Policy on going to trial rather than pleading guilty is not one-sided in Virginia court, says Fairfax criminal lawyer

Policy sometimes gets trotted out by prosecutors when explaining why they draw a certain line on negotiations, including amorphous or more defined limits on reducing a DUI charge under Virginia Code § 18.2-266, to reckless in negotiations. As a Fairfax criminal lawyer, I know that is a two-way street. I cannot respond that “It is my watchword to go to trial, then”, but the decision to go to trial becomes that of my client, making P then fly out the window when the case proceeds to trial. The decision to go to trial is easy to make when the risk of a worse outcome at trial is not much more than accepting the prosecutor’s last plea offer. The decision may become more challenging to a Virginia criminal defendant when going to trial risks being convicted of more serious count(s) and increases incarceration risk (for instance when Virginia judges impose active jail when concluding that alcohol in a DWI prosecution materially contributed to the defendant’s high speeding or to a significant collision.) One thing is for sure: A criminal defense lawyer MUST be ready for trial, because the defendant is the one to choose between going to trial and settling, no matter how much going to trial seems to be a high wire act. Furthermore, the more that a defendant knows that their lawyer will perform well at trial, the less likely will be a defendant’s choice to plead guilty or no contest / nolo contendere / Alford to avoid fallout from poor defense lawyer trial performance. My previous Beat the Prosecution podcast guest Lisa Monet Wayne is a great example of using courage to proceed to trial with great performance and persuasion, no matter how high the stakes.

On my winning a recent Virginia bench trial, with counts alleging DUI and driving while consuming alcohol, in the face of asserted prosecutorial policy

Great criminal defense lawyer Terence F. MacCarthy once described non-jury / bench trials as slow guilty pleas. However, we Virginia criminal defense lawyers are not able to accept that concept where the Virginia law requires all misdemeanor cases (other than those that commence in Circuit Court, which is not common except when indicted along with one or more felony counts) to first go to trial without a jury in District Court, and only see a jury if the defendant timely appeals from a conviction in the General District Court (GDC) or, in the case of an adult, from a conviction in the Juvenile and Domestic Relations District Court (JDR). Recently, stating office policy, a prosecutor flat-out rejected my offer to settle my client’s Virginia DUI prosecution for a wet reckless driving disposition with agreed terms and conditions, asserting that his office does not do that without an issue that merits it. I then told the prosecutor of my forensic toxicology issues, and confirmed that the defense forensic toxicology expert was present to testify. The prosecutor confirmed that he had present the head of the Virginia Department of Forensic Science’s (DFS) breath testing unit, and still declined a wet reckless deal.

How do I win if the prosecutor says I had slurred speech and refused field sobriety tests (FSTs)?

In this Virginia DUI prosecution where the prosecutor addressed office policy, the incident video showed the English-speaking police officer rousing my Spanish-speaking client from sleep with his car running. Even when my client confirmed that he wanted a Spanish-speaker to assist for my client to understand, the original police officer persisted in asking my client material questions, in English, even though the Spanish-speaking law enforcement officer (LEO) was but a minute or two away. At trial, the police officer characterized my client as having slurred speech, an odor of alcohol, and bloodshot and watery eyes. In my convincing the judge that the police lacked probable cause to arrest my client — thereby making his arrest unlawful and in violation of the federal Constitution’s Fourth Amendment prohibition against searches and seizures without probable cause to do so — I underlined that my client’s speech pattern was consistent with someone, as here, who had just been roused from sleep late in the afternoon, where he confirmed having been tired from work as a person with a physically demanding job, and that his speech pattern was also consistent with his Spanish-speaking accent. I also underlined that the police officer did not quantify the odor of alcohol (only weak, or stronger than that?), nor how bloodshot (how bloodshot? – only short hairline red threads, or more pronounced than that?). I underlined that my client’s refusal to engage in FSTs was no help to the prosecutor for establishing probable cause to arrest where the Virginia caselaw makes clear that such tests are voluntary — Hammond v. Commonwealth of Virginia, 17 Va.App. 565, 439 S.E.2d 877 (1994) — and such refusal cannot be determined to represent consciousness of guilt,  Jones v. Commonwealth, 279 Va. 52 (Va. 2010).

How do I beat a Virginia charge of drinking alcohol while driving?

We next proceeded from this DUI win after the prosecutor trotted out his office policy, to the my obtaining an acquittal of the remaining count charging my client with consuming alcohol while driving, under the Virginia law that generally presumes doing so (which I characterize as a rebuttable presumption) when an unsealed container of alcohol is within reach of the driver. Virginia Code § 18.2-323.1. I pointed out that the police officer (over my hearsay objection) said what beer brand was on the can in the console, but that there was no evidence that the can was seized nor checked for any alcohol therein (the latter point was pointed out by the judge in acquitting on that count). I pointed out that no expert (nor anyone else) testified to testing the contents of the can (if there were any contents at all), and that we did not even hear the police officer say whether or not an odor of alcohol was emanating from the can. I also said that assuming that the statutory elements of drinking and driving had been met, we had overcome the presumption by there being no showing that my client had done anything with the can that day before the police arrived. 

Should I run for the hills if my potential Virginia criminal lawyer tells me that my case is a loser before even seeing the police report and incident video?

This win for against my client’s Virginia DUI and drinking and driving charges was not assured, and was a great response to the prosecutor’s trotting out office policy. It called for laser-focused persuasive storytelling after fully reviewing the evidence and allegations, and providing a persuasive counterstory to the prosecutor’s efforts to paint my client’s actions in a more damning light than that. Such a pre-trial verdict scenario can be scary for a Virginia criminal defendant. When a criminal defendant obtains the right lawyer and works closely with that attorney as a team, that enhances the chances of victory. If your potential Virginia criminal lawyer tells you that your case is a loser before even seeing the police report and incident video, that is a red flag to proceed with caution. No matter how challenging a criminal case may at first look to a defense lawyer, our stock in trade is about finding the best possible avenues to get unfavorable evidence suppressed, defense objections granted, and reasonable doubt found.

Fairfax criminal lawyer Jonathan Katz approaches each defense knowing that your life, liberty and reputation depend on it. Jon Katz delightedly pursues your best defense against Virginia felony, misdemeanor and DUI prosecutions. Jon welcomes meeting with you for a free strictly confidential in-person consultation about your court-pending prosecution. Usually Jon Katz can meet with you within a business day of contacting his staff at 703-383-1100, Info@KatzJustice.com and (text) 571-406-7268.