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What Causes False Breath Test Results?

By , March 28th, 2019

All breath tests used in the Criminal Justice system work on basically the same principle. A sample of a person’s breath is introduced to the electrochemical cell and the alcohol reacts with the cell to produce electricity. The breathalyzer measures the amount of electricity produced and uses a mathematical formula to convert that to an estimated blood alcohol level.

These breathalyzers are used at the police station to test drunk drivers, on the side of the road to justify arresting someone for DUI, by probation officers screening offenders, in ignition interlock devices installed in the vehicles of person’s convicted of DUI and in many other situations as well. All of these machines work on the same basic principles and are (to some degree) vulnerable to the same problems.

Breathalyzers measure minute amounts of alcohol in a subject’s breath and are extremely sensitive. Exposure to even trace amounts of alcohol can trigger a result. That is why trace amounts of alcohol in your saliva, on your skin or in the air can trigger or elevate alcohol readings.

Mouth alcohol is a term used to define, alcohol that is trapped in your saliva, mouth or throat rather than your blood. After you consume alcohol there is a significant amount of alcohol trapped in your saliva for up to 40 minutes after drinking. If a person blows into a breathalyzer during this 40 minute window then the machine will measure the alcohol in the saliva and add that to any blood alcohol reading. Wearing dentures, braces, chewing gum, retainers ect. are all items that can trap mouth alcohol in your mouth for longer than the 40 minutes period.

Mouth alcohol sources include: Drinking alcohol, using alcohol based mouth washes, or eating items that contain trace amounts of alcohol such as processed breads (white bread or honey buns), fruit cups, vanilla extract and some juices. If you would like to see a video where we test foods and measure their affect on a breathalyzer check out this video.

Burping, belching, vomitting, GERDs, acid reflux ect. can all effect a breathlayzer by introducing stomach alcohol. Breathalyzers are designed to detect faint traces of alcohol in your breath, the fumes from alcohol in a person’s stomach are much more potent then the fumes in your breath. If a person burps, belches, vomits or regurgitates after consuming alcohol, those more potent fumes will be introduced into their breath sample and increase the breathalyzer results.

Acid re-flux, GERD’s and other medical conditions can increase the chances that stomach fumes are being released into the esophagus and thus into the breath. This can happen without a person being aware that it is happening, unlike burping or vomiting where you can feel it happening. Burp, belching, regurgitating, vomiting,  GERD’s, Acid re-flux ect will only affect a breathalyzer if there is alcohol inside a person’s stomach. This condition will not affect readings unless a person has been consuming alcohol recently.

Ambient alcohol is alcohol that gets introduced into the breathalyzer from the air. When these products get used on your skin or in the air around you, the alcohol can evaporate and be introduced into the breath sample. This can be from many difference sources including alcohol based windshield washer fluid, hand sanitize, sunscreen, various cosmetics and aerosols. Check out this video where we demonstrate how various cosmetics create false readings on a breathalyzer.

Breathalyzers will measure many different types of alcohols including ethol alcohol, methanol, denatured alcohol and even some other chemicals. While most of these types of alcohols are poisonous and are not likely to be found in mouth alcohol, they are common in ambient alcohol situations. There may even be some other non-alcohol chemicals that create false positives, like the chemicals found in Banana Boat Cool-Dry Sport Sunscreen.

Breathalyzer tests at the police station (like the EC/IR II) have many checks and procedures designed to catch or limit the affect of these false readings. However, the portable breath tests used by police and ignition interlock tests do not have most of these safe guards and these tests are particularly vulnerable to these types of false readings. 

If you have been charged with crime in Northern Virginia, contact Nichols & Green Pllc to find out whether any of these defenses or issues may apply in your situation.



How to Beat a Virginia Traffic Ticket

By , April 14th, 2016

How to Win in Traffic Court

Not everyone can afford an attorney and hiring an attorney doesn’t make sense in every case, so if you are representing yourself in traffic court here in Virginia, here are some tips to help you get what you want.

1)      Read the law that you are accused of break. On your summons there should be a place where it tells you a description of the law you are accused of breaking and the code section for that law. Look up that code section online and read it so you can know exactly what the law allows or doesn’t allow. Every day, people come to court to argue their tickets when it is obvious that they do not understand what they are accused of doing. This waste everyone’s time, including their own, and in the end the judge just ignores them because their arguments are irrelevant. Make sure you read the law and know what law you are accused of breaking.

2)      Get a free consultation. Most traffic attorneys will do a brief free consultation so before going into court by yourself, talk to a professional to get an idea of what the courts might do and what strategies might help. Attorneys can also help you avoid common mistakes. For instance, in Virginia speeding can be a criminal jail able offense, and many people don’t realize that until it’s too late. So get a free consultation. If you are charged with a criminal or traffic matter in Northern Virginia, call us at (703) 383-9222 for a free consultation over the phone.

3)      If you have a good driving record, bring a copy of that record to court, especially if you are from out of state. The court usually does not have access to out of state DMV records, so bring your good record to court to show off.

4)      You can do trial by letter for minor tickets. If you can’t make it to traffic court most jurisdictions in Virginia and other places will let you  write a letter to the judge. This works well with “fix it” tickets. So for example, if you get a bad brake light ticket, go get the brake light fixed and mail a copy of the receipt to the judge with a picture of the fixed tail light and a very short letter explaining the situation to the judge. Most judges will dismiss the ticket or dismiss it with court costs based on the documentation that you sent them.

5)      Don’t leave your evidence in the car or keep it on your phone. Most courts in Virginia will not allow cell phones in the building and the judge usually will not give you an opportunity to run out to your car to get something. If something you need isn’t with you at the podium, then you are usually out of luck.

6)      Find out whether or not your case will be assigned a prosecutor and talk to the prosecutor as soon as you can. Some courts assign prosecutors to traffic cases, some do not. Some only assign prosecutors to cases with attorneys. Others have the officer act as a prosecutor. Some courts have no prosecutors at all and the officers are not allowed to act as prosecutor. Call the prosecutor’s office up and ask them whether or not they assigned prosecutors and when those prosecutors are available to discuss traffic cases. If you don’t like what the prosecutor offers you, then simply take your case directly to the judge instead.

7)      Trying to get a continuance to see if the officer doesn’t show up, rarely works in Virginia. In Virginia, officers are assigned one day every month or two to prosecute all of their cases. If an officer doesn’t show up to court, it’s not just your case that is gone, but a month or two worth of work. Officers can be charged with criminal contempt of court for failure to show up and I have seen officers served warrants for not showing up. An officer can lose their jobs or hurt their careers for blowing off a single court date. If an officer is sick or injured or delayed getting to court because of police business their supervisor calls the court and gets their cases moved to their next court date. Typically, cases will only be dismissed if the officer is no longer with the police force. This happens less than 1% of the time.

8)      Don’t tell the court to correct your date of birth or your name or your driver’s license number. When officer’s and clerk’s put your information onto a summons or into the court system, sometimes they make mistakes. After your case is over, your information is forwarded to your state’s DMV to be recorded on your DMV record. If an officer gets your driver’s license number, name, date of birth or other information wrong that will make it hard for the DMV to know whose record the ticket belongs on. In Virginia, these kind of typos are not defenses and do not affect the outcomes of most cases, so by pointing them out to the court, all you are doing is helping the court make sure that this ticket ends up on your record.

9)      Know what the judge has the power to do. In Virginia judges have no control over how many demerit points are assigned to a ticket, in Maryland judges sometimes can choose how many points to give a driver. In Prince William County, judges have the ability to offer driving school in exchange for a dismissal of a ticket, in Fairfax County the judges do not have that power. In Virginia, HOV tickets have mandatory fines that the judge must enforce. So before you go to court and ask the judge to do something, make sure that the judges have the authority to give you what you are asking for. If what you are asking for is something unusual, find the case or statute that gives them the authority to do what you are asking and print off a copy and bring it to court to give to the judge.

10)   If you are going to quote case law or statutes, print it off and bring it to court. Judges don’t have a lot of time in traffic court to stop everything and do legal research. So if you are going to quote laws or court opinions, bring copies with you to court to give to the judge to read. If you don’t the judge may just ignore it.

11)   Understand what laws and cases govern the court you are in. In our legal system laws only have power in certain jurisdictions. For example: Ohio law has no power in Virginian courts and Virginia law has no power in an Ohio court. Likewise, the opinions of a Maryland Court are not binding on a Virginia court. For the most part Federal laws and federal cases (except for the US constitution and federal cases interpreting the US constitution) do not have any authority over state or city courts. Also, unpublished court opinions do not have any legal authority in Virginia courts. If you are going to quote laws and cases in court, you have to understand these rules well or you will be wasting your time.

12)   Your behavior and appearance matter. If you are trying to convince a judge that you are telling the truth, that you are a good person, that you are a responsible driver, then dress like it and behave like it. Dressing up and being polite won’t win your case, but being sloppy or rude can hurt it.

13)   NEVER lie to the court. You have a right to remain silent, but lying under oath is a crime and a bad idea. No situation is so bad that it can’t be made worse by being caught lying to the judge.

14)   Understand how trials are done. In Virginia the police officer or prosecutor get to tell their side of the story first, after they are done, you get to just ask them questions only. Then you get your chance to tell the court what happened (only if you want to) and then the officer or prosecutor get to ask you questions if you choose to speak. If the judge finds you guilty, then you repeat the process more informally and quickly with evidence related to punishment.

15)   Get to the point very quickly!!!! In Fairfax County, one judge has to hear about 200 traffic cases in 5 hours. That means that the judge has only slightly more than a minute per case. If you ramble and go off topic most judges will shut you down for the sake of everyone else waiting their turn. So get to the point as quickly as you can, while you still can!

16)   Write down your story and read it to the court. Traffic court is not drama club, simply communicating effectively is more important than being a good orator. Write your thoughts down beforehand so that you can be quick, clear and to the point.

17)   Understand the difference between mitigating evidence and a defense. A defense is an argument or evidence that you are not guilty of a crime. Mitigating evidence, is evidence that you should be shown mercy despite being guilty. Present mitigating evidence after you have been found guilty and present defenses before you are found guilty, not the other way around. So for instance. Saying “The officer’s radar device was not calibrated!” that is a defense. Saying, “My speedometer was broken so I didn’t realize I was driving that fast.” That is mitigating evidence. So don’t present the speedometer evidence before you are found guilty, but instead do it during sentencing. And don’t argue about the calibration after you are found guilty and while the judge is deciding your punishment, talk about the calibration during the trial.

18)   Choosing whether to plead Guilty, Guilty with explanation, Not Guilty or No Contest. No Contest means Guilty in Virginia so really there are only two choices “Guilty and Not Guilty”. If you plead guilty there will be no trial and you will not be giving an opportunity to present defenses. “Guilty with explanation” is basically just a guilty plea where you plan on arguing your punishment. Judges rarely ever “punish” people for putting on a well thought out and respectful defense. As long as you are not rude or dishonest during your trial you will rarely be penalized for choosing to fight your case.

19)   Accident cases get continued. Most jurisdictions in Virginia will not do a trial on the first court date if the case involved an accident or requires civilian witnesses. If you were ticketed because of an accident or if the officer wants to bring witnesses to court, most of the time the court will not have a trial on the first court date. Instead, if you plead Not Guilty on the first court date, the judge will then continue the case to give the officer or prosecutor a chance to bring the witnesses. So don’t be surprised if you wait all day in court and then have to come back again.

20)   Go to traffic court and listen. You’ll hear similar cases over and over again and quickly get a feel for your judges. You can learn a lot from spending a day watching traffic court.

21)   Appeals. In Virginia, If you don’t like the outcome of your traffic case you can appeal the General District Court’s decision to a new judge in Circuit Court within 10 days of the trial. You will be given a new judge, a new court date, and a new trial. The second judge will not know or care about what happened in the first trial. Your appeal is a complete do-over. If you have missed your 10 days window to appeal you can file a motion to rehear the case within 60 days instead.

22)   If you miss your court date on accident or show up late to court, you can file a motion to rehear the case. Tell the judge why you missed your court date and the judge may place your case back on the docket and let your case be heard. Judges are more likely to reopen your case if you plan on just pleading guilty. So for instance. If you were found guilty in your absence of expired registration, and you have proof you fixed the registration, you can do a motion to rehear the case and bring proof that you got your car registered. Show the proof to the judge and he or she may dismiss the charge right then rather than set the case on the officer’s next court date.

Well I hope these tips were helpful, if you have a criminal or traffic case pending in Northern Virginia and you would like a free consultation, call Nichols & Green pllc for a free consultation at (703) 383-9222 or contact us online by clicking here.

Reckless Driving Defenses

By , April 12th, 2016

Reckless Driving Defenses

There are 15 types of reckless driving cases in the Commonwealth of Virginia so there are many different reckless driving defenses.

About 75% of all reckless driving cases are for speeding under Va. Code 46.2-862. General reckless driving under 46.2-852 is the second most common type of reckless driving. Reckless driving for improper control/faulty brakes, and reckless driving for passing a school bus are the third and fourth most common forms of reckless driving.

Reckless Driving By Speed Defenses

With reckless driving by speed cases, there are generally two strategies we use to avoid conviction. The first is to attack the evidence and the second is to explain why our client doesn’t deserve such a harsh conviction.

Attacking the evidence can take many forms but generally involves attacking:

  • Whether the speed measuring device was calibrated and working accurately
  • Whether the officer has proof of calibration in the proper format
  • Whether the officer used the speed measuring device properly, and
  • Presenting evidence of innocence.

Most speed cases involve radar, lidar or a pace. All three types of speed cases involve an officer relying on a machine to provide evidence. When the police want to present evidence produced by a machine like a speedometer, or a radar device, or a lidar device, then the officer must prove that the machine was working correctly. Officer’s use the accuracy checks and calibrations to prove that a device was accurate.

Some calibrations or accuracy checks are performed by the officer who wrote the ticket, others are performed by technicians or other police officers. If someone other than the officer on your case, calibrated a piece of equipment, then the officer needs to have a calibrations certificate. Without the calibration certificate, the officer may not be testify that the machine is accurate, and if they can’t testify about the machine’s accuracy then the speed measurement results may not be admissible either. Most of the time, you will win the case if the officer doesn’t have proper calibration certificates.

Radar, Lidar and Speedometer Calibration Certificates

Va. Code 46.2-882 is the code section that governs when a calibration certificate is admissible in court for radar and lidar cases.  Va. Code 46.2-942 is the statute that governs the admissibility of speedometer calibrations. If any officer wants to submit his calibration certificates, those certificates must obey the rules found in those laws.

Lidar and Radar calibration certificates must be: Either originals or “true copies”. A true copy is a photocopy that includes a sworn statement from the custodian of the certificate, swears and affirming that the attached copy is a true copy. True copies must be notarized.

Lidar and Radar calibration certificates are only valid if the tests were performed within 6 months prior to the offense. If the calibration was more than 6 months old, then the certificate is invalid.

Speedometer calibrations need to be a sworn report and they are only admissible when the driver is accused of breaking the maximum speed limit. Speedometer calibrations are not admissible in reckless driving general cases, or passing a school bus cases for instance.

When the Officer Calibrates his/her Own Device

When an officer performs their own calibration or accuracy tests, the officer does not technically need a calibration certificate because they have first-hand knowledge about how the device was tested and the results of that test.

However, this first-hand knowledge opens the officer up to being cross-examined about the methodology that they used to check the accuracy of the radar device. Whether or not the officer performed the calibration test correctly and whether they can remember how they did the test become very important.

Reckless Driving Defenses from Officer Error.

Measuring the speed of driver’s in the real world is difficult. It takes a lot of training and experience before an officer is qualified to write tickets for speed offenses. This training is so important because there are dozens of ways that an officer can produce inaccurate results while measuring people’s speed.

If an officer does not operate their equipment properly, these mistakes can create doubt as to whether the speed measurement was accurate or not. Some common types of radar errors includes, harmonic Signal interference, Batching, Shadowing, RFI interference, Target Identification errors, Fan Error, moving mode-cosine error.

Lidar devices are all prone to sweep error. A very common error caused when the laser beam moves from one spot on a target to another spot on the same target. A have a video demonstrating sweep error by getting 12 mph reading from a parked car with a calibrated lidar device.

Pacing, is also prone to errors. If a police officer does not maintain the same speed as the target vehicle the result will be inaccurate. Pacing from different travel lanes is also inaccurate whenever the road curves.

Evidence of Innocence in Speed Cases

Defending a driver is not just about attacking the prosecution’s evidence, it can also involve providing the court proof of innocence. The testimony of the driver and other passengers can be effective evidence if done correctly. Police dash cam footage can also provide evidence of innocence. Calculating the time it takes a police officer to catch and pull over a speeder can also provide evidence of evidence, in high speed reckless driving cases.

Mitigating Evidence in Speeding Cases

Even if a driver is guilty, that doesn’t mean that they will be found guilty. There are many reasons a judge may choose to lower the charge from criminal reckless driving to a traffic ticket. For the most part judges use punishments to make sure people slow down and take Virginia traffic laws seriously. Anything you can do to demonstrate that you take the law seriously and will not speed again, may help avoid a reckless driving conviction:

  • Having a clean record helps
  • Taking a DMV driver improvement class
  • Taking a reckless driving or aggressive driving avoidance class also helps.
  • Getting your car’s speedometer calibrated by a mechanic (if your speedometer is low or broken – you can argue that this contributed to you accidentally speeding. A broken speedometer is not technically a defense but it may lower your punishment or help you avoid conviction)
  • Doing community service
  • Getting rid of a fast car or motorcycle
  • Parents can also help when their children are defendants by grounding or restricting their children. (This shows the courts that the parents are in control and dealing with the situation in-house.)

Anyone who is charged with reckless driving in Northern Virignia, can call the Law Firm of Nichols & Green pllc to get a free consultation. During that consultation, we will discuss all the defenses that are applicable to your case and we will tell you exactly what you need to do to prepare for court. Call anytime to set up your consultation at (703) 383-9222 or click here to reach us by email.


How do I get my license back after a suspension in Virginia

By , April 7th, 2016

How do I get my license back?

If you have had your driver’s license suspended in Virginia, getting your right to drive restored can be a major headache. This article will explain to you some of the things you can do to get your driving privileges restored.

Why Were You Suspended or Revoked?

It is important to know why you are suspended before you can fix the problem. To see each of your DMV suspensions go to the Virginia DMV website and order an online copy of your DMV record. Your DMV record will have a record of every ticket, driving offense and license suspension.

It will look something like this:



This revocation was issued on 6/24/2009 until 02/06/2012. However the person did not do everything they needed to get their license back until 08/03/2013. They were suspended because of 46.2-390.1(mandatory 6 month suspension for drug convictions). [the six month suspension begins when a driver si elligible to driver again. so in this case the driver had other suspensions that had to expire before the six month period would start, so that is why they couldn’t get their license back until 2012]. The driver was notified about the suspension at court with form DC210 on 06/03/2009 and was notified again by a police officer on 06/11/2011.

By looking at you DMV record you can see each of your current and past license suspensions and revocations. Your DMV record will state:

  • when your license was suspended/revoked,
  • when your license suspension/revocation expired (if applicable),
  • why your license was suspended or revoked ,
  • whether you had a restricted license granted and
  • How you were notified of the suspension or revocation

Suspension vs. Revocation

A license suspension is a temporary ban on your ability to drive. As soon as you comply with the terms of your suspension then you get your license back. A revocation is a when you completely lose the right to drive, and you must retake the exam after complying with the terms of your revocation. The ways you can have your license suspended include:

  • Failing to pay court fines or court costs.
  • Not having valid insurance or paying the $500 insurance waiver.
  • Failing to complete a mandatory driver improvement clinic
  • Failing to pay child support
  • Failure to pay jail fees
  • A court ordered suspension because of a reckless driving conviction
  • Being guilty of providing alcohol to a minor or intoxicated person
  • Getting too many DMV demerit points too quickly.
  • Being declared mentally or physically unfit to drive.
  • Not paying a civil judgement related to a motor vehicle crash.

You license can be revoked if:

  • Convicted of DUI/DWI or Refusal
  • Convicted of 18.2-272 Driving While revoked (because of DUI)
  • Voluntary or involuntary manslaughter while driving a motor vehicle
  • Driver’s test fraud
  • A drug conviction
  • Making a bomb threat
  • Felony convictions involving a motor vehicle
  • Hit and Run
  • Getting three point-tickets while under 18 years old.

Get a Copy of Your DMV Compliance Summary.

If you have had your right to drive in Virginia, suspended or revoked, the DMV will produce a document called a Compliance Summary. The Compliance Summary lists everything you must do to be able to drive again.

The Compliance Summary will list, how long you have to wait, what fees you have to pay, what courses or tests you must complete and anything else you need to do.

You can get a free copy of your Compliance Summary from any Va. DMV location or online at https://www.dmv.virginia.gov/dmvnet/pin_maint/pin_logon.aspx?SESS=NEW

Can I get a Restricted License?

Restricted licenses allow a suspended or revoked driver to drive for very limited purposes. A driver can drive to and from work, for work, to school, to medical appointments, and some other limited activities.

Some types of suspensions allow a restricted license and other types of suspension do not. You can get a restricted license if you are suspended for:

  • DUI,
  • reckless driving,
  • drug charge,
  • driving on a suspended license under 46.2-300 or 46.2-301,
  • excessive demerit point (first time only)

You CANNOT get a restricted license if you are suspended for:

  • Refusal
  • Driving on a Revoked License under 18.2-272
  • Failure to pay fine or court costs,
  • Failure to pay civil judgement related to a car crash.

For help getting your restricted license contact a traffic attorney in the county where you were charged if you suspension is related to criminal or traffic offense. If you were suspended because of an out of state conviction or if you were suspended by the DMV contact an attorney in the county where you live. If you need a traffic attorney in Northern Va. contact Nichols & Green pllc for a free consultation.

Click here to learn how to apply for a restricted license

Check out this video explaining HOW TO APPLY FOR A RESTRICTED LICENSE

Can I Get a Payment Plan to Get my License Back?

If you lost your license because or failure to pay money. Either court costs, fines, child support, or a civil judgement then you may be able to arrange a payment plan in order to drive while you make payments. For failure to pay fines or court costs, contact the court clerk from the court that you owe money to for more information. Most jurisdictions offer some sort of payment plan if the driver owes a large sum of money.

Mouthwash can make you fail a breathalyzer

By , April 1st, 2016

There are a lot of urban myths about breathalyzers being tricked by mouthwash. This particular urban myth is actually true…sort of.

Some mouthwashes will produce false readings on a breathalyzer machine. And these readings are not just a little false, they are way off.

For example. If a sober person gargles and spits with original formula Listerine immediately before taking a breath test your test their breath test results would be as high as .75.  A .75 Blood Alcohol Reading is over nine times the legal limit of .08. Few humans can survive having a blood alcohol content over .50 let alone a .75.

So mouth wash can have a huge effect on breathalyzer machines but here is why. First, Listerine is an alcohol based mouthwash. Listerine is about 47% alcohol. That is about the same amount of alcohol as 80-proof whiskey.

But a person would have to drink about a dozen shots of whiskey to get to a .75 (if they didn’t die or pass out first) but the same person can produce a .75 reading after rinsing their mouth with a cap full of Listerine. These strange results are caused by “mouth alcohol”.

What is Mouth Alcohol?

Breathalyzers are designed to measure the tiny particles of alcohol that escape from your blood into your lung and out through your breath. The amount of alcohol in a drunk person’s breath is very small so breathalyzer machines are very sensitive.

However, when a person puts alcohol in the mouth or throat, some of that alcohol gets trapped in their saliva, in between their teeth, under the tongue, and in any food or gun that might be in their mouth at the time.

After putting alcohol in your mouth, alcohol fumes will escape from your saliva and mouth at much higher concentrations than the alcohol that is in a drunk person’s breath. This concentrated alcohol escaping from your mouth saliva is called “mouth alcohol”.

Mouth alcohol is much more potent than blood alcohol but most breathalyzer machine can’t tell the difference between mouth alcohol and blood alcohol.

How Long Does Mouth Alcohol Last?

Additionally, mouth alcohol is different than blood alcohol because mouth alcohol disappears really quickly compared to blood alcohol. Mouth alcohol usually is 100% gone within 20-30 minutes after a person puts alcohol in their mouth.

Can Breathalyzers Detect Mouth Alcohol?

Most breathalyzer machines cannot detect mouth alcohol at all. The portable breathalyzer machines that officer’s use on the side of the road cannot tell the difference between mouth alcohol or blood alcohol. The ignition interlock devices that are install in cars after a DUI conviction, also cannot tell the difference between mouth alcohol or blood alcohol.

However, one indicator of mouth alcohol includes rapid decreases in blood alcohol readings. For example, a person who uses Listerine mouth wash may produce a .75 reading seconds after spitting, but 30 minutes later they will be a 0.00. A person who was actually just a .08 would take 8 to 12 hours to reach a 0.00. So a police officer can detect mouth alcohol by simply retesting the same person a few minutes later.

That is why ignition interlocks are often programmed to retest 5 minutes after a failed breath test. If the original test was caused by mouth alcohol, the retest should detect either no alcohol or very little alcohol. This would not be the case with someone who had been actually drinking. If you ever fail an ignition interlock test and you were not drinking alcohol, make sure to retest as soon as possible.

The only devices that have any ability to tell is a reading is from mouth alcohol are the breathalyzer machines at the police station, but these device do not always detect mouth alcohol.

In Virginia, all police departments use a breathalyzer device called an EC/IR II for testing people’s breath at the police station. The EC/IR II stands for Electro Chemical/InfraRed II. The electro chemical part refers to the electro chemical cell that is used to produce the actual blood alcohol content number. The infrared portion of the name refers to the infrared sensor in the machine that detects alcohol using a infrared laser. The laser’s job is to constantly measure the alcohol content of the breath sample as it comes into the machine to detect unusual changes in the blood alcohol content.

If there are sudden changes in the infrared reading this can be a sign of mouth alcohol caused by someone burping or regurgitation alcohol while they are in the middle of blowing into the machine.

While the machine may be able to detect this type of mouth alcohol, is uncertain whether the machine is capable of detecting other more subtle forms of mouth alcohol. Additionally, not all EC/IR IIs are programs to use this function and it is unclear whether the EC/IR IIs used by the police in Virginia are set up to actually detect this type of mouth alcohol.

If you burp, belched, or put anything containing alcohol in your mouth within 20 to 30 minutes of failing a breath test, make sure to talk to an attorney about your case.

The EC/IR II at the police station is also programmed to take two breath samples within a minute or two of each other. The machine takes two tests and compares the results. If the results match close enough then the machine will produce a blood alcohol result. If the two tests do not match the machine will demand a third test. If at least two of the three breath results don’t match then the machine will not produce a result.

By retesting at least twice, the breath machine may be able to detect extreme mouth alcohol. However, if a person has some blood alcohol and some mouth alcohol the machine may not be able to detect that. So for example. If you are slightly under the legal limit but there is some mouth alcohol present while testing, the small amount of mouth alcohol can push you over the legal limit but be too small for the machine to detect.

Mouthwash and Ignition Interlock. 

Because alcohol based mouth wash can cause failed breathalyzer readings, Virginia ASAP will not allow people in the ASAP program to use alcohol based mouthwash. Using Listerine or other alcohol based mouth washes can result in a probation violation. If you have an ignition interlock in your car, it is definitely a good idea to obey this rule.

Also, many foods and drinks and even some cough drops or gums may contain alcohol (For example: Honey Buns, vanilla extract, white bread, and cliff bars). So it is a good idea to not eat or drink or chew chum within 30 minutes of taking an ignition interlock test. And because ignition interlock does random retests while driving, don’t eat or drink or chew gum while driving.

Abuse and neglect of children and abandoned infant – Va. Code 18.2-371.1 

By , December 9th, 2015

Va. Code 18.2-371.1. Abuse and neglect of children and abandoned infant

Under Virginia, there are several ways a person can be charged with a felony for abusing a child. The most common non-sexual felony child abuse law is found under Va. Code 18.2-371.1.

Penalties for 18.2-371.1

This crime is a felony and comes with up to 5 years in prison. It stays on your criminal record forever and cannot be expunged unless the charges are dropped or dismissed.

Defenses: 18.2-371.1 only applies to people who are:
  • Parents
  • Guardians
  • People responsible for the care of a child

If the defendant is not responsible for the care of the child victim in the case, then this statute doesn’t apply. If you beat or injury ect. a child whom you don’t have any responsibility for then you committed a different crime. For example: if a day care worker beats and seriously injures one of the children at the day care center she has violated this law, but if her boyfriend who doesn’t work at the center, beats and seriously injures one of the children then he has not committed this particular crime.

Defenses: Serious Injury/Reckless Disregard

In order to be guilty of this crime, the Defendant’s acts or omission must either cause serious injury, put a child in danger of serious injury or show a reckless disregard for human life. The terms “Serious injury” and “Reckless disregard for human life” are vague subjective terms.

Serious injury can include:

  • disfigurement,
  • a fracture,
  • a severe burn or laceration,
  • mutilation,
  • maiming,
  • forced ingestion of dangerous substances,
  • life-threatening internal injuries. OR
  • Any other injury that a judge believes is “serious”

Reckless disregard to human life means that the Defendant’s actions show an indifference for death or serious injury of the child, this can be when the Defendant creates situations where death or serious injury are likely outcomes. Putting a loaded gun to child’s head and playing Russian Roulette would be a text book example of reckless disregard for human life. However, driving your car while extremely drunk with the kids in the back could potentially be another example.

One of the most common defenses to this crime is to argue and explain how the Defendant’s actions don’t rise to the level of “serious injury” or “reckless disregard”.

A common tactic to establishing that injuries were not ‘serious’ is to point out that the police or Child Protective Services provided little or no medical treatment. So for example, if the police are called when a parent spanks their child to the point of causing welts and bruises, an effective defense is to point out that the police never called an ambulance, that the police never provided first aid to the child, that the child wasn’t taken to a doctor. Then we point out that the police are trained to always call Emergency Medical Services if a child is seriously injured. Then we can argue that the fact that the police and child protective services never sought any medical treatment for the child shows that the injuries were NOT serious enough to justify this felony charge.

There are essentially three common ways people violate this law:
  • A child is seriously injured/killed because the Defendant neglected the child.
  • A child is seriously injured by the Defendant’s actions
  • The Defendant’s care for a child so irresponsible that is demonstrates a reckless disregard for human life.

The end of the statute carves out two exceptions: One exception is for parents who abandon the babies at a hospital or emergency room that is currently open and staffed with EMS personnel. The baby has to be less than 15 days old. The second exception is for parents who withhold medical treatment based solely on religious grounds.

Here is the exact language of the actual statute. Va. Code 18.2-371.1

“A. Any parent, guardian, or other person responsible for the care of a child under the age of 18 who by willful act or omission or refusal to provide any necessary care for the child’s health causes or permits serious injury to the life or health of such child is guilty of a Class 4 felony. For purposes of this subsection, “serious injury” includes but is not limited to (i) disfigurement, (ii) a fracture, (iii) a severe burn or laceration, (iv) mutilation, (v) maiming, (vi) forced ingestion of dangerous substances, and (vii) life-threatening internal injuries.

B. 1. Any parent, guardian, or other person responsible for the care of a child under the age of 18 whose willful act or omission in the care of such child was so gross, wanton, and culpable as to show a reckless disregard for human life is guilty of a Class 6 felony.

2. If a prosecution under this subsection is based solely on the accused parent having left the child at a hospital or emergency medical services agency, it shall be an affirmative defense to prosecution of a parent under this subsection that such parent safely delivered the child to a hospital that provides 24-hour emergency services or to an attended emergency medical services agency that employs emergency medical services personnel, within the first 14 days of the child’s life. In order for the affirmative defense to apply, the child shall be delivered in a manner reasonably calculated to ensure the child’s safety.

C. Any parent, guardian, or other person having care, custody, or control of a minor child who in good faith is under treatment solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination shall not, for that reason alone, be considered in violation of this section.”

Some other related crimes include :
  • 18.2-57.2. Assault and battery against a family or household member
  • 18.2-371. Causing or encouraging acts rendering children delinquent, abused, etc.;  penalty;  abandoned infant
  • 40.1-103. Cruelty and injuries to children;  penalty;  abandoned infant


Will A DUI Affect MY Concealed Weapon Permit?

By , December 7th, 2015

Yes, A DUI in Virginia, or anywhere else in the US with substantially similar DUI laws can affect your ability to get and perhaps even keep your concealed weapons permit in Virginia.

Va. Code 18.2-308.09 Makes it illegal for anyone with a DUI conviction in the last three years to obtain or keep a concealed weapons permit.

Here is  the full list of things that disqualify a person in Virginia from obtaining or keeping their concealed carry permit.

§ 18.2-308.09. Disqualifications for a concealed handgun permit

The following persons shall be deemed disqualified from obtaining a permit:

1. An individual who is ineligible to possess a firearm pursuant to § 18.2-308.1:1, 18.2-308.1:2, or 18.2-308.1:3 or the substantially similar law of any other state or of the United States.

2. An individual who was ineligible to possess a firearm pursuant to § 18.2-308.1:1 and who was discharged from the custody of the Commissioner pursuant to § 19.2-182.7 less than five years before the date of his application for a concealed handgun permit.

3. An individual who was ineligible to possess a firearm pursuant to § 18.2-308.1:2 and whose competency or capacity was restored pursuant to § 64.2-2012 less than five years before the date of his application for a concealed handgun permit.

4. An individual who was ineligible to possess a firearm under § 18.2-308.1:3 and who was released from commitment less than five years before the date of this application for a concealed handgun permit.

5. An individual who is subject to a restraining order, or to a protective order and prohibited by § 18.2-308.1:4 from purchasing or transporting a firearm.

6. An individual who is prohibited by § 18.2-308.2 from possessing or transporting a firearm, except that a permit may be obtained in accordance with subsection C of that section.

7. An individual who has been convicted of two or more misdemeanors within the five-year period immediately preceding the application, if one of the misdemeanors was a Class 1 misdemeanor, but the judge shall have the discretion to deny a permit for two or more misdemeanors that are not Class 1. Traffic infractions and misdemeanors set forth in Title 46.2 shall not be considered for purposes of this disqualification.

8. An individual who is addicted to, or is an unlawful user or distributor of, marijuana, synthetic cannabinoids, or any controlled substance.

9. An individual who has been convicted of a violation of § 18.2-266 or a substantially similar local ordinance, or of public drunkenness, or of a substantially similar offense under the laws of any other state, the District of Columbia, the United States, or its territories within the three-year period immediately preceding the application, or who is a habitual drunkard as determined pursuant to § 4.1-333.

10. An alien other than an alien lawfully admitted for permanent residence in the United States.

11. An individual who has been discharged from the armed forces of the United States under dishonorable conditions.

12. An individual who is a fugitive from justice.

13. An individual who the court finds, by a preponderance of the evidence, based on specific acts by the applicant, is likely to use a weapon unlawfully or negligently to endanger others. The sheriff, chief of police, or attorney for the Commonwealth may submit to the court a sworn, written statement indicating that, in the opinion of such sheriff, chief of police, or attorney for the Commonwealth, based upon a disqualifying conviction or upon the specific acts set forth in the statement, the applicant is likely to use a weapon unlawfully or negligently to endanger others. The statement of the sheriff, chief of police, or the attorney for the Commonwealth shall be based upon personal knowledge of such individual or of a deputy sheriff, police officer, or assistant attorney for the Commonwealth of the specific acts, or upon a written statement made under oath before a notary public of a competent person having personal knowledge of the specific acts.

14. An individual who has been convicted of any assault, assault and battery, sexual battery, discharging of a firearm in violation of § 18.2-280 or 18.2-286.1 or brandishing of a firearm in violation of § 18.2-282 within the three-year period immediately preceding the application.

15. An individual who has been convicted of stalking.

16. An individual whose previous convictions or adjudications of delinquency were based on an offense that would have been at the time of conviction a felony if committed by an adult under the laws of any state, the District of Columbia, the United States or its territories. For purposes of this disqualifier, only convictions occurring within 16 years following the later of the date of (i) the conviction or adjudication or (ii) release from any incarceration imposed upon such conviction or adjudication shall be deemed to be “previous convictions.”

17. An individual who has a felony charge pending or a charge pending for an offense listed in subdivision 14 or 15.

18. An individual who has received mental health treatment or substance abuse treatment in a residential setting within five years prior to the date of his application for a concealed handgun permit.

19. An individual not otherwise ineligible pursuant to this article, who, within the three-year period immediately preceding the application for the permit, was found guilty of any criminal offense set forth in Article 1 (§ 18.2-247 et seq.) or former § 18.2-248.1:1 or of a criminal offense of illegal possession or distribution of marijuana, synthetic cannabinoids, or any controlled substance, under the laws of any state, the District of Columbia, or the United States or its territories.

20. An individual, not otherwise ineligible pursuant to this article, with respect to whom, within the three-year period immediately preceding the application, upon a charge of any criminal offense set forth in Article 1 (§ 18.2-247 et seq.) or former § 18.2-248.1:1 or upon a charge of illegal possession or distribution of marijuana, synthetic cannabinoids, or any controlled substance under the laws of any state, the District of Columbia, or the United States or its territories, the trial court found that the facts of the case were sufficient for a finding of guilt and disposed of the case pursuant to § 18.2-251 or the substantially similar law of any other state, the District of Columbia, or the United States or its territories.

§ 18.2-308.013. Suspension or revocation of permit

§ 18.2-308.013. (Suspension or revocation of permit) states that a concealed license permit shall be revoked if a current concealed permit holder does something that would make them ineligible to obtain a license.

“A. Any person convicted of an offense that would disqualify that person from obtaining a permit under § 18.2-308.09 or who violates subsection C of § 18.2-308.02 shall forfeit his permit for a concealed handgun and surrender it to the court. Upon receipt by the Central Criminal Records Exchange of a record of the arrest, conviction, or occurrence of any other event that would disqualify a person from obtaining a concealed handgun permit under § 18.2-308.09, the Central Criminal Records Exchange shall notify the court having issued the permit of such disqualifying arrest, conviction, or other event. Upon receipt of such notice of a conviction, the court shall revoke the permit of a person disqualified pursuant to this subsection, and shall promptly notify the State Police and the person whose permit was revoked of the revocation.

B. An individual who has a felony charge pending or a charge pending for an offense listed in subdivision 14 or 15 of § 18.2-308.09, holding a permit for a concealed handgun, may have the permit suspended by the court before which such charge is pending or by the court that issued the permit.

C. The court shall revoke the permit of any individual for whom it would be unlawful to purchase, possess, or transport a firearm under § 18.2-308.1:2 or 18.2-308.1:3, and shall promptly notify the State Police and the person whose permit was revoked of the revocation.”

What does Substantially Similar Mean?

Subsection (9) specifically address DUI, DWI and related crimes.

“An individual who has been convicted of a violation of § 18.2-266 or a substantially similar local ordinance, or of public drunkenness, or of a substantially similar offense under the laws of any other state, the District of Columbia, the United States, or its territories within the three-year period immediately preceding the application, or who is a habitual drunkard as determined pursuant to § 4.1-333.”

Being convicted of a DUI under Va. Code 18.2-266 within 3 years prior to application is an automatic disqualifier but getting a conviction for DUI from another, the Federal government, or a local city or town may also disqualify the applicant, but ONLY if those foreign DUI laws are ‘substantially similar’ to the DUI laws in Virginia.

Substantial similarity is a complex area of law with a lot of room for disagreement and debate. IF you have a DUI conviction from another state, under federal law, or under the laws of a local town or city, then please call me for a free consultation. (703) 383-9222 to discuss whether that conviction is substantially similar.


Unauthorized Use of a Vehicle – Va. Code18.2-102

By , December 4th, 2015

Virginia Code 18.2-102 : Unauthorized Use of a Vehicle

Unauthorized use of a vehicle under 18.2-102 is Virginia’s “joy riding” statute. If a person takes a car or boat or animal or plane and uses it without permission this is a form of stealing. If the property with worth more than $200 than its a felony. If it is worth less than $200 than its a misdemeanor.

The exact statute reads as follows:

“Any person who shall take, drive or use any animal, aircraft, vehicle, boat or vessel, not his own, without the consent of the owner thereof and in the absence of the owner, and with intent temporarily to deprive the owner thereof of his possession thereof, without intent to steal the same, shall be guilty of a Class 6 felony; provided, however, that if the value of such animal, aircraft, vehicle, boat or vessel shall be less than $200, such person shall be guilty of a Class 1 misdemeanor. The consent of the owner of an animal, aircraft, vehicle, boat or vessel to its taking, driving or using shall not in any case be presumed or implied because of such owner’s consent on a previous occasion to the taking, driving or using of such animal, aircraft, vehicle, boat or vessel by the same or a different person. Any person who assists in, or is a party or accessory to, or an accomplice in, any such unauthorized taking, driving or using shall be subject to the same punishment as if he were the principal offender.”

The big difference between normal larceny or auto theft and Unauthorized Use under 18.2-102 is the intentions of the defendant. If the Defendant intended on keeping the property forever, its normal felony automobile theft. If the Defendant intended on giving the car back then its Unauthorized Use under 18.2-102. (See McEachern v. Com., 2008, 667 S.E.2d 343, 52 Va.App. 679)

A person can commit this crime whether they take the car with permission or without permission. Keeping a car longer than you have permission is a form of Unauthorized Use. So if a car owner loans you their car for a day and you keep the car for two days instead then you are guilty of Unauthorized Use. (See Tucker v. Com., 2004, 604 S.E.2d 66, 268 Va. 490.)

To be found guilty of Unauthorized Use under 18.2-102 the prosecutor and police must be able to prove that the Defendant knew they did not have permission. So if a driver is caught driving a stolen car, the prosecution must prove that drive knew the car was stolen. (See Montague v. Com., 2003, 579 S.E.2d 667, 40 Va.App. 430)

The prosecution must prove that the Defendant had the intent of depriving the owner of possession of their property. This intent can be proven with circumstantial evidence, but it must be proven beyond a reasonable doubt. (See  Blanks v. Gordon, 1960, 117 S.E.2d 82, 202 Va. 295.)

When a person is charged with Unauthorized Use of a vehicle under 18.2-102 the defendant must be tried and charged in the appropriate county or city. In order to have authority over the case, the court must where the driver was caught driving the or using the vehicle without permission. (See Taylor v. Com., 2011, 708 S.E.2d 241, 58 Va.App. 185.)

Simply being caught as a passenger in a stolen or “borrowed” vehicle is not enough to found guilty of being an accomplice to Unauthorized Use of a Vehicle under 18.2-102 (See Reese v. Com., 1985, 335 S.E.2d 266, 230 Va. 172)

Husbands and wives can be charged for taking each other’s car without permission unless the property has been declared marital property in a divorce proceeding or they own the vehicle together. (See  McDuffie v. Com., 2006, 638 S.E.2d 139, 49 Va.App. 170.)

If you have been charged with Unauthorized Use of a Car, plane, animal or vehicle in Northern Virginia, call the Law firm of Nichols & Green pllc at (703) 383-9222 for a free consultation.


Proving Reckless Driving by Racing

By , July 1st, 2015

There are many types of reckless driving in Virginia, but reckless driving for racing under 46.2-865 is one of the most serious. Racing come with a mandatory 6 month to 2 year loss of driving privileges in addition to possible jail and fines and even a forfeiture of their car.

If anyone is injured or killed racing then the crime becomes a felony with years in prison possible and 1-3 years of driving suspensions.


Racing requires two or more vehicles competing. Often the officers suspect racing because do drivers are driving fast and aggressively next to each other. However, this does not prove they are racing. It could simply two friend being jerks out on the road together.

The best form of evidence is a confession. The driver is pulled over and interrogated and then admits they were racing. However, if only the other driver confesses it is difficult to use this against the non-confessing driver because both drivers will be charged with racing. You cannot force a defendant to take the stand and testify against him or her self. So if the only other witness is also a defendant, the government will have a hard time forcing them to testify.

If a driver is arrested for reckless driving, and after their arrest they confess. The confession may be suppressed from evidence if the officer did not first read the driver their Miranda rights. Police officers are not allowed to interrogate arrested individuals with out first reading them their Miranda rights.

Without a Confession, proving reckless driving by racing can be very difficult, however, the prosecution may be able to amend the charge to another form of reckless driving (like reckless driving by speed instead).

If you have been charged with racing in Northern Virginia, give us a call for a free consultation (703) 383-9222 and to talk to a reckless driving attorney.

Watch Luke J. Nichols explain Virginia reckless driving defenses.

Reckless Driving by Speed Defenses

By , February 26th, 2015

How Do You Defense Reckless Driving By Speed Cases?

There are basically two types of strategies that we use to defend a reckless driving ticket. We attack the facts of the case OR we try to get the prosecutor or judge to reduce the charge to a less serious offense.

How do you attack the facts of reckless by speed case?

Attacking how a police officer measured your speed is a very complex area of law and it is not something that lawyers or non-lawyers can do well without a lot of experience. I don’t think I have ever seen a driver successfully attack how an officer measured their speed without an experienced attorney. When I was first learning how to do this, I had a lot of failures before I got good at it. However, here are some examples of how we defeat reckless driving charges.

The most common way we attack the evidence, is by attacking the calibration certificates. Each of the three common speed measuring techniques require a piece of equipment that tells the officer your speed. Whether it is a radar device, a laser or a speedometer, the officer is depending on a machine to prove your guilt.

The police are not allowed to use a machine’s read-out as evidence unless they can first prove that the machine was working correctly and was accurate. To prove that a machine is accurate the police calibrate their devices regularly. Virginia law says that if a police officer does not do the calibration themselves, they need a calibration certificate written by the person who did do the calibration. There are very specific laws that govern calibration certificates.

If the police do not follow these laws, the calibration certificate is not admissible and the officer might not be able to establish the accuracy of their device and the officer is no long allowed to testify to the machine’s reading. Without the device’s read-out we usually win the reckless driving case.

The second most common way we attack a reckless driving by speed case, is that we attack how the officer used the machine. Speed enforcement is not easy. It requires about 18 hours of training and a lot of experience to do speed enforcement. Attacking an officer’s speed enforcement techniques requires two things: First you need to know more about speed enforcement than the officer does. Second, you need to know how to prove the officer did his job wrong.

In some cases, the only way you can prove an officer did his/her job wrong, is to hire an expert witness to testify in your case, but this is expensive. Usually about $1,00-$3,000. The cheaper way to attacks an officers methods is to use the officer’s own words against him. However, this technique requires a lot of trial experience and skill.

The third technique for attacking a reckless by speed case is to use evidence of innocence. This means presenting evidence that tends to show that the defendant is innocent. Witnesses testimony, vehicle black box records and police dash-cam video are all examples of some of the evidence that might exist. This is also the least common method for defending reckless driving cases so most attorneys do not have a lot of experience using this type of evidence in a reckless driving case.

How do you get a reckless driving charge reduced?

There are many ways to convince a judge or prosecutor to reduce a reckless driving charge. Some of the more common techniques include: Having a good DMV record, taking a Driving Improvement Course or getting your car’s speedometer calibrated.

However, there are many more ways to increase your chances of a reduction. Community service, the ASAP aggressive driving classes, apology letters to the Court or talking to the judge about why you are a good person or why a reckless driving conviction would cause you serious harm.

Throwing yourself on the mercy of the court can be an extremely effective technique or it can be an utter disaster. You have to understand the judge and prosecutors really well and you have to remember that each case is unique. Very small difference between cases can lead to big differences in the outcome.

Before taking a driver improvement class or doing any of these items, call us for a free consultation. At the end of each consultation we will provide you will a list of ways you can prepare for your case that is specially tailored to your situation to make sure you know the right way to prepare for your reckless driving case.

How serious is my case?

Reckless driving is a criminal offense, if you are convicted it will stay on your criminal record forever. Reckless driving also comes with up to 12 months in jail, a 6 month loss of license, and a max fine of $2,500. [Click here to learn more about the penalties for reckless driving].

However, just because those are the maximum punishments does not mean that they will happen to you. There is a lot of variety in the outcome of reckless driving cases. Some drivers only get the criminal conviction and a small fine, other drivers go to jail and lose their license for a long time.

If you call us, we will be happy to do a free consultation and after asking a few questions I can give you a very accurate estimate of what you are facing, what we can do about it, and what the likely outcome will be. We do hundreds of these cases in Northern Virginia, so giving you a good prediction is quick and easy and we can do it over the phone or in person.

I hope this information was helpful to you. And more than anything else, I hope that you realize that there are many ways to defend a driver against reckless driving and if you would like to talk specifically about your case, you can call any time for a free consultation. (703) 383-9222.




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