Overcovering risk is your only sensible approach to defending in court, says Fairfax DUI lawyer

Overcovering risk (OR) is an essential part of criminal defense. As a Fairfax DUI lawyer, I do that by being fully prepared for trial and all other court dates, by fully preparing my clients for court and all other stages of their defense, and by encouraging clients to engage in relevant self improvement steps to help with settlement negotiations and with any possible sentencing. In recent weeks alone, I have obtained some great negotiated case results with this approach. A case in point of the benefits of OR is my recent success in Northern Virginia in negotiating a wet reckless (with no active jail, and increasing the usual suspended jail sentence and doubling the usual fine of $250) from an elevated blood alcohol concentration (BAC) driving under the influence of alcohol case (prosecuted under Virginia Code §§ 18.2-266 and 18.2-270 from a 0.16 BAC charge (which carried five days mandatory minimum in jail if convicted for a BAC of 0.15 or higher) with a collision with my client’s airbags deploying, and the other driver claiming injury on the scene (whereby many judges will add extra active jail time if concluding that alcohol contributed to the accident).

Is it common to obtain a wet reckless from a 0.16 BAC Virginia DWI prosecution? Fairfax DUI lawyer says no

Absent a strong weakness in the prosecutor’s case, it is uncommon to obtain a reckless driving plea for a Virginia DUI prosecution alleging a BAC of 0.16 or higher. As a Fairfax DUI lawyer, I recognize that from a practical standpoint, it often is easier for a prosecutor to want the fallout to be on a judge or jury for acquitting such a defendant, than for the prosecutor to agree to such a plea negotiation. Consequently, as with all criminal defense, the defendant and their criminal defense lawyer need to go to the trial date ready for trial. Of course, nothing ventured, nothing gained. With numerous prosecutors and prosecutors’ offices, even obtaining an amendment from a mandatory minimum jail BAC DWI prosecution of 0.15 or more to a plea involving no active jail can be a big deal, especially when that BAC reaches well over 0.21 (for which I have also several times, including recently, obtained no active jail plea deals). A prosecutor two counties south from me told me — apparently without exaggeration — that newly hired assistant commonwealth’s attorneys at his office are required to sign an acknowledgement that they will be fired if they ever negotiate a DWI prosecution down to a reckless driving disposition. In that regard, a defendant’s prospects to obtain a great negotiated settlement in a Virginia DUI prosecution depends on such factors as the circumstances of the incident, the prosecutor’s office involved, the assigned prosecutor, the judge, the DWI defense lawyer, and the self-improvement efforts of the defendant. Overcovering risk is about pursuing your best possible result against your Virginia DWI prosecution.

Should my Virginia DUI lawyer negotiate my case before my trial date? Is that overcovering risk?

Unless the prosecutor sets a deadline before the trial date on any plea offer, I typically prefer waiting until the trial date to engage in Virginia District Court settlement negotiations with the prosecutor. That usually is the best approach for overcovering risk. By waiting until the trial date, I learn of the absence of any prosecution witnesses, or the obligation of any prosecutor witness also to be at another courthouse or elsewhere that day. I also learn whether the prosecutor has other much more pressing cases that will take up a lot of their time, with a settlement negotiation with me thereby alleviating the prosecutor’s time. Furthermore, I do not always know who my judge will be, and that can influence settlement negotiations, for better or worse, where a judge more favorable to my defenses than other judges may spell a more favorable settlement. I do not usually expect that settlement negotiations on the trial date will be worse than before on the variable of a judge who is likely to be more favorable to the prosecution’s case. Starting many years ago, into the present, the Fairfax County General District Court stopped announcing the weekly judicial schedule. Aside from figuring that the same judge often sits at least three days in Fairfax courtroom 1D (which scheduled many Virginia DWI cases) and that the same judge typically sits in the satellite courts for the week (those being the courts in Fairfax City, Vienna and Herndon), it is hard to predict which judges will be sitting in the remaining Fairfax General District Courtrooms. In Fairfax and numerous other jurisdictions, we do often know our assigned DWI courtroom number at least a few days before trial, which in Fairfax enables us to match that information up with the prosecutor scheduled for that courtroom.

How did a Fairfax DUI lawyer obtain a wet reckless deal from a 0.16 BAC Virginia DWI prosecution?

As always, I went to the trial date in my client’s 0.16 blood alcohol concentration case fully ready for trial. For my part, I included providing the prosecutor with a copy of the data I obtained from the Virginia Department of Forensic Science (DFS), which establishes that my client blew six times into the Intox EC/IR II breathalyzer machine, with only two sufficient air breath volume samples. No airblank was performed on the remaining four insufficient breath samples, which therefore meant that the breathalyzer machine had not rules out whether alcohol had accumulated into the airtube, thereby possibly causing falsely high BAC readings. I told the prosecutor that if we did not settle the case that day, that we would arrange a next trial date (as permitted by this county court’s rules for the first DWI trial date) with the presence of a forensic toxicologist to testify that the BAC test score is thereby scientifically unreliable.  My client can thank himself for having engaged in overcovering risk by completing all my pretrial self improvement steps, namely: (1) Virginia DMV-approved driver improvement class (eight hours online, whereby the defendant can do an hour here and there, rather than completing the class all at once). (2)  Obtain an evaluation from a state-licensed alcohol treatment program. Prices vary for such an evaluation, and I refer my clients for such evaluations depending on their own personal circumstances and any prior DWI convictions. After learning that my client’s history is consistent with being a social drinker, I referred him for a reasonably priced evaluation, which came back with a Michigan Alcohol Screening Test (MAST) score of 3, which is great, because 2 is the lowest possible MAST score for a DUI case, and 2 and 3 are both indicative of no problem drinking (3) Complete several documented self help meetings, which may either be Alcoholics Anonymous (AA) meetings or their equivalent (for instance the online meetings held by Stepchat.com (one hour meetings) and SmartRecovery.org (60-90 minute meetings). (4) Attend a two hour online Mothers Against Drunk Driving (MADD) Victim Impact Panel. By my having attended one of these online Victim Impact Panels myself (to see what my clients are experiencing with these panels), I am able to articulate to prosecutors how convincing this panel is to convince many non-alcoholics to forego driving after drinking.

Overcovering risk puts you in a more confident frame of mind for your trial date and during your entire defense

Plenty of Virginia DUI defendants feel like their stomach is tied into all sorts of knots, with concerns about loss of liberty and driving privileges from a conviction, and financial fallout from a DWI conviction (consider the cost of fines, court costs, Virginia Alcohol Safety Alcohol Program (VASAP or ASAP), increased car insurance costs, the ignition interlock device, apart from your investment in a Virginia DUI attorney). On top of that are concerns about a Virginia DWI conviction causing harm to the defendant’s reputation, employment status, security clearance and public trust status, military membership status and immigration status. By overcovering risk — starting with obtaining the best possible Virginia DUI lawyer for you and following your attorney’s self improvement recommendations — you increase your chances at a better case result, you feel more confident about your case and defense every step of the way, and you recognize some of the control that you have taken back from the low point of being stopped by police, investigated, arrested and prosecuted.
Fairfax DUI lawyer Jonathan Katz devotes nearly one third of his law practice to Virginia DWI defense and nearly 100% of his practice to criminal defense. Jon Katz’s devotion to delivering great Virginia DWI defense is backed up by his being among the small percentage of Virginia DWI defenders who are members of the essential National College of DUI Defense (NCDD) or its equivalent, and an even smaller percentage of such attorneys who have been trained by one of the nation’s top trainers to police in administering field sobriety tests (FSTs/ SFSTs) to people who have been consuming alcohol. Call 703-383-1100 for your free in-person initial strictly confidential consultation with Jon Katz about your court pending prosecution.