Prosecution witness absence turns a DWI prosecution into a wet reckless disposition, recounts Fairfax criminal lawyer

Prosecution witness (PW) absence will happen from time to time in Virginia court. As a Fairfax criminal lawyer, I know that this does not automatically translate into a permanent dismissal, denial of a prosecution continuance, nor absence of a prosecutor recharge if the case gets entered nolle prosequi (non-prejudicial dismissal) after a continuance denial. Consequently, when a prosecutor tells me that an essential PW is not available, that is the time for me and my client to determine whether to pursue settlement possibilities that might not have been available otherwise. Although I ideally prefer not to settle a criminal case on the trial date when the prosecutor is not ready to prove their case, reality dictates considering whether the negotiating situation will be materialyl worse if the trial date gets reset and the essential PWs appear on that date.

Be ready for assistant commonwealth’s attorneys who for days know their essential prosecution witness will be unavailable, but do not tell the Virginia criminal lawyer

On several occasions, I have encountered some Virginia assistant commonwealth’s attorneys / prosecutors, who easily could have sent me a quick email or phone call that they will not be ready for trial, but do not do so. One of the most egregious variations on that theme involved my making a late night visit to a client before his preliminary hearing in a very serious felony case, only to appear the next morning for the hearing, where the prosecutor told me that he would be moving to dismiss the case without prejudice (entering the matter nolle prosequi) based on learning of a federal arrest warrant for similar alleged behavior invovling many more counts than in this county. I asked the prosecutor when he knew of this. “Yesterday”. I asked whether the prosecutor had the day before released his witnesses. “Yes.” I asked why the prosecutor did not, therefore, tell me that there would be no hearing. The prosecutor first answered that this was informed by not wanting my client to harm himself by learning of the more serious charges. That did not make any sense, because on this morning he was going to learn this information anyway. The prosecutor then indicated not thinking it necessary to spend after hours time to contact defense attorneys, but the prosecutor had already taken time to release the prosecution witnesses before the day of this preliminary hearing. In another instance, a prosecutor told me of having known for over a week that an essential trial witness would not be available, did not tell me about such unavailability until the trial date, and, in responding to the judge to my oral opposition to his continuance request, had the temerity to tell the judge that the prosecutor did not think he had an obligation to tell me such information before the trial date. Of course, having discretion, the judge could have denied a continuance for such prosecutorial silence, but did not. (Granted that those regularly at this courthouse may have already known of this witness’s unavailability, but I am not a regular at this particular courthouse.)

Seize the opportunity from prosecutors’ intended trial continuance requests

Recently, I went to a bench trial date in a county neighboring my Fairfax criminal law firm, for a DUI prosecution under Virginia Code  § 18.2-266, and the arresting police officer told me that the prosecution witness police officer operating the breath testing / Intox EC/IR II breathalyzer machine had undergone major surgery a few weeks before, he was still on leave, and the arresting officer had told the prosecutor’s office of that around a week before the trial date. I then spoke with the prosecutor, who told me of his need to seek a continuance due to the breath test operator’s absence. He told me he learned of this absence two days before. I replied: “Nobody told me until today.” He asked if I would be objecting to a postponement. “Of course,” I answered. “My client is about to start months-long training for his new promotion, and any postponement will disrupt that. My recollection is that the court marked today for a trial date rather than a possible  status date.” Of course, if the prosecutor’s continuance request got denied, the judge was nearly 100% going to grant a nolle prosequi motion, to allow a non-prejudicial dismissal, allowing a recharge within the one year statue of limitations. The arresting officer already confirmed that the breath technician was going to be back on duty soon, so we were unlikely to avoid the prosecution from proceeding forward absent settling that date. In this county where prosecutors are much less willing to amend DUI cases to wet reckless, we obtained a wet reckless on that day with the breath technician’s absence, and after providing the prosecutor with documentation of all my client’s great self improvement steps in this case that had a high chance of conviction at a trial with the arresting officer and breath technician. Carpe diem. 

Be ready for anything on your trial date

Trial dates can be a roller coaster for many reasons. On one trial date where my client was accused of stabbing his prosecution witness girlfriend multiple times with an icepick, I was encouraged when she did not appear timely for the trial date, until just moments before the prosecutor was going to ask for a postponement, and in the alleged victim walked, my client got convicted at trial, and he got a substantial sentence. This means to make sure that your Virginia criminal lawyer is always fully prepared for trial and never lets their guard down with false hope. I always follow that lesson.

Fairfax criminal lawyer Jonathan Katz senses for all defense-beneficial opportunities in pursuing your best possible defense against Virginia DUI, felony and misdemeanor prosecutions. We make scheduling easy for you to meet wtih Jon Katz for free in person about your court-pending prosecution, by calling us at 703-383-1100, emailing at info@BeatTheProsecution.com or texting us at 571-406-7268.