Some days are like removing the donut weight from a baseball bat

Apr 03, 2014 Some days are like removing the donut weight from a baseball bat

My clients usually ask me what their chances are in court. This is not merely to satisfy natural anticipation, but also to have plans in place in case they are convicted, and depending on the type of conviction and sentence.

I do my best to obtain advance intelligence for my clients’ cases, including reviewing and investigating the case with my client, obtaining information through freedom of information requests and other means, obtaining discovery orders and discovery agreements, speaking with witnesses, and obtaining discovery from prosecutors and the police.

In Virginia, discovery rules and procedure are limited (see here also), in part by Virginia’s having no Jencks rule entitling me to access opposing witnesses’ (including cops’) statements prior to my cross examining them in court. My investigation, review of the discovery and case, and review of the relevant law as it relates to the case do not equip me with precise knowledge about what will happen in my client’s case; I can only forecast as best I can. None of that tells me who our judge will be, who will be on our potential jury pool, and what the mood and physical health will be of the judge, potential jurors, prosecutors and opposing witnesses If they just won a poker game, they might be happy. If they got nauseous from their previous night’s dinner, they might not be in a good mood.

When I am fortunate, some or many of my warnings to my clients about potential case landmines become like the baseball bat donut weight that comes off once the batter faces the pitcher, making the bat feel lighter than if the weight had never been added.

When I am exceptionally fortunate, my day in court is like the most auspicious stars perfectly aligned, like in the following recent court date. My client was charged with driving while intoxicated and refusing the breath test in a Northern Virginia General District Court. A DWI conviction would have meant a one-year license suspension, with restricted driving privileges, and the ignition interlock for at least six months. A refusal conviction would have meant one year of no driving at all, followed by consecutive suspended driving for any DWI conviction.

Absent anything unusual, a common settlement offer from prosecutors for such a scenario is to enter a guilty plea to DWI for a dismissal of the refusal charge. Such a disposition can defeat the purpose of refusing a breath test in the first place, which is to try to enhance one’s chances of acquittal on DWI. However, how many people want to hitchhike for a year for a refusal conviction? Answer: Those with out-of-Virginia licenses are more willing to risk a refusal conviction if they do not need to drive in Virginia and if their own states will not treat them adversely for a refusal conviction.

Under the circumstances of my client’s case, his most likely settlement offer options seemed to be plead guilty to DWI and dismiss the refusal, or possibly do the opposite, Lo and behold, when I walked into court, I learned that the prosecutor was the most favorable one I could have had for this case in this county. On top of that, the police officer was as friendly as could be, and fully willing to tell the prosecutor he had no qualms about amending the charge to reckless driving. For icing on the cake, we had my favorite General District Court judge in this county courthouse. Count those three stars all aligned right: My preferred prosecutor and judge, and a police officer on our side.

After investing waiting time during negotiations, I finally worked out a deal to plead guilty to reckless driving, amended from DWI, dismiss the refusal charge, pay a fine, get a short suspended jail sentence, get one year of unsupervised probation, complete alcohol education, have suspended driving privileges for six months, with restricted driving privileges and drive with the ignition interlock during the suspension period.

Our chances of losing on the original counts were significant. This was a great day in court.

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