In Virginia, most DUIs are class 1 misdemeanors where the maximum penalty is up to 12 months in jail and/or a fine of up to $2500. In addition, an individual convicted of a DUI must lose their license for 12 months and attend mandatory alcohol education (ASAP) classes. A restricted drivers license is often allowed, but only upon installation of an ignition interlock device.
If this is your first DUI, and there was not an elevated blood alcohol content (BAC) or an accident resulting in injury, it is highly likely that a conviction will not result in any active jail time. A conviction does, however, result in expensive court costs, ASAP fees, increased insurance premiums and can negatively impact such important areas as security clearances, child custody determinations and immigration status.
A DUI conviction also sets a necessary condition for mandatory incarceration upon a subsequent conviction within 5 or 10 years, or new charges if you drive outside of the limitations of a restricted license.
Most DUI charges involve a blood alcohol content of at least .08. It is important to note that you can be charged with a DUI if your BAC is less than .08, or if there is no blood alcohol result because of a refusal to blow into the breathalyzer or other circumstance. If you are charged with a DUI with an elevated blood content you face the prospect of mandatory jail time. A conviction of a DUI with a BAC of .15 to .2. results in a mandatory minimum period of 5 days of incarceration. Any BAC above .2 results in mandatory minimum period of 10 days incarceration. If you have had a prior DUI conviction within a 10 year period with an elevated BAC, these periods of incarceration are even higher.
There are many defenses to a DUI charge. Examples of successful defenses have included (1) No basis to stop the driver of the car, (2) No probable cause to arrest, (3) No implied consent as the driver was not on a public road, (4) The driver did not provide consent, (4) No proof that the driver was intoxicated at the time of driving. Each case is unique and each case requires a detailed understanding of the facts and what the Commonwealth Attorney can prove. For this reason you need an attorney with experience in this area, the experience that we have.
We believe that an informed client is best able to assist in their own defense. There are many possible strategies for a defense against a DUI charge, so the following information is provided as a framework of what to look for and what facts to consider in each individual case.
One of the first things your defense attorney may ask you is “why were you stopped”. In order to stop a driver, police officers need reasonable articulable suspicion, or probable cause of a crime or traffic infraction.
Often a DUI charge results from a stop for a traffic infraction such as driving over the speed limit, failure to maintain the lane, failing to come to a complete stop at a stop sign or having an object dangling from your rearview mirror.
In other cases the police officer may claim that your driving behavior provided a basis for the stop. This could include weaving or erratic speed.
In each case it is important for us to interview the client and any passengers, review any available video, as well as visit and photograph the area where the stop occurred to understand if there is a legal challenge for the basis of the stop.
Challenging the stop takes the form of a motion to suppress. In this motion we argue that the police officer did not have a “reasonable articulable suspicion” or “probable cause” to believe that a law had or was being violated. If the judge grants the motion, often times the prosecutor choses to “nolle pros” the charge, and in most instances the charge is never brought back. This means you won.
Of course, the police officer may not stop you. For example in the case of an accident the police officer will interview individuals involved, or you may have fallen asleep in your car, in which case the police officer can approach you as a part of their “community caretaker” function, or you are idling and the police officer approaches you and “asks to speak to you”. In these cases, although there may not be a motion to suppress the stop, there may be a motion to suppress your arrest, based upon a lack of probable cause.
The police officer, once he or she asks for your driver’s license may report that they smelled a “strong odor of alcohol” and that the driver had a “disheveled appearance” or “slurred speech”. These are all common key words that you may see in a subsequent report that form the basis for the police to detain you and investigate further. Thereafter the police officer will ask you to conduct some field sobriety tests. These typically include:
- The nine step walk and turn
- The One legged stand
- The Horizontal Gaze Nystagmus Test (i.e. involuntary eye movement when following an object).
Although voluntary, most people try to take the field sobriety tests. Thereafter, the police officer will ask you if you would agree to take a preliminary breath test, explaining that the results cannot be used as evidence against you. While this is true, a breath test result will be used a probable cause for your arrest, and if requested properly, limits your ability to challenge the arrest through a motion to suppress.
Based upon the results of the field sobriety tests and/or primarily breath test the officer may determine that they have probable cause to arrest you. Many police cars have cameras (dash cams) and we will review any information to determine is we have a legal basis to challenge the arrest and determine is what is in the police report matches what occurred in the videotape.
Once the police officer arrests you will be handcuffed and be transported to booking. Remember, that there is often a camera that records the back seat of the police cruiser. Accordingly it is important not to say anything and to act normally during arrest and transport.
The Breath Test
Upon arrival to the police station or detention center, the police officer will read you the “implied consent statute” which means that, because you travel upon the public roads of Virginia you consent to a breath test upon a valid arrest. If you do not take the test, you will likely be charged with refusal, which means that, if convicted you will lose your privilege to drive for one year without the possibility of a restricted license. Additionally, you will also likely be charged with the DUI. If you have had a prior DUI or a prior refusal conviction, a refusal may be charged as a class 1 misdemeanor. Upon a refusal the police may also opt to seek a search warrant to conduct a blood draw, usually transporting you to a local hospital.
There are certainly legal challenges to the results of a breath test, however, overtime the improvements in the certification process and quality control of the machines has limited the success of these challenges.
There are many defenses to a DUI charge. Examples of successful defenses have included:
- No basis to stop the driver of the car
- No probable cause to arrest
- No implied consent as the driver was not on a public road
- The driver did not provide consent
- No proof that the driver was intoxicated at the time of driving.
Each case is unique and each case requires a detailed understanding of the facts and what the Commonwealth Attorney can prove. For this reason, you need an attorney with experience in this area, the experience that we, at Sparrow Miller PLLC, have. Call today for a free 30 minute phone consultation.