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Obtaining a reckless driving plea in the middle of a drunk driving trial

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When a lawyer fully prepares a case to go to trial, it is more likely to settle than when a lawyer prepares the case to settle.

I prepare every case to go to trial, and take many of them to trial. The preparation increases my victories, I believe, whether they be acquittals, partial acquittals, favorable settlements, dismissals and case inactivations, and favorable sentences.

Before I advise a client to plead guilty in a case, I find out whether the prosecutor’s witnesses and evidence are available for trial, and do my best to figure out the extent to which the prosecutor and his or her witnesses are otherwise ready and prepare for trial (for instance, whether they have more pressing matters than to want to deal much with my case). This information informs whether to accept or reject the guilty plea offer, or to counteroffer for another settlement, whether it involve a guilty plea or not. Similarly, were I a prosecutor, I would want to see the extent to which my opponent is battle-ready, to inform me how to proceed with settlement negotiations.

Criminal case negotiations sometimes involve brinksmanship, seeing who will blink first and sometimes not seeing a favorable plea deal until the eve or morning of a major felony trial. For misdemeanors, it is common in the Virginia and Maryland courts where I usually practice, with some exceptions, for no plea negotiations to take place until the day of trial.

In that regard, I came to a recent Virginia driving while intoxicated trial not only battle-ready, but also with an expert in testing the breath and blood for alcohol. My client was charged with having a 0.15 blood alcohol content (BAC), so faced a mandatory five days in jail and requiring the ignition interlock, if convicted of the charge.

Under Wimbish v. Virginia, 51 Va. App. 474, 658 S.E.2d 715 (2008), we were stuck with looking at my client’s BAC at the time of breath testing, and not at the time of driving. That is unfortunate, and unconstitutional in my mind, because the BAC certainly often rises substantially over time, as the alcohol absorbs into the bloodstream. An example of this is when I felt the effects of beer more and more as I ran up a steep and long hill after drinking four beers in two hours. It was a fun experience, and took me by surprise, as my goal was not to feel more effects of the beer by running.

Back to the trial. Even if the breath test results had been ignored — but the judge allowed them into evidence over my Sixth Amendment confrontation clause objections — the prosecutor presented evidence that may well have been strong enough to convict my client, but without a mandatory sentence. The arresting officer testified to my client’s having alcohol odor on his breath, and being uncoordinated in several key respects. The prospects of a complete acquittal were not high.

The judge denied my motions to suppress my client’s arrest and to acquit. I put our breath testing expert on the witness stand, and the judge asked me to present a proffer of his testimony. I said our expert would testify that the margin of error in this case brought the BAC below 0.15. The judge confirmed that he had insufficient confidence in the machine to find anything other than a margin of error bringing the BAC to under 0.15.

I also proffered that the absence of information — in our expert’s hands — on certification of the dry gas standard used as a control mechanism with the Intox EC/IR II breathalyzer machine made the breath test results as a whole suspect. As the judge engaged me in further discussion after I started to ask questions of my expert witness on that point, the prosecutor offered a wet reckless plea, in the form of converting the drunk driving charge to a reckless driving charge, completing alcohol education, and driving restricted for six months rather than the one year of restricted driving mandated for drunk driving cases.

This was an excellent result both for eliminating mandatory jail and the ignition interlock, and also for avoiding a drunk driving conviction. This result was only possible, I believe, by our team having been battle-ready. A well-prepared trial focuses on being trial-ready, negotiating skillfully, and being well prepared for any sentencing.


  1. john iorio on August 11, 2016 at 11:17 pm

    Sounds like trial- ready is the right approach……these days, it seems that most attorneys balk at that, and ‘wimp out” with a cheap settlement…have been studying this for about 5 years.

    • Jon Katz on August 25, 2016 at 9:55 pm

      Tnanks, Jon-

      Always being ready for trial is the way to go.