Recklessly driving plea deals can result even against high blood alcohol concentration (BAC) Virginia DUI cases, says Fairfax criminal lawyer

Recklessly driving is a superior conviction to a conviction for driving under the influence of alcohol and/or drugs under Virginia Code § 18.2-266.  As a Fairfax criminal lawyer, I here relate two successes in Fairfax City General District Court in converting two high BAC DUI convictions to reckless driving with no active jail time. These successes came after full perseverance, trial readiness, and client courage to not jump at offers long before trial to instead take a no-active jail DWI (driving while impaired) plea deal. If you currently have a Virginia DUI prosecution against you, this article may inspire  you not to throw in the towel, to obtain the best possible Fairfax criminal lawyer or Virginia DUI attorney for you, to fully fight your case, and to have the courage not to quickly accept the first plea offer that comes your way. This article is about (1)  obtaining a reckless driving and refusal conviction for a Virginia DUI prosecution involving an alleged rear-end collision and a 0.21 BAC result by the Virginia Department of Forensic Science (DFS) and (2) obtaining a reckless driving conviction for a DWI prosecution that followed a vehicle stop for alleged speeding, and a 0.15 BAC test result by the DFS. In each instance, the prosecutor offered a standard first DWI plea offer with no active jail long before the trial date, and we bettered those offers on the trial date.

Do any shortcuts exist to converting a Virginia DUI prosecution to a recklessly driving result with no active jail time?

No shortcuts exist to obtaining great results against Fairfax prosecutions (including when recklessly driving is the best result), nor against prosecutions anywhere else in Northern Virginia and beyond. Great negotiated results like these are cause for celebration, but must never be relied upon in place of fully preparation with (1) full trial preparation, (2) well-prepared and executed settlement / plea negotiations, (3) full preparation for any possible sentencing, and (4) appealing if needed, and convincing the judge to keep the Virginia criminal defendant out of jail pending appeal. This Fairfax City criminal court success helps illustrate the first three of the four foregoing approaches, where an appeal was not necessary.

Full trial preparation means being fully prepared with evidence, investigation, the relevant law, and fully synthesizing the trial approach before ever setting foot in the courtroom

Some Virginia criminal defendants wait until very close to their trial date to seek a lawyer, whether due to wanting to avoid considering their potential or actual court predicament, wanting to focus on work or other obligations, or having financial sensitivity about paying a lawyer (if they do not qualify for a court appointed attorney). A stitch in time can save nine. By waiting too close to your trial date to obtain the best possible Virginia criminal lawyer for you may have missed such critical deadlines as the time for getting a proposed discovery / evidence order to the court and prosecutor, the time to timely object to the admission of your BAC results or drug test results in your Virginia DUI or drug prosecution, and your time to get witnesses and evidence subpoenaed. Full trial preparation includes your working closely as a team with your Virginia criminal lawyer, and your criminal defense lawyer working tirelessly on your behalf, including timely obtaining and fully reviewing the essential evidence, discovery and governing law, digesting and analyzing all of that, having a great plan and strategy for pursuing your defense (whether that include pursuing a recklessly driving disposition or not), and including you on the approach for beating the prosecution as best as possible.

Convincing the prosecutor that the defense is negotiating without bluffing

A colleague one day characterized some untruths as being permissible in negotiating with opposing lawyers, characterizing it as puffing. Call it what you want, but for every reason, a lawyer must proceed honestly and honorably at all stages. To do otherwise not only violates the law and what it means to be a human, but also risks the lawyer’s license to practice law and risks derailing your entire case for so many reasons, including that once a prosecutor views your Virginia criminal lawyer as not communicating honestly nor playing according to the governing rules, that prosecutor at the very least may be distracted by guarding against such criminal defense lawyer behavior rather than being open to amending the negotiating approach to obtain the “yes” of a settlement. Here, I settled one of these two Fairfax City cases early on for wet reckless, without needing to address the chances that we would go to trial if not reaching a recklessly driving deal. With the other case, I made clear from the outset that this case was not going to settle for DWI, regardless of the sentencing risks at trial. The aggravating factors for both of these cases was not only the mandatory minimum jail if convicted for DUI with the alleged elevated BAC’s (five days mandatory minimum jail for a BAC of 0.15 BAC or over, and ten days in jail for a BAC exceeding 0.20), but also if the judge convicted and, respectively, found that speed or the collision was correlated to intoxication. Also helping convince the prosecutor that we meant business may have been with the prosecutor’s seeing that I was thoroughly prepared for trial for both cases, including having obtained favorable independent BAC-testing lab results that would enable our present independent forensic toxicologist to testify that the highest BAC reading for both defendants needed respectively to be under 0.15 and under 0.20.

Can my Virginia criminal lawyer negotiate my case to a recklessly driving disposition or otherwise even during and right before my trial starts?

Before the judge or jury renders a verdict of not guilty (acquittal) or guilty in your prosecution, your Virginia criminal defense lawyer may continue to negotiate for a settlement of your case. The beauty of your Fairfax criminal lawyer’s being fully prepared for trial before your trial date is that trial date negotiating and any other activity on the trial date does not distract from trial preparation, because your attorney already is prepared. Here, only moments before the judge was going to enter the courtroom to start our trial, I kept talking with the prosecutor. Pursuing my strong belief in negotiating on goals rather than positions, I told the prosecutor that I firmly believed we could find a way to negotiate this case for a reckless driving disposition. At one point, the prosecutor asked what had changed that day to convince him to agree to reckless driving that had not convinced him to do so before that day. Through applying my martial art’s approach of sticking to the opponent rather than acting repelled by the opponent (and I have never felt repelled by this prosecutor), without skipping a beat, I said along the lines of “This morning, you did not outright reject my reckless driving proposal. Let’s work from that place where you were willing to consider such a possibility.” On top of that, without my prompting, the prosecutor earlier that morning acknowledged that the stopping police officer directed my client to drive his car to a location that would not obstruct traffic, where that could be used by me as an argument of the lack of probable cause for the police officer to have arrested my client for DWI, where on top of that my client participated in no field testing and did not admit to any alcohol consumption, leaving the prosecutor to rely on the police officer’s claim of a blank stare by the defendant, an unquantified odor of alcohol, alleged disheveled appearance (unsupported by the incident video) and being unsteady on his feet (unsupported by the incident video). I pointed out early that morning about the defense’s real chance of winning the case on a finding of no probable cause to arrest for suspected DWI, and also pointed out that the blood search warrant police affidavit’s absence of showing how it was concluded that the defendant had been driving might win my suppression motion to exclude the blood, which exclusion would have won our trial. Thanks to the prosecutor’s willingness to talk with me that close in time to starting our trial, the parties reached a settlement breakthrough for recklessly driving with no active jail and agreed terms and conditions (including completing the Virginia Alcohol Safety Action Program (VASAP), and taking the firm pill of waiting six months on the connected breath testing refusal charge, to apply for restricted driving).

Fairfax criminal lawyer Jonathan Katz fully drives forward in pursuing your best possible defense against Virginia felony, misdemeanor and DUI prosecutions. Your first step to a great defense is just one call away, by scheduling your free in-person confidential consultation with Jon Katz about your court-pending case. Call us at703-383-1100, info@BeatTheProsecution.com and (text) 571-406-7268.