Northern Virginia DWI defense is not monolithic, says Fairfax DUI lawyer

Northern Virginia DWI (NV DWI) defense is not monolithic. As a Fairfax DUI lawyer, I know this to be true in terms of each Virginia county or city prosecutor’s office and each line prosecutor, who usually has a wide degree of discretion for negotiating case settlements / plea deals. Furthermore, bordering on NV is a county where a prosecutor told me that he was told during the hiring process that amending a DWI case to reckless driving was tantamount to getting fired (which would be overridden the chief commonwealth’s attorney approved such a move). What does this mean for you as a DWI defendant? It means to overcover risk by obtaining the best possible Virginia DUI lawyer for you, to work closely with that attorney, and to be ready to proceed to trial (and to pursue an acquittal) if your negotiation efforts do not pan out (unless you obtain a trial date rescheduling to then continue pursuing a favorable plea deal.)

Must my Northern Virginia DWI defense attorney be based on the county of my prosecution or have been an assistant commonwealth’s attorney there?

Beware any Northern Virginia DWI defense attorney who insists that you need to hire a prosecutor who sought convictions against people in the county where your case is proceeding, or that your attorney needs to be headquartered in that location. First, as a Fairfax DUI lawyer, I know that it is a fallacy that only a former prosecutor is the attorney defend you. Second, judges and prosecutors usually are quick enough studies that your ideal approach is to obtain a lawyer who will fully devote themselves to your defense, and will not hesitate through pride nor otherwise to consult with colleagues familiar with your particular judge or assistant commonwealth’s attorney to obtain any needed insight in pursuing your best defense.

How did I recently obtain a recent wet reckless converted from a DWI and breath test refusal prosecution?

In a recent Northern Virginia DWI case — also charging refusal to submit to breath testing — I convinced the prosecutor to dismiss the refusal count (where a conviction would have involved harsh driving restrictions) in exchange for amending the driving under the influence of alcohol count (under Virginia Code § 18.2-266) to wet reckless, with restricted driving, the Virginia Alcohol Safety Action Program (VASAP), a suspended jail sentence, and a fine. Although I have frequently obtained such a resolution on such original charges, here the prosecutor stated particular concern about my client’s very firm verbal response to being arrested in the first place. At that point, I had a choice between saying that my client’s First Amendment free expression rights should have nothing to do with this, and addressing the prosecutor’s concern about the extent to which alcohol was at play with my client’s behavior. I pointed out that plenty of people display adverse responses to dealing with the police that have nothing to do with alcohol or drugs; that my client had self-rehabilitated by attending a Mothers Against Drunk Driving (MADD) Victim Impact Panel, completing an eight hour Virginia Department Motor of Vehicles (DMV) approved driver improvement program, and had attended several Alcoholics Anonymous (AA) meetings; and that I had already discussed in depth with my client about using a sensible time, place and manner approach in dissenting from police activities, including the option to address such dissent subsequent to being with law enforcement. The packet of material I gave the prosecutor in that negotiation and the next one with him (also a favorable DUI negotiation, where we had a forensic toxicologist / breath testing expert present), turned into legal gifts that the prosecutor seemed to appreciate to the point that when I handed him the Virginia Department of Forensic Science (DFS) data packet that I had obtained and provided to our expert witness, he seemed appreciative to have it ready for later and further review and understanding.)

Virginia assistant commonwealth’s attorneys know that police and civilian witnesses have no hesitation to express their displeasure about a prosecutor’s approach to their superiors

No matter how independent or not a prosecutor wants to be in a Northern Virginia DWI case or any other prosecution, they know that including police officers and alleged victims in the discussion process for deciding how and whether to negotiate a plea deal will reduce headaches for the prosecutor in terms of the number and harshness of their complaints to the prosecutor’s supervisors. At the same time, prosecutors are supposed to act independently from police, alleged victims and civilian witnesses. This means that they should not always be having any of those people present during negotiations. When I sense that any of their presence will be friendly to my client’s interests, I sometimes seek their hearing me and the prosecutor discuss negotiations. When I sense the opposite, I will sometimes suggest to the prosecutor a lawyer-to-lawyer only discussion, particularly when the police officer is one who chomps at the bit in overstating their displeasure about any deal that gets any more favorable than the law enforcement officer (LEO) wants. When the LEO or civilian witness wants a result better than the prosecutor is inclined to agree to, of course I will often seek to enlist that LEO or witness’s assistance, whether to provide more persuasive insight into the situation to the prosecutor, or to make the prosecutor realize that their negotiating approach is unnecessarily harsh.

Always be ready for trial, which makes you come from a position of strength for plea negotiations

When I interviewed with a top-notch trial law firm not long after law school graduation, one of the senior partners underlined the importance for a trial lawyer not only to know how to try a case, but also to negotiate, including to know what the opponent wants. The essential corollary to that great negotiating skills are meaningless if not backed up with the threat of trial readiness. No matter how much you want to settle your case and to avoid the uncertainty of a trial result, I know as a Fairfax criminal lawyer that your Northern Virginia DWI defense lawyer’s ability to obtain a favorable settlement for you is weakened if not backed up by strong trial readiness, not only because defense trial readiness presents the prosecutor with the prospect of obtaining no conviction at all, but also because defense trial readiness means that the prosecutor will need to spend ample time and energy at trial that could be used instead in preparing and handline the assistant commonwealth’s attorney’s other cases.

Fairfax DUI lawyer Jonathan Katz is your warrior pursuing your best defense against the potentially crushing consequences of a Virginia DWI conviction. 30% of Jon Katz’s law practice is devoted to defending against prosecutions for allegedly driving under the influence of alcohol and drugs. Jon is among the small percentage of Virginia DUI defenders who is a member of the essential National College of DUI Defense (NCDD)  or its equivalent, and an even smaller percentage of DWI defense attorneys who have been trained by one of the nation’s top trainers to police in administering standard field sobriety tests (SFSTs / FSTs) to people who have recently consumed alcohol. Call 703-383-1100 to secure your free in-person initial confidential consultation with Jon Katz about your court-pending prosecution. Usually Jon can meet with you within one business day of your calling us.