Witness availability needs checking before pleading guilty – Fairfax DUI lawyer

Fairfax DUI lawyer obtains reckless driving result after prosecution witness calls in sick

Witness availability — on the prosecution side — always needs to be checked by the defense lawyer as part of advising a criminal or DUI defendant whether to proceed to trial and how to proceed with settlement/plea negotiations.

Virginia DUI lawyer on the interplay between witness availability and criminal case settlement negotiations

As a Fairfax DUI lawyer, my ideal is to wait until the trial date to see whether the essential prosecution witnesses have arrived to court or are reliably on call, because sometimes they do not arrive, whether because of not being subpoenaed, miscalendaring, scheduling conflicts, transportation issues, delays, sickness, disinterest, or work or family obligations. In the Virginia state district courts where I usually appear, I can usually wait until the trial date to make such a check. In many other instances, negotiations are conditioned on settling the case before the trial date, in which case I need to check about witnesses other than seeing if they are in the courthouse.

Virginia DUI lawyer on what happens when illness prevents the presence of an essential prosecution witness

Recently at a federal DUI trial, the proceedings got adjourned for a future date to handle a procedural matter that came to light during the trial. Up until that point, I had not been able convince the prosecutor to settle the case for reckless driving, which would have been a great outcome in this case that had a high chance of a DWI conviction had the prosecutor’s witnesses showed up for trial.

Lo and behold, on the resumed trial date, the prosecutor told me that the breath testing technician in this DUI case — who was present on the first trial date — woke up very ill. It sounded clear to me that the judge was going to believe that the breath technician was too ill to come to court, and was not going to hand the defense a windfall by rejecting a continuance.

Obtaining a reckless driving disposition after much hard work for trial and for case negotiations

The prosecutor then offered the defense the option of a favorable reckless driving plea (amended from the DUI charge) or for the prosecutor to seek a trial date postponement, which he likely would have been granted. This was a favorable outcome.

Fairfax DUI lawyer Jonathan L. Katz has since 1991 successfully defended hundreds of people charged with DUI/ DWI in state and federal court. To discuss your criminal or DUI case with Jon, please call his staff at 703-383-1100 to schedule a confidential consultation.