SPEAKER_01 0:00

Welcome to Beat the Prosecution, presented by Virginia Criminal Defense Lawyer John Katz, where we are here to regularly present to you information and ideas for beating your prosecution as best as possible. Now your host, John Katz.

SPEAKER_00 0:15

Hello, everybody. This is John Katz, your host of Beat the Prosecution. I'm a criminal defense and DUI defense lawyer in Fairfax, Virginia. This is holiday time. Happy holidays to everybody. We're gonna have some great weather up here in Northern Virginia, going south. It's gonna be a great time to get away. Maybe the Outer Banks, for instance, and let's talk about drinking. I'm gonna tell you, I had my first beer when I was around 13 years old, and I love alcohol. I just haven't used it in a long time because I just decided to move on uh to doing non-alcohol related stuff. Uh, but I'm gonna share with you that the way that I avoided ever getting uh charged with drinking and driving was that by the time I started law school, I realized, well, maybe it's not such a good idea to be getting behind the wheel after drinking. So I seriously curtailed myself to not having more than three to eight drinks a year. And then uh once my son was born, I resolved I'm gonna give him an example of not drinking at all. So I like drinking, it's fun. I think it needs to be done responsibly. So the way I didn't get caught is because by the time I started stopped drinking that much, uh the DWI laws hadn't gotten so crazy that they were so easy on police to be like bear going for um salmon spawning upstream. Here as always with us is Abigail Swigart, my assistant. Abigail, why don't you weigh in?

SPEAKER_01 1:45

Hello everyone. And yeah, I think it's you know, drinking can always be fun, and especially in a social environment, but you know, the knowing the right place, right time, and knowing the laws around it, so you don't get yourself in a little jam.

SPEAKER_00 1:59

Well, speaking of that, we're gonna get to the law and defense in a moment, but since this is a time of holiday cheer, I'm gonna tell you one of my favorite times of drinking. Uh I was drinking underage, I was 17 with uh some friends, uh, and um we were over at uh I was studying for the summer at Cornell University, and um anybody could get in because this was summertime, and each of us had about four or five beers, and they got into a taxi with someone who'd brought us downtown, and he was driving crazy, so I decided I would just go back myself, and I was quite the long distance runner at the time, so I was running up this steep hill after having had five beers, and I felt drunker and drunker and drunker. It was the coolest feeling. And of course, the reason for that, and this gets to the defenses, is the first alcohol will absorb into your bloodstream, and that's what was happening here, is I was running up the hill, the alcohol was absorbing more quickly into the bloodstream, and then it plateaus and then it dissipates. And uh that was real fun, together with the time two years before then that I played one-on-one basketball with my friend. He was a really good basketball player after each of us had five beers. So now into the defenses. Well, one of the best places to find the defenses is to go to our website, catzjustice.com/slash rights, which tells you about your general rights in dealing with the police. And I don't want you to have to need my services, but so many of the people do. And you can contact us at 703-383100, and uh we answer 24 hours a day. And when it's not a human answering, you'll get a call back uh by the next business day at the very latest. Our texting number is 571-4067-268, and our email address is info at beatheprosecution.com. Let's say you're stopped by the police anywhere. The key to know. Well, we actually discussed your rights last time, didn't we? So we're going to graduate beyond that, which is know the power of saying no, the power of not agreeing to searches. So, what do you do when the police officer says to you, I'd like you to do field testing? What do you think, Abby? What's the right answer?

SPEAKER_01 4:19

No.

SPEAKER_00 4:20

Except that you have to know one risk of saying no, which is what?

SPEAKER_01 4:24

They could arrest you.

SPEAKER_00 4:26

Well, there's not just that, but you're it's curious. The Virginia um courts uh appellate courts say that your refusal to do field testing can be considered in deciding whether you're guilty or innocent, but cannot be considered as consciousness of guilt. I don't know how the two go together, but I think it's a lot better just to refuse because a stone sober person can make all sorts of uncoordinated steps, especially with being in the face of police with the power of arrest, a badge, and a gun, and also with cars whizzing by and people may be mocking you uh for being caught with the police, maybe mocking you because they're relieved they didn't get caught by the police. It might be cold out, you might be underdressed, you might be wearing pants that are too tight, the wrong footwear. The whole list goes on. Just don't do those field tests which include checking your eyes, which is junk science. It's all junk science about these field tests to see if your eyes are moving smoothly or not. Uh the one leg stand to to see if you're gonna put your foot down. How many people stand around with their leg extending in front of them? Most people, when they stand on one leg, I don't know, Abby, when you stand on one leg, do you put your foot in front of you?

SPEAKER_01 5:39

Probably never, like holding it up in the air, never.

SPEAKER_00 5:42

And and usually people will put it behind them, right? The the raised leg. And then walking the line back and forth. And then there's this test of uh the uh preliminary breath test, the handheld breath test. So some people might think that they have to take it even when the police say you don't have to. So before being arrested on the street, the police in Virginia have to tell you that you have the right to refuse this test, and that the results cannot be used in court other than for challenging the legality of your arrest, and there are variations on that theme, and also that's to be used on a uh a model of a preliminary breath test approved by the Department of Forensics of Science. They can't tell you how many times I have won DWI trials by keeping these breath tests, these preliminary breath tests out of evidence and convincing the judge that it was not a lawful arrest in the first place. Now, Abby, did you know that I've been trained to do field sobriety testing on people who have been drinking by one of the nation's top trainers to police?

SPEAKER_01 6:44

I feel like we've talked about that, but that would have been an interesting experience to perform the tests on the people.

SPEAKER_00 6:50

It was great. The dedication I had on this was such that before we were out of the woods with COVID so much, I don't know how this happened, but they got the wrong meeting room over at a hotel in downtown D.C. We're all like scrunched together with each other, but uh no one seemed to have caught anything. And Anthony Palacios, who's a trainer over in uh Georgia, trained us on this, and he's a true believer actually in police work. He just says that uh so many police get this wrong, and they do. Let's look at the horizontal gaztagmus test, which is checking your eyes to see if they're moving smoothly versus jerkily, which I make the argument of that doesn't show anything other than presence of alcohol in the body. Invariably, police will just stand parallel to you when doing the uh horizontal horizontal gaze nystagmus test, but when the cop is moving his stimulus, whether it's his finger, a pen, or a flashlight from left to right, he cannot do a straight line if he's standing parallel to you. Did you know that, Abby?

SPEAKER_01 7:50

I did not know that. That's a good thing to know.

SPEAKER_00 7:52

And the reason for that is that the cop is wearing a bulletproof vest. If using the bulletproof vest, it is impossible to do that. The cop would have to stand at an angle to you. Now he can do it. Oh, if any cops are listening, you got a little pointer there that you were probably taught when you learned this, but you just forgot. Okay. Now, Abby, what are your what are your curious thoughts about uh defending DWI that you haven't known already, or that you think that uh the audience might need to know about that they don't know about?

SPEAKER_01 8:25

Would it differ between uh one city over or one county over the types of you know DUI defense or DWI defense?

SPEAKER_00 8:33

Great. Now we're talking about uh defense versus what to do with the cops. Okay, let's go right to that. So when you get arrested for DWI, ordinarily you're gonna be brought in front of a court magistrate, which is a court official, who's gonna decide if you're even gonna be able to get out of jail and get out of jail soon. So in Fairfax, where I'm headquartered, the magistrate typically, if uh they're gonna let you be released pending trial, which is usual, absent anything unusual, uh, will just let you be at liberty pending trial and not limit you to staying inside the Commonwealth of Virginia. But in Northern in neighboring Princeland County, for instance, it is common for magistrates to say you can't leave the Commonwealth of Virginia uh during that time. And that happens in some other counties like Stafford as well. And so after I get hired, I will then have to go to court with my client and ask the judge to amend that. And when the judge makes me happy, the judge will just take that restriction off entirely. When the judge wants to only make me partially happy, the judge will limit leaving the Commonwealth just for work purposes and specified personal purposes. So after that, as far as dealing with the judges and prosecutors, the uh the temper of the judges towards DWI ranges from county to county and from judge to judge, and the approaches of the prosecutors changes from county to county. Uh Fairfax, under their current chief prosecutor, who's been here for almost four years, is a more liberal place to negotiate DWIs often, not always, than under his predecessor, and then in some of the nearby counties. But don't just assume that just because you're in a county with the prosecutor who fashions himself as a chief prosecutor who's uh more progressive, they're gonna get a great result. Just today I was in court with a client who um whose car inexc inexplicably had allegedly hit a house and then driven away and blew a 0.18 into the blood alcohol machine, and uh the prosecutor was not ready immediately to um agree for my client to do a deal that he had no jail time on. Ultimately we got that. Do you know how we did that, Abby?

SPEAKER_01 10:56

You beat the prosecution by fighting hard and throwing out the breath test.

SPEAKER_00 11:01

Well, this is beat the prosecution.com here at our law firm. Uh this was settled through negotiations because even though we had a great judge for trying the case, it was not a shoe on, a shoe in. Uh one of the things that happened is that our client actually followed my advice to do some self-improvement steps. What are our four main f self-improvement steps for DWI?

SPEAKER_01 11:24

Doing driver improvement, like a driver class, um, attending AA meetings, you know, before the court even tells you to. And then do an evaluation for alcohol andor drugs.

SPEAKER_00 11:48

Those are the four biggies in the following order. Go ahead and do a driver improvement class, and if you've been in a serious collision and charge with the significant alcohol content, consider doing a more intensive program that I can tell you about uh when you meet with me. Um get an alcohol evaluation. I've got a program that can do it as inexpensively as $60. They don't like doing evaluations alone, uh, but it is a state licensed program that will do evaluations alone for my clients because I've been sending a lot of my clients to this um company for years, so they don't want to stop uh earning that income stream. Um there's a more uh sophisticated analysis you can get as well, and I can talk to you about that. Uh and then there's well about the evaluation. If the evaluation comes back with a Michigan alcohol screening test score of three or under, then it's easier to characterize you as just a social drinker. If it's a higher level, we can try to work on that, including maybe getting an evaluation from the more expensive program. For AA meetings, you're not saying you're an alcoholic. There's a misperception that to go to AA meetings, you have to say I'm an alcoholic. Well, maybe that's for the closed meetings with sponsors, but I went to an AA meeting to see what I what I've been putting my clients through. They can get depressing, and so that's a good reason enough to argue why uh it's so beneficial to go to them. It means I'm going to be responsible to drinking. You can do that live and online, and I can talk to you about the online um the online features when you meet with me. And finally, with the Mad Victim Impact panel, I was under the impression that that might be a whole bunch of uh screaming and propaganda, but I actually did that. I I did the two-hour online online class. Yeah, they've they've got a um they've got an axe to grind, mothers against drunk driving, but it focuses really on the stories of the survivors and family survivors of uh of severe auto accidents involving allegedly drunk drivers, uh, including fatalities. And what that helps show, and what I'm able to uh explain to the prosecutors and judges, is that uh that is an eye-opener that's worth a lot. And so when we settled the case for today, the prosecutor was not willing automatically just do what's called a standard first uh DWI deal with no active jail, where a 0.18 mandates point mandates five days mandatory minimum jail if convicted of 0.15 or higher, is that he was very impressed that my client had done all these self-improvement steps. And it didn't hurt also that he's 63 years old and I'm able to say his demographic because that he's not likely to do this in the future. And he has plus five points on his license, and that's the best you can get in Virginia. So thanks to you and Rachel for helping me put this case and all our other cases together. I do not get these successes alone without my staff. I really appreciate it, Admi.

SPEAKER_01 14:46

And a willing client to, you know, participate in a self-improvement.

SPEAKER_00 14:50

Oh, yes, he's the poster child for doing that. Many of our clients don't, and some of them say, Well, doesn't that mean I'm guilty if I do self-improvement? I say, Well, the prosecutor probably assumes you're guilty if the prosecutor has not dismissed your case, and uh the judge is not going to know about your self-improvement steps without um there being a conviction first, so you've already been convicted at that point. Now, getting back to the holiday cheer part. I want you to have happy holidays. So, Abby, how can someone have happy holidays and happy drinking and still not get arrested and convicted?

SPEAKER_01 15:28

Well, you can either take ride shares or have someone else drive you if you want to completely take it off the board that anyone's gonna pull you over and just call up Uber, or I guess you don't call him up, I guess you go on your phone. Um, or you just stick to a certain amount of drinks, drink with water, you know, drink responsibly, and don't get in the car if you feel like you're you know, had too many.

SPEAKER_00 15:54

That's right. Now, I will throw a wrench in the engine and tell you that even if you're getting happy in a bar and not getting behind the wheel, you still risk being charged with drunk in public because the definition of intoxicated or drunk in Virginia is a watered-down definition, which is having cons having consumed enough alcohol to noticeably affect your appearance andor behavior. It's non-jailable, so it's not as big a deal, but people don't want to have alcohol convictions, especially if it might violate their probation or parole, especially if they have security clearances. So I'm here to help you with all that. So I want you not to need my assistance. Uh, and maybe your having listened to this talk will help you avoid needing that. But if you or your friends need that assistance, I'm here to help you. Abigail, where do people reach us?

SPEAKER_01 16:44

Um, CASJustice.com if they want to learn more, or you can give our office a call at 703-383-1100. Um you can also email us if that's easier. We do info at beatheprosecution.com on order. And our texting option is 571-406-7268. And so, you know, if people need your services, how soon should someone call a lawyer up or, you know, start that ball rolling?

SPEAKER_00 17:18

The sooner you get a lawyer the better, but don't hire the first lawyer you talk to. Give yourself a chance to compare and contrast them. Uh ordinarily I can meet with you within one business day of your calling here, except for when I'm on vacation, which is usually only uh around this time of year, the last week of December, and also uh during part of the summer. But otherwise, I'm very available. My staff's working uh while I'm away. They're gonna still have their holiday uh cheer on their own schedules. It's as easy as that. Uh, don't wait too long because the prosecutor and police are not waiting uh for you to get a uh a lawyer. They're gonna already be working on the case. And one of the things that really concerns me is that when a defendant has waited really long to get a lawyer, sometimes they'll receive a notice in the mail from the prosecutor of an intention to introduce their breath or blood test results at trial without even needing witnesses. And if you don't make sure for yourself or a lawyer you hire to file an objection to that timely, uh be ready for a lot of discomfort.

SPEAKER_01 18:23

That's good stuff to know, you know, after the fact and before the fact as well. So you're ready if if this ever occurs to you or someone that you love.

SPEAKER_00 18:34

Yes. Um, well, Abigail, uh, you're the person who produces these podcasts. This is podcast number two. I really appreciate it a lot. I am endeavoring to give you podcasts at least two to four times a month. If you have any topics you would like to be covered, if you think that there are any people who are worthwhile interviewing. Oh, I'd love to interview the chief of police in Fairfax or anywhere else, for instance, for this podcast, because there will be no holds barred in those questions. Uh, any topics you're interested in, just let us know. I look forward to getting back to you on our next show. Once again, this is John Katzer, host of Beat the Prosecution at beatheprosecution.com. Thank you.