Virginia DUI negotiations lead to reckless driving result after arriving in court armed to the teeth

Virginia DUI negotiations — and all criminal case negotiations — must be backed up with full readiness and ability to proceed to trial and win. As a Fairfax DWI lawyer, that truism proved itself again when the prosecutor within the span of twenty-eight hours transitioned from telling me the reasons he could not justify my proposal for a wet reckless driving disposition on a 0.16 blood testing case (twice the legal limit) to ultimately agreeing on the trial date to just that, with no active jail time. What happened in the interim apparently were the unknown words that the police officer spoke to the prosecutor.

A lawyer cannot promise Virginia DUI negotiations results to a defendant, but can promise to bust the attorney’s butt to obtain great results in court

While I have previously obtained Virginia DUI negotiations results as good as this for a blood alcohol content (BAC) test this high, I am careful to tell my clients to be ready for trial in the event I do not pull off the client’s negotiation goal in this or any other Virginia DUI or criminal case. In this case that resulted in a wet reckless result after a 0.16 BAC blood test, we fully prepared both for trial and negotiating the case for a possible wet reckless result. One of the first things I did for trial preparation was to obtain a judicial order to transfer a sample of my client’s blood to an independent lab. Lo and behold, the independent lab result was a 0.152 with a +/- margin of uncertainly of 0.009. Consequently, we set the trial date for the availability of a forensic toxicologist to appear, whose opinion was that scientifically it is essential to take the lowest blood test reading between the Virginia Department of Forensic Science (DFS) and the private lab (NMS Labs, on whom the DFS has relied on as accurate for conducting independent testing of allegedly illegal drugs), and to subtract the entire margin of uncertainty (resulting in a 0.143, which is below the 0.15 mandatory minimum five days jail threshold). On top of that, this forensic toxicologist would also have testified that the blood test was unreliable for omitting mass spectrometry from the blood testing.

When my Virginia DUI independent blood test is trial-favorable to me, how do I secure the benefit of that favorable test?

Pursuant to Virginia Code § 19.2-187, months before trial  (in this Virginia county, blood DUI cases are scheduled months away), I filed the NMS Labs certificate of analysis with the court, with a copy transmitted to the commonwealth’s attorney’s office for this county. The foregoing statute provides that: “In any hearing or trial of any criminal offense… a certificate of analysis of a person performing an analysis or examination, duly attested by such person, shall be admissible in evidence as evidence of the facts therein stated and the results of the analysis or examination referred to therein, provided that (i) the certificate of analysis is filed with the clerk of the court hearing the case at least seven days prior to the proceeding if … the accused intends to offer it into evidence in any hearing or trial…” Va. Code § 19.2-187. The prosecutor filed no objection thereto. This kind of Virginia DUI defense thoroughness preparing for trial can assist Virginia DUI negotiations.

How much does self improvement help me in pursuing a favorable negotiated result in a Virginia DUI prosecution?

For particularly important personal reasons, my client had to avoid a Virginia DUI conviction. Although I often prefer starting Virginia DUI negotiations not until the trial date in this and other District Court misdemeanor cases, this particular case merited starting negotiations prior to the trial date — contingent on the availability otherwise of the prosecutor’s necessary trial witnesses — in part considering that in this county the blood DWI trial dockets tend to be so heavily booked that the prosecutor will not always have as much time to review and consider all the persuasive documentation and reasons I present to backup my client’s negotiation goals. Included in my negotiating packet to the prosecutor before the trial date were my client’s excellent self improvement accomplishments with getting evaluated at an alcohol education / treatment program, completing many online Alcoholics Anonymous-type meetings, and completing a driving improvement class (although the driving behavior here was not egregious and did not involve any accident or collision).

Why did the prosecutor transition from talking against a Virginia wet reckless plea to finally agreeing to such a disposition?

The prosecutor in this case has years of experience handling such cases and with Virginia DUI negotiations, so clearly used that experience in evaluating this case. On the trial date, I not only pointed out such factors to the prosecutor as those above, but also informed him that our forensic toxicologist was present — having travelled from over 3.5 hours away — and that if we settled this case for wet reckless driving, I could sooner get him driving back home before the afternoon rush hour started. The prosecutor had watched the incident video, and I pointed out to him how nice my client was to the police officer throughout the encounter. The police officer agreed with me that my client was very kind to him. I certainly do not recommend that people kiss police officer’s butts nor waive any rights with the police. At the same time, if my client was nice with the police officer (which is not the same as kissing butt nor waiving rights), I can point that out in case negotiations and any sentencing, in that this makes the police officer ready to be more productive and to more quickly get back on the road to conduct further law enforcement.

If the prosecutor wants a trial, give him a trial

After the judge left the bench for a few minutes to enable the parties to continue any further discussions, a colleague asked the prosecutor if any of his cases for the afternoon would be a trial. The prosecutor replied that he might have a trial with me. A few moments later, I told the prosecutor “I have a gift for you” and handed him a wet reckless settlement agreement, already signed by me and my client, thus assuring the prosecutor no consumed time in back and forth negotiating if the prosecutor would simply sign off on that agreement. The prosecutor then agreed to a wet reckless disposition. Virginia DUI negotiations for a reckless after such a high BAC test result are a challenge, but sometimes can be achieved with demonstrated thorough readiness for trial.

A DUI and criminal defense lawyer sometimes finds a friend in the police officer

After the judge accepted and imposed the party-agreed wet reckless sentence for my client, as I was leaving I thanked the prosecutor for spending time discussing the case with me. He replied that I should not be thanking the prosecutor, but instead the police officer, whom I early that afternoon had told how harmful a DUI conviction would be for my client. When I asked the police officer what he told the prosecutor concerning our Virginia DUI negotiations, he would not tell me. Had he done so, that would have been but icing on the cake for a great court result.

Virginia DUI lawyer Jonathan Katz has successfully defended hundreds of people charged with DWI, taking hundreds of such cases to trial. The lawyer you hire for your Virginia DUI, felony or misdemeanor case can make a huge difference in your case. Find out how Jon Katz can set your case up for as much victory as possible, by scheduling a free in-person consultation about your court-pending case, at 703-383-1100.