In the Washington, DC criminal justice system, a common scenario occurs where an individual gets pulled over by the police, arrested for DUI, and charged with two cases. This scenario occurs when someone gets pulled over, the officer arrests the person for DUI, and later finds drugs in the vehicle—regardless of whether the drugs belong to the person arrested. In this situation, the government will use the drugs found as evidence of impairment for that drug and can also charge you with a separate crime for drug possession. If the drug is marijuana, there can be a slight difference in the case. Because the DC City Council has legalized possession of small amounts of plant marijuana, its possible that the only charge would be DUI where an officer finds marijuana or marijuana paraphernalia in the vehicle and does not have the ability to initiate a separate charge for possession of marijuana.
Two Charges – Two Cases
In most jurisdictions, that person would get charged for two crimes: drug possession and DUI. In DC, however, the person will not only get two charges but have two criminal cases against them. Two separate law enforcement agencies will prosecute each case. The DC Office of the Attorney General will prosecute the DUI, and the United States Attorneys’ Office for the District of Columbia will prosecute the drug possession charge. It is common for one set of facts to lead to a prosecution for two separate charges in a single case. But DC criminal law is unique that the same set of facts can lead to prosecution for two separate cases.
That means a local prosecutor will handle the DUI and a federal prosecutor will handle the drug charge. In most jurisdictions, the same prosecutor would handle both charges which would likely lead to a plea offer for a “one for one” where the client pleads to one charge and the government dismisses the other. However, because of DC’s unique status as neither a state nor county, people who get arrested in this situation find themselves dealing with two different prosecuting agencies, each with its own sets of policies, rules, and, frankly, agenda. Without an experienced DC criminal defense lawyer, someone in this situation could find themselves convicted of both crimes in both cases. They could lose their license, lose their job, be put on probation, or even go to jail.
DC Office of the Attorney General
The DC Office of the Attorney General is a local agency funded by the DC City Council. DC criminal law is written in such a way that this office only has jurisdiction over traffic crimes—although they also have jurisdiction to prosecute certain gun crimes like unregistered firearm and unregistered ammunition. In fact, DUI and DWI crimes are the most serious crimes that this office can prosecute. Because of their limited jurisdiction, the DC Office of the Attorney General treats DUI and DWI cases like murder cases because it’s the most serious crime they have jurisdiction over. Its also rumored that the office receives federal funding from NHTSA based on the amount of DUI arrests and prosecutions that occur. As a result, there are very limited options other than plea or go to trial with usually only one potential option for diversion-a Deferred Sentencing Agreement (or “DSA”). DSA’s are only offered in limited cases, however.
The United States Attorney’s Office
The United States Attorney’s Office for the District of Columbia is a federal agency and part of the Department of Justice. The good news is that it has relaxed its requirements for pretrial diversion (programs where defendants complete community service and other requirements in exchange for dismissals of their case). In addition, in some cases, it may be possible to get into one of the community courts for one or both cases. DC Superior Court has two separate diversion community courts—one for mental health treatment and one for drug treatment.
Under local District of Columbia law, possession of small amounts of plant marijuana has been legalized. That means that the Metropolitan Police Department may no longer arrest individuals for possession of marijuana so long as its an amount under the legal limit. The law made other significant changes to the criminal justice system including prohibiting police officers from using the odor of marijuana as probable cause to search an individual or their vehicle. However, the law left in an exception on cases where individuals are suspected of driving under the influence of marijuana.
That means while an officer cannot use the odor of marijuana to search one’s vehicle, they may use that as a basis to ask someone to step out of the car to investigate them for driving under the influence. While the Standardized Field Sobriety Tests are not geared towards ascertaining whether an individual is under the influence of marijuana, police will still likely use them that way. In addition, case law from the DC Court of Appeals is pretty bad on DUI drug, including marijuana, issues. Cases have stated that officers do not need to be a “drug recognition expert” to determine whether someone is under influence of a drug. In fact, cases have even stated that the officer need not tell which drug the person is under the influence of to sustain a conviction for DUI drug.
Hiring a DUI Drug Attorney
It is extremely rare in this scenario that one prosecutor will dismiss one case for possession of a controlled substance even if the accused pleads in another case—the DUI for example. Therefore, its important to hire a tough, smart DC criminal defense lawyer who is not afraid to try cases that can handle both the drug charge and the DUI.
If you are arrested for a criminal charge, including DUI, drug possession, or both contact Scrofano Law PC for a consultation and evaluation of your case. We can help you navigate the legal system and help you provide a strong defense to the charges.