 477 (2008),

In the District of Columbia, I have not yet had a client convicted both for DUI and DWI, so have not needed to argue merger there. However, the reasoning of the foregoing Maryland Turner opinion should support merging a DUI and DWI sentence, at the very least.

In federal court, the DUI cases with which I deal most frequently are for prosecutions under the U.S. National Park regulations, since the National Parks include the George Washington Parkway, Baltimore WashingtonParkway, and the Clara Barton Parkway. A particularly strong argument can be made in the Eastern District of Virginia federal court for merging a DUI and DWI conviction under Park Police regulations, based on the following opinions. The Park Police regulations criminalize DUI under 36 C.F.R § 4.23(a)(1), and DWI under 36 C.F.R. § 4.23(a)(2). E.D. Va. Magistrate Judge Poretz (Ret.)  and E.D. Va. Judge Cacheris already have accepted that convictions under the National Park regulations for DUI and DWI merge. U.S. v. Hornada, U.S. Dist. Ct. No. TVN No. P2125951-54; U.S. v. Graham, 2006 U.S. Dist. LEXIS 40622 (E.D. Va. June 19, 2006) (unpub’d) (approvingly citing U.S. v. Hornada), aff’d, 234 Fed. Appx. 136, 2007 U.S. App. LEXIS 17573 (4th Cir. Va. 2007) (unpub’d).

U.S. v. Hornada carries even greater persuasiveness in the Eastern District of Virginia based on footnote 1, which says that principles of comity encourage such a merger result, where Virginia state DWI law would not allow separate offenses for DWI and DWI per se. Hornada at n. 1. Jon Katz

ADDENDUM: Thanks to a fellow criminal defense attorney for forwarding me the foregoing Hornada opinion. It is unfortunate that per se DWI laws exist in the first place to even be having the foregoing discussion.