Plea negotiations need to be backed up with full preparation and trial readiness, says Fairfax criminal lawyer

Plea negotiations are a vital part of criminal defense. As a Fairfax criminal lawyer, I know that ideally no innocent person will plead guilty, no contest / nolo contendere, or Alford, and that people who committed crimes should not automatically deviate from pleading not guilty. In the end, the decision to proceed to trial or settle the case is the Virginia criminal defendant’s choice and not that of his or her attorney, who is not the one who will bear the brunt of a potentially worse outcome from proceeding to trial than entering into a plea agreement. Fortunately in Virginia, settlement negotiations can sometimes involve dismissal deals — whether same-day or eventual dismissals — for instance when pursuant to the deferred disposition statute of Virginia Code § 19.2-298.02 Beware, though, that deferred dispositions have their potential pitfalls, including adverse effects on one’s reputation and career from the very existence of the prosecution, having security clearance and other relevant authorities see a conditional guilty or no contest plea for a deferred disposition as akin to a conviction even if a dismissal results, and getting convicted if the court determines the conditions for a § 19.2-298.02 disposition have not been met.

Preparation and trial readiness by themselves are not enough for successful Virginia plea negotiations

Preparation and trial readiness by themselves are not enough for successful plea negotiations. Added to that needs to be full and relevant attention, engagement and effective sensing by your Virginia criminal defense lawyer. That was underlined again with my recent negotiation of two Virginia DUI prosecutions to reckless driving convictions. With one of those two DWI cases, my client was charged with driving under the influence of alcohol, reckless speed (alleging a very high speed), and refusal to submit to post-arrest breath alcohol concentration (BAC) testing. A search warrant was issued to draw blood for a BAC analysis, yielding a result more than fifty percent over the legal limit of 0.08 BAC, by a blood examiner whom I expected to hold up well for direct and cross examination. Fortunately, before the court date my client had completed many important self improvement steps, and was evaluated as being a non-problem drinker. The prosecutor hesitated during our in-depth discussions to agree to any settlement better than including a DUI conviction under Virginia Code § 18.2-266. I pointed out my client’s strong chance of winning the DWI count based on a judicial finding of probable cause to arrest for DUI being far from a foregone conclusion. My articulated full knowledge of the strengths and weaknesses of my client’s case let the prosecutor know that my negotiating was fully backed up by trial readiness. Pursuing the getting to yes approach of negotiating on goals versus positions, I progressively sweetened my offers to the point of settling for a conviction for reckless speed and reckless generally, suspended jail, restricted driving for one of the counts, the Virginia Alcohol Safety Action Program (VASAP), court fines, and additional self improvement to do as a condition of probation. Also with another Virginia DUI and refusal prosecution (this time with no blood draw), I zeroed the prosecutor in on my client’s substantial self improvement and alcohol program analysis of not being a problem drinker.

Considering cognitive versus physical issues with field sobriety testing and on-scene observation for Virginia DUI defense

Many if not all Virginia bench trial judges will have a checklist in front of them to note such factors as testimony or video footage of odor of alcohol, bloodshot eyes, glass eyes, watery eyes, and slurred speech (and the quantification of each), as well as the extent to which police instructions on following field sobriety testing (FSTs / SFSTs) instructions are followed and met or not. However, a factfinder has to consider the totality of the circumstances, and not merely testing administered by police and created at some point by the National Highway Transportation Safetey Administration (NHTSA) of the federal Department of Transportation (DOT). For instance, also important for crediting a Virginia DUI defendant is whether they easily go through all the steps of providing the law enforcement officer (LEO) with their driver’s license (for instance finding the container holding the license, finding the license therein, retrieving the license therefrom, and handing the LEO their license). Also very important is the extent to which the police officer is fair with the defendant. For instance, it is not only essential for the police officer to inquire about the extent to which the suspect has any physical or other health issues that might interfere with their performance on FSTs, but for that question to be coupled with telling the suspect the types of testing involved, or at least to ask whether the suspect has any physical or health issues that can interfere with balance and walking a straight line. On top of that, if the police officer hears a non-American accent, it is not sufficient merely to ask if the suspect understands English, rather than to inquire about the suspect’s facility with English (whereby most people finish American elementary schools knowing thousands of English words), experience attending school in English, and whether the suspect wants an interpreter who speaks their first language and English (which is made all the easier in today’s day and age of interpreters available by phone, so long as their interpreting skills and actual interpreting on the incident date are good). Once a suspect tells of any physical impairments, balance issues or other relevant health issues, that is particularly the time for the Virginia criminal defense lawyer to be ready to point out the extent to which any less-than-stellar FST performance or other coordination or balance issues are consistent with such issues, possible exhaustion, or the startling event of any collision thus creating reasonable doubt whether they are caused by alcohol. On the other hand, taking too many steps out and back on the nine-step walk and turn test calls for more pretrial inquiry, analysis and consideration and sometimes more creativity where, as here, the prosecution might have stronger arguments about cognitive issues with the suspect’s behavior on the scene. All of these considerations are vital both for Virginia criminal trial defense and plea negotiations.

When the prosecutor articulates the Virginia criminal defendant’s trial readiness in agreeing to defense-friendly plea negotitions.

Sometimes showing up fully ready for trial can be the bulk of what is needed for obtaining a favorable plea deal. In one such instance, my client was charged with a second DUI offense (risking mandatory minimum jail) and a 0.15 BAC (risking ten days additional of mandatory minimum jail). The prosecutor saw that we were fully fighting this case, starting with when we proceeded with a spirited evidentiary hearing to challenge my client’s sixty-day administrative driver’s license suspension that is permitted by Virginia law when the court magistrate finds probable cause to believe that the alleged crime was committed. We did not win that hearing, but we did obtain a favorable result with plea negotiations. The breath testing operator confirmed to me not recalling whether he had inspected my client’s mouth for foreign substances at least twenty minutes before commencing post-arrest BAC breath testing. I told the prosecutor of this lapse, together with confirming that we had present a forensic toxicology expert to attack the breath testing result, including whether a 0.15 or higher BAC could be proven. In agreeing to a no-active-jail plea, the prosecutor said that he expected a good chance of winning at this bench trial stage in Virginia District Court, but expected that any conviction there would lead to an appeal (which was perhaps underlined to the prosecutor by my client’s willingness to pay for the presence of the forensic toxicologist) where he expected I had a stronger chance for this trial de novo to keep out the breath test results as prosecutorial trial evidence.

Talking to the prosecutor about bet hedging while offering up a conviction

Sometimes with plea negotiations, I talk with prosecutors in combination or succession about some of the key bets each side has to hedge against trial loss for the respective side, and about wanting to give the prosecutor a conviction but just not the conviction that the prosecutor would ideally prefer. For instance: “I want to give you a conviction, but just not an assault conviction, but my client is happy to plead guilty to disorderly conduct” or “we offer you a reckless driving conviction, but not a Virginia DUI conviction.”

Fairfax criminal lawyer Jonathan Katz relentlessly and devotedly pursues your best defense against Virginia felony, misdemeanor and DUI prosecutions. For your free in-person confidential consultation with Jon Katz about your court-pending case, call 703-383-1100, Info@KatzJustice.com or (text) 571-406-7268.