Going to court

Editor’s note: The following story is part 2 in a three-part series on drunk driving. This week, we explore how the county’s legal system handles drunk driving arrests. To read part 1 in the series about sobriety testing and how arrests are made, visit www.chesterfieldobserver.com and search the archives for “DUI.”

Melissa Hoy, assistant commonwealth’s attorney, says DUI cases are some of the most complex to prosecute because of nuances in the law. Page Dowdy/Chesterfield Observer In Chesterfield County, drunk driving cases rarely offer any of the gut-wrenching drama manufactured by screenwriters and acted out on Hollywood sound stages. The majority are resolved with guilty pleas before the accused even sees the inside of a courtroom.

Once every so often, though, a defendant decides to challenge a DUI charge, and the machinery that is the county’s criminal justice system cranks up again in anticipation of a trial in General District Court.

“As prosecutors, we look at DUI cases as being some of the more complex cases to try. Assault cases, malicious wounding cases, robbery cases, cases where there are serious violent crimes involved, are a lot less difficult to handle as far as the elements of the offense than doing a DUI trial. There are far more I’s to dot and T’s to cross,” said Melissa Hoy, an assistant commonwealth’s attorney in Chesterfield. “Defense attorneys are constantly coming up with new ways to interpret the extensive amount of law that we have here, and they can be very creative.”

Nine out of 10 DUI trials in Chesterfield are “bench trials,” meaning the case is decided not by a jury, but by the presiding judge. While such trials routinely last only about an hour, pre-trial preparations can be much more timeconsuming for both prosecutors and defense attorneys.

Prosecutors review their case files and compile a checklist of required items, making sure the arresting officer followed procedure according to the relevant DUI statutes. Occasionally, if they’re working with a less-experienced officer or there are unusual aspects to the case, they’ll meet prior to the trial to prepare an effective direct examination.

“If it’s a seasoned officer who’s been out there five or six years and works midnights, DUI arrests are second nature to them,” Hoy added.

“Christmas in July”

A mid-July ruling by the U.S. Supreme Court added another level of complexity to DUI prosecutions. In Melendez-Diaz v. Massachusetts, the court held that, under the confrontation clause of the Sixth Amendment, defendants must be given the right to crossexamine forensic laboratory report analysts.

Previously, results of breath or blood tests were routinely admitted into evidence through affidavits submitted by the analyst. Now, if a defense attorney opts to challenge the results of the test, the analyst must testify to the findings in court, or the evidence will be considered inadmissible hearsay.

That’s not a problem for Virginia State Police troopers, who conduct their own Intoxilyzer examinations and can testify to the results. In Chesterfield, where the arresting officer frequently does not perform breath tests, that means the testing officer also must be subpoenaed to testify.

A “Menendez challenge” already has resulted in the dismissal of a DUI case in Fairfax County. Because the prosecution failed to call as a witness the officer who performed a breathalyzer test on defendant Diego Machado, Judge Jane Marum Roush threw out the test results and dismissed the charges against him.

According to a story published in The Washington Post, Fairfax County Commonwealth’s Attorney Ray Morrogh called the decision “Christmas in July for criminal lawyers who defend drunk drivers.”

Defense attorneys, who are hired to explore potential areas of weakness in the prosecutor’s case, consider such challenges simply doing their part to make sure the criminal justice system functions properly.

“We make the commonwealth meet its burden of proving beyond a reasonable doubt that the person was driving under the influence,” said Matt Nelson, a former Allegheny County prosecutor who now works in criminal defense for the Richmond-based firm Chucker and Reibach.

Finding a competent attorney to defend you against a DUI charge can cost thousands of dollars. While defendants without the financial means to hire their own attorneys can be declared indigent and provided court-appointed attorneys, they’re still liable for paying their attorneys’ fees if found guilty.

Still, depending on the circumstances of the arrest and the driving record of the defendant, mounting an aggressive defense could be the only way to avoid significant jail time.

Punishing the offenders

According to section 18.2-270 of Virginia’s criminal statutes, an initial DUI conviction is considered a Class 1 misdemeanor with a mandatory minimum fine of $250. Potential punishments only get stiffer with subsequent convictions.

If you’re convicted of a second DUI offense less than five years after the first conviction, you face a mandatory minimum $500 fine and a minimum of 10 days in jail.

A third DUI offense within a 10-year period will be considered a Class 6 felony, with a minimum $1,000 fine and mandatory minimum jail sentence of 90 days – unless the three offenses were committed within a five-year period, in which case the mandatory minimum sentence is six months of confinement.

Aggravating factors – such as elevated blood-alcohol level, whether there was an accident and whether there were injuries or fatalities – also enter into the sentencing process and can trigger additional mandatory jail time upon each conviction.

“You need to look at everybody on an individual basis. There are cases that command jail time, and there are those cases where it could be your neighbor or best friend who had too much wine to drink at dinner with his wife celebrating his anniversary. He’s not a bad person. He’s a hard-working guy who has a family to take care of. Do you throw the key away behind that person?” questioned Hoy.

“I think the way a lot of our judges look at it is that people are human. People have different factors and things about them that may make their case different: accidents, deaths. Cases where the prosecutor says, ‘I’m not budging. This person is going to jail for a long time.’”

Several aggravating factors were on display earlier this year when county resident Daphne Holt entered guilty pleas to felony child endangerment and felony DUI in Chesterfield Circuit Court.

Despite the fact that Holt’s third DUI conviction since 2003 came after she was stopped while driving erratically with her 9-month-old son unbuckled in his car seat, Judge Timothy Hauler suspended all but 185 days of an 11- year prison term. Holt also was fined $1,500 and had her driver’s license suspended indefinitely.

Holt had been fined $250 and sentenced to six months in jail (all suspended) for her first DUI conviction in February 2004. After her second conviction less than three years later, she was fined $500 and sentenced to six months in jail (all but 20 days suspended).

“The court system and society in general legitimize drunk driving by reducing sentences and letting people serve only part of the time. When we start treating it like the serious crime it is, people will stop doing it,” said Chris Konschak, executive director of Mothers Against Drunk Driving’s (MADD) Virginia chapter. “If you drive down the road waving a 2,000-pound automobile, and you wind up killing someone, you’ll probably wind up serving one or two years. If you did that with any other weapon, you’d serve many, many more years.”

“Looking at the big picture”

Hoy said that, generally speaking, the only time the commonwealth’s attorney’s office will agree to a plea bargain that results in a reduced sentence is if there’s a problem with the case that seriously compromises the possibility of obtaining a conviction – for example, if a driver was arrested and charged with DUI while on private property.

In that scenario, by virtue of a ruling by the Virginia Supreme Court, the commonwealth’s implied consent law no longer attaches, and the results of a subsequent blood-alcohol test are inadmissible as evidence. Without a valid test, the prosecutor must rely entirely on the arresting officer’s first-hand observations: odor of alcohol, bloodshot eyes, slurred speech and any field sobriety test results.

“That might make a conviction difficult, especially if I don’t have a lot of bad driving, or the person is one of those people who is a chronic alcohol abuser and does fairly well on the field sobriety tests,” Hoy said. “That’s when you say as a prosecutor, ‘I may not even be able to get a conviction. Let’s talk to the defense attorney and say if your client pleads, I’ll recommend this.’ If they say no, they’d rather try it and try to win outright, you have to go for it and hope for the best.”

While Nelson acknowledged that it’s ultimately the client’s decision to accept a plea bargain or not, he noted that a valid breath test isn’t always necessary to obtain a conviction.

“It’s up to the judge that day, and you never know what’s going to happen,” he said. “Sometimes it’s in the client’s best interest to plead guilty to something lesser instead of rolling the dice and getting convicted of DUI.”

Likewise, offering a plea bargain may not always be the best public relations strategy for the commonwealth’s attorney’s office, but it’s certainly preferable to letting a drunk driver walk away without suffering any consequences.

“Police have discretion, prosecutors have discretion and judges have discretion. But trust me, we are not looking to put dangerous people back on the road so they can just continue to drive and create dangerous situations,” Hoy said. “I’m looking at the big picture, rather than just saying I’m gonna take this one to the mat because I want you to be convicted of a DUI. Then I could lose it altogether, and we don’t want that. We want to be able to have a way to put some restrictions on them to keep the motoring public safe.”