DRIVING DRUNK IN “THE DMV”: Virginia Judge Rules DUI Statutes in DC and Virginia Are Not “Substantially Similar.”

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By: Trevor D. Anderson, Esq.

On Friday, January 10, 2014 the Honorable Dennis Smith, Chief Judge of the Fairfax Circuit Court granted a defendant’s motion to dismiss his felony DUI 3rd based on the fact that the prosecution was seeking to use a 2010 DWI conviction in the District of Columbia as a predicate offense for purposes of enhancing what would otherwise have properly been indicted as a misdemeanor DUI 2nd. The ruling helped to add some clarity to what has traditionally been a complicated and rarely litigated area of DUI law in the Commonwealth of Virginia.

According to Virginia Code Section 18.2-270(E), Virginia allows for penalty enhancements on second and third DUI offenses so long as the prior convictions were based upon another state’s or jurisdiction’s law that is “substantially similar” to the provisions of Virginia Code Section 18.2-266, which sets forth Virginia’s own DUI statute.

The defendant’s attorney, Thomas Silis, argued that, at least in 2009, the D.C. and Virginia statutes were different for a number of reasons, but most clearly with regards to the sections setting forth a rebuttable presumption of intoxication when the defendant’s blood alcohol concentration is validly determined to reach a specific level. Mr. Silis pointed out that according to Va. Code § 18.2-266:

“it shall be unlawful for any person to drive or operate any motor vehicle, engine or train while such person has a blood alcohol concentration of 1) .08 percent or more by weight by volume; or 2) .08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article; or 3) while such person is under the influence of alcohol.”  

Conversely, D.C. Code § 50-2201.05 (b)(1)(A)(i) states:

“No person shall operate or be in physical control of any vehicle in the District when the person’s alcohol concentration at the time of testing is 1) .08 grams or more per 100 milliliters of blood; 2) .08 grams or more per 210 liters of breath; or 3) .10 grams or more per milliliters of urine; or 4) while under the influence of intoxicating liquor or any drug or any combination thereof.”

The key component of the defense’s argument hinged on a distinction made in Cox v. Commonwealth, 13 Va. App. 328 (1991). There, the Virginia Court of Appeals held that the best way of analyzing “substantial similarity” was to examine whether or not the defendant’s criminal conduct in the foreign jurisdiction would have likewise been deemed criminal under Virginia’s comparative statute.

Based on a clear reading of the statues being compared in this case, it was apparent that D.C. identified two ways of measuring blood alcohol concentration that were found nowhere in the Virginia statute. It followed then, that one may be found guilty of DUI in D.C. and not Virginia if his or her blood alcohol concentration was measured via testing either urine or blood, considering that both tests are neither identified nor allowed for in Virginia.

The Court agreed with this analysis and stated that even though one of the ways of determining blood alcohol concentration was the same in both jurisdictions (.08 grams or more per 210 liters of breath) that single similarity was not enough to overcome the serious differences concerning the other two methods of measurement.

To date, this ruling represents something of a benchmark in Virginia DUI jurisprudence. While case law has establish that the DUI laws of many of Virginia’s neighbors such as West Virginia, Maryland, Tennessee and Georgia are substantially similar to our own, there has not yet been a single ruling from the Virginia Court of Appeals that establishes a bright-line rule regarding the potential similarity between the DUI laws of Virginia and D.C.

While this case does not in and of itself represent settled law concerning the comparison of these two statutes, it is the only known decision where a Virginia Court has held that these two individual statues do not substantially conform.

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For information and a free consultation regarding your criminal case, feel free to contact our office at: 703.706.0075 or, use our  online contact form to submit a question or request an in-office consultation. We are located near the intersection of King St. and South Alfred St. in Old Town Alexandria, at:

113 South Alfred St. Alexandria, Virginia 22314

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SENTENCING: The Importance of Detailed Preparation

by: Trevor D. Anderson, Esq.

One of the most overlooked phases of the criminal process is the sentencing hearing.  On countless occasions I’ve walked into courtrooms to witness defense attorneys hurriedly glancing through their client’s pre-sentencing report, obviously for the first time.  When they finally step up to counsel’s table what often follows is an abstract overview of their client’s record accompanied by a litany of excuses and a brief word of apology.  Needless to say, the presiding Judge is rarely moved by such a presentation.

The key to obtaining leniency is not simply in persuading the Judge, it is in framing your client in such a way so as to allow for the Judge to persuade him or herself into granting your client leniency.  The best way to accomplish this is by approaching the hearing in two steps: First, you want to introduce your client to the Judge in a very personal way. You want the Judge to feel as if they know this person, and can somehow relate to them. You want the Judge to feel a sense of sympathy and begin looking for reasons to lessen the potential punishment. Secondly, you want to provide those reasons.  Conduct a factual analysis of the crime itself and, without denying guilt, point to specific mitigating factors which the Judge should consider in determining a final sentence.

Step 1: Creating a Profile

The first thing a criminal defense attorney should do after their client has been convicted (even before preparing an appeal) is to discuss the importance of the pre-sentence report (PSR) with their client.  Often, the PSR is the only thing that the Judge and the Prosecutor will review before the sentencing hearing and for many defendants, the contents of that report will ultimately result in their sentence being decided before the hearing even takes place.

Typically, in preparation of the PSR, a probation officer will interview your client and take careful note of his or her version of the incident leading to their arrest.  They also usually question the individual about any criminal background that has been meticulously documented in the report.  Encourage your client to use this interview process to their advantage.  Thoughtful and detailed answers, in addition to offering a sincere apology can go a long way in influencing the interviewing officer’s official sentencing recommendation.  Recently, our firm handled the sentencing of a man convicted of distribution of a schedule II narcotic in the Circuit Court of Fairfax County. His prior criminal record was extensive and included eleven prior felonies.  Needless to say the sentencing guidelines called for an extensive period of incarceration, however based, in part, on our client’s performance during the pre-sentence interview, the officer who prepared the PSR did not formally recommend incarceration and instead suggested that probation may be appropriate.

The next step in developing a sympathetic profile of your client should include assembling a group of witnesses who can testify on behalf of your client.  This often includes friends, family and coworkers, each of whom can offer a slightly different perspective of your client’s good character.  By way of example, our firm recently represented an individual who had been convicted of malicious wounding.  While he did not have a long record, his answers to the presentence interview included a version of events that basically read as follows: “There was a fight and someone got hurt.” Clearly this statement didn’t do much to garner him any support from the interviewing probation officer.  Nevertheless, we proceeded to put a number of witnesses on the stand, and carefully tailored our questions to elicit a different perspective from each one. One person testified about his role as a father and a provider, one testified about his hard work ethic, and one testified about his calm temperament and non-violent personality. The common theme that connected each witness however was a narrative that framed this criminal behavior as being extremely uncharacteristic of the man that they each knew in a very different and personal way.

Step 2: Mitigation

Once the stage has been set, so to speak, and the defense attorney has done his or her best to present a window into the soul of their client, they should focus their closing argument on any and all mitigating factors present in the case. This is the attorney’s last best chance to convince the Court to deviate from whatever the sentencing guidelines may call for.

In the drug distribution case noted earlier, we spent a considerable amount of time focusing on the fact that while our client admitted to selling a narcotic to a specific individual, he never once sold drugs to anyone else.  We highlighted the fact that drug distribution charges are meant to curb the flow of illegal narcotics in society, and through a factual analysis we demonstrated how our client had never substantially operated within the local drug marketplace nor acted as a part of a larger criminal enterprise.

In the malicious wounding case, a key component of the Commonwealth’s argument for a lengthy sentence was the fact that a firearm was used in the commission of the crime.  We attempted to counter that argument by presenting evidence and allowing our client to speak to the fact that he had never before owned a gun, possessed a gun, nor did he associate with anyone who did own or possess guns.  While he admitted to using a gun in this specific incident, he described his actions as a “one time deal,” brought on by sudden rage after being beaten by the victim.  In this instance, the Court agreed that our client did not have a history of violent or gun related behavior and ended up deviating to the low end of the guidelines.  This was a considerable victory considering that the Commonwealth had been pushing for at least an additional year of incarceration in the state penitentiary.

While following this two-step method helps defense attorneys to frame their argument for sentencing, perhaps the most important tactic to employ at the actual hearing is: sincerity.  Always remember to be candid with the Court and encourage your client to close the proceeding by offering a clear and concise apology.  Let them know that it is important for them to convey not only remorse for their actions, but to present a clear message to the Court detailing their plan for rehabilitation once released.  Have them highlight the network of family and friends that stand ready to support them and help them overcome the behavior that led them before the Court in the first place.

For information and a free-consultation, regarding your criminal case, feel free to contact our office at: 703.706.0075

or, use our online contact form to submit a question or request an in-office consultation. We are located near the intersection of King St. and South Alfred St. in Old Town Alexandria, at:

113 South Alfred Street Alexandria, Virginia 22314