Overcoming a Virginia DWI plea negotiation impasse takes trial readiness and perseverance, says Fairfax DUI lawyer

Overcoming any plea negotiation impasse requires being constantly trial ready and persevering with settlement talks. As a Fairfax DUI lawyer, I experienced a settlement breakthrough to a reckless driving disposition — under Virginia Code § 46.2-852 — by following that approach and by making clear to my client at all times that a reckless driving plea deal was not guaranteed but was worth pursuing. In this instance, police stopped my client’s car for allegedly reckless and speeding driving in a residential complex parking lot, followed by such alleged indicators of impairment by alcohol and/or drugs as glassy and bloodshot eyes, strong odor of alcohol and marijuana on my client, visible smoke in the driver’s compartment of the car, and slurred and slow speech. My client refused the police request to engage in field sobriety tests (FSTs). The police charged my client with violating Virginia’s DUI (Virginia Code § 18.2-266, breath test refusal, reckless driving, and unlicensed driving laws, Unfortunately, the foregoing allegations and other alleged behavior may have led the trial judge to determine that probable cause existed to arrest my client for violating the Virginia DUI law. Jones v. Commonwealth of Virginia, 279 Va. 52, 59-60 (2010). (However, Jones does not set any specific sets of behavior as a safe harbor to arrest for DUI, because police need probable cause under the Constitution’s Fourth Amendment to arrest, and that requires considering the totality of the circumstances, including countervailing circumstances to the suspect’s benefit. Maryland v. Pringle, 540 U.S. 366, 371 (2003); Dodd v. Commonwealth of Virginia, 50 Va.App. 301, 314 (2007).) Post-arrest, the police obtained a search warrant to draw my client’s blood, which yielded a 0.12 blood alcohol content ( BAC ) analysis by the Virginia Department of Forensic Science (DFS). 

Opening a seemingly intransigent prosecutor’s ears to overcoming a Virginia DUI negotiating impasse

In my above-referenced case as a Fairfax DUI lawyer, the prosecutor resolutely extended the same plea offer (dismissing all counts but the DWI charge, with a “standard” (in his county) DUI sentence involving 30 days in jail all suspended, a fine of $500 suspending $250, and by operation of law completing the Virginia Alcohol Safety Action Program (VASAP) and (also by operation of law) being suspended from driving for a year (with the option to apply for restricted driving privileges.) I pointed out to the prosecutor that both sides had bets to hedge about whether the judge would find probable cause I told him “I want to give you a conviction — for agreed terms and convictions — but just not a DWI conviction.” The prosecutor for a long time did not budge. Had he not had any BAC certificate of analysis at that level (0.04 above the 0.08 legal driving limit) and all his necessary witnesses present (the police officer, the phlebotomist who drew my client’s blood at the hospital, and the DFS scientist who analyzed his blood and reached the 0.12 BAC determination), negotiations my have been more favorable earlier on.

Should I get pissed off about unfavorable Virginia plea negotiations?

You have a choice to get pissed off or to keep your eyes on the prize of as much victory at trial if your case does not settle, and to keep finding ways for overcoming any plea dealing impasse. Here, as always, I came to our trial date fully prepared for trial, and fully prepared to negotiate. I told the prosecutor that I like negotiating cases with the parties’ goals in mind rather than based on the parties’ positions, which are but a means to achieve the parties’ goals. The prosecutor started telling me that he does not believe in amending Virginia DUI charges to reckless driving where he sees his case as provable, but that he sometimes makes an exception if the defendant has career concerns that might be affected by a DUI conviction. I said that my client is in the process of starting a new business, and that a Virginia DUI conviction would not be helpful for his getting business. And then our negotiation breakthrough took place, with the prosecutor’s offering what amounted to a night in jail for amending the DUI charge to reckless driving generally, with a short suspended jail sentence added to that, plus a fine a little less than one half of the maximum $2500 fine, six months of Virginia suspended driving, and completing the VASAP program, together with pleading guilty to unlicensed driving. Granted, I have obtained wet reckless driving plea deals with no jail and other more favorable terms and conditions for DUI prosecutions in another nearby jurisdiction for BACs as high as 0.24. Nonetheless, you are going to run into some prosecutors who will not be as favorable as that with plea negotiations, and, quite frankly, who want the trial experience. (Yes, a key reason why many people become prosecutors is to get substantial trial experience, which is so lacking in a wide range of civil litigation law firms. Having started my criminal defense law career as a public defender lawyer for several years and now my own boss for many years, I have successfully taken hundreds of cases to trial.)

What are some of the keys to overcoming Virginia criminal plea negotiation impasses?

To recap and add, as a Fairfax DUI lawyer, I know that to pursue overcoming criminal plea negotiation impasses, your Virginia criminal lawyer can include the following approaches: Be fully trial ready at all times. Never get angry over settlement negotiation impasses. Avoid getting sucked into mind games and nasty talking by the prosecutor; the goal is to pursue a great result for the criminal defendant client, and not to engage in a tit for tat exercise in the dozens with the assistant commonwealth’s attorney. Reverse roles with the prosecutor (in the criminal defense lawyer’s mind) to see the matter from the prosecutor’s point of view, in order to persuasively and effectively engage with the prosecutor. Be ready to persuade through storytelling (however brief). Listen fully to the prosecutor non-judgmentally at first, while also having insight into what seems sincere, and what seems to be exaggeration, puffery, or downright B.S. Bring the reporting police officer aboard as an ally in negotiations, or at least foster the police officer’s not interfering with settlement negotiations. Be ready to resume settlement negotiations mid-trial. And, very importantly, be relentless and merciless in pursuing as much justice as possible for you in the tandem approach of trial preparation, trial execution, and settlement negotiations.

My Virginia DUI lawyer is not getting me the plea deal I want. Should I replace my attorney?

Even the best Virginia DUI lawyer cannot guarantee overcoming any plea negotiating impasse, nor — in the event of a conviction — your sentencing outcome. Those decisions are respectively in the hands of the assistant commonwealth’s attorney and the judge (capped by the jury’s recommendation in the event of a jury trial that results in a conviction and jury sentencing proceeding.) Your lawyer can give you predictions and estimates about possible settlement and sentencing ranges, and can address such factors as who are the prosecutor, judge and the composition of any jury. Consequently, if you are disappointed about your lawyer’s not yet showing you desirable plea negotiation progress, you probably want to discuss this with your lawyer for  you to determine if your attorney is doing enough to achieve your goals for defending yourself. At the very minimum, you will want to know that your Virginia DWI attorney is at all times trial ready, because you are presumed innocent and are entitled not only to a trial, but to a trial that is effectively defended by your attorney. The Supreme Court sets too low a bar for that effectiveness definition under the Constitution’s Sixth Amendment, and I pursue great results that far exceed my Constitutional obligations as your Virginia DUI attorney.

Fairfax DUI lawyer Jonathan Katz is fully invested in obtaining the most justice and the best possible result for you when prosecuted for allegedly violating the Virginia DUI, felony or misdemeanor laws. You will know that to be true by the time you finish your free in-perso confidential consultation with Jon Katz about your court-pending case. Call 703-383-1100 to secure your meeting with Jon.