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DUI & DWI

    Appealing a DUI/DWI Conviction

    “Should I Appeal?”

    Pros and Cons of Appealing a DUI/DWI Conviction

    When a person is arrested for a misdemeanor DUI (i.e. DUI 1st or DUI 2nd) in Virginia, he is tried in the General District Court (GDC) of the county, city, or town where the crime was committed. A conviction for DUI in the GDC can be appealed to the Circuit Court of Virginia within 10 days.

    If the defendant appeals their DUI to the Circuit Court, several things will happen. The GDC judge may issue an appeal bond if the defendant was sentenced to jail, and the GDC’s sentence and conviction will be completely erased. This means that the driver’s license will be returned and the driver will be released from custody without having to pay their fines pending the outcome of their new trial.

    Make sure you arrange for your attorney to help you with your appeal prior to your trial in General District Court. If you have already retained a DUI attorney for your appeal and are sentenced to jail in the lower court, your attorney can usually prevent you from having to go to jail. If you have not made such arrangements, then you may have to try and retain your attorney or file your own appeal while sitting in jail. This may lead to you spending time behind bars unnecessarily.

    Your new DUI trial will be held in the Circuit Court. The Circuit Court will conduct a completely new trial. The Circuit Court is a different court system than the General District Court and has different procedural rules. For example, you can get a jury trial in Circuit Court, but not in GDC. The Circuit Court in some jurisdictions is located in different buildings or even different cities than the GDC, so make sure you know where you are supposed to go on the day of your appeal.

    A DUI conviction in Circuit Court can be appealed to the Virginia Court of Appeals and then to the Supreme Court of Virginia. However, these courts can choose whether or not to hear the appeals, and they will only reverse decisions by the Circuit Court if the Circuit Court made a serious mistake.

    Felony DUI cases typically involve a preliminary hearing in GDC to determine if there is enough evidence to justify a trial. After that, the felony DUI is tried in the Circuit Court.

    As always, a driver should read their attorney-client contract carefully. Some attorney charge additional fees for DUI appeals. Some charge extra if a felony DUI goes beyond the preliminary hearing. Others charge extra if there is a jury trial. Make sure you discuss the prices of these various scenarios with your attorney so that you can avoid financial surprises and budget for the possibility of a DUI appeal.

    Avoiding DUI

    What to Do if You Are Arrested

    Each section of this Webpage is dedicated to one of the many things you can do to prevent being pulled over, arrested, or convicted for DUI. Whether explaining when to call a taxi or how to prevent being confused for a drunk driver, this chapter is meant to empower drivers. It teaches them to avoid being pulled over, arrested, or convicted for DUI, and it also teaches them what to do if they are arrested.

    How Much Can You Drink and Still Drive?

    There are five ways to be convicted of a simple DUI under Va. Code § 18.2-266:

    1) Driving while having a blood alcohol content (BAC) of .08 or above

    2) Driving while under the influence of alcohol

    3) Driving while under the influence of any drug that impairs ability to drive safely

    4) Driving while under the influence of any combination of drugs and alcohol which impairs ability to drive safely

    5) Driving while having more than very small and specific amounts of cocaine, methamphetamines, PCP, or ecstasy in the driver’s blood

    The law does not require a driver to be drunk to be convicted of DUI.  The most common way people are convicted of DUI is by having a blood alcohol content (BAC) of .08 or higher. While a BAC of .08 usually means a person is demonstrating the physical symptoms of intoxication, an experienced drinker may be able to operate his vehicle normally with a BAC of.08. However, such a driver may still be convicted.

    Likewise, drivers can be convicted of DUI when they have a BAC of less than .08 but are driving impaired. Drivers may be found guilty of DUI if the police officer can prove they were intoxicated by showing that the alcohol was negatively and substantially affecting their driving. A driver who is texting or talking on the cell phone after having only one or two drinks may be arrested for DUI and his distracted driving can be used as proof that he was under the influence of alcohol.

    DUI is not just for alcohol. Any drug that affects your ability to drive safely can potentially lead to a DUI conviction, especially if the drug is used in combination with alcohol. Over-the-counter allergy medicines, cough syrup, necessary prescription medications, and other seemingly innocent drugs can affect drivers’ ability to drive and result in a DUI conviction.

    Because you can be convicted of DUI if you have an elevated BAC or if you are intoxicated, it is important to know how each drink affects your BAC as well as how it affects your ability to drive.

    BAC can be estimated with the Widmark’s Formula, which can be simplified into two charts: one for men and one for women.

    These charts predict the BAC at or around one hour after the drinks have been consumed. BAC drops at a predictable rate of .015 every hour after the body has absorbed all the alcohol in the stomach (usually one hour after drinking stops on an empty stomach).

    Therefore, a person who has a BAC of .11 needs to wait at least three hours before he will be near a .08 and almost seven and a half hours before he will be completely sober.

    Things like body fat content, the speed at which the drinks are consumed, and whether the driver ate while drinking can affect alcohol absorption rates and metabolism rates.

    However, please remember: a driver can be arrested even though his BAC rate is below .08 if he is intoxicated. Inexperienced drinkers or people who simply cannot hold their liquor may act more drunk than other people with the same BAC. Other conditions may affect one’s appearance of intoxication, such as fatigue, medications, or disabilities.

    In order to prevent being arrested for DUI despite a low BAC, it is best to know how alcohol or medication affects you before you try to drive. Always err on the side of caution.

    Also, many medications and alcohol do not mix. Small amounts of alcohol and normally mild medicines may have a powerful combined effect. Read the warning labels of any medicine you are taking, and ask your doctor before you decide to drink while on any medication (over-the-counter or prescription).

    Medications

    You never know exactly how new medications will affect you. Read warning labels carefully and be careful when driving after taking new medications. If someone has had an unusual reaction to medication while driving, it usually takes a good criminal defense attorney to avoid a conviction. Also, be extremely careful about drinking alcohol while on any medication.

    Sleep Deprivation

    Alcohol is a sedative. The effects of sleep deprivation mimic those of intoxication. A sleepy driver may have blood shot eyes, poor coordination, and perhaps even slurred speech. A sleepy driver who has the odor of alcohol on his breath is even more likely to be confused with an intoxicated driver. Always avoid driving when you are tired, but especially avoid drinking even small amounts of alcohol and then driving when you are tired.

    Diabetics

    Drivers with diabetes who are suffering from imbalances in their blood sugar or insulin may exhibit signs of intoxication. Extremely low blood sugar can cause symptoms such as slurred speech, poor muscle coordination, dizziness and poor balance. Diabetic ketoacidosis can also cause the production of acetone in the body of diabetics which can cause some diabetics’ breath to smell as if they have been drinking. If you have diabetes and are ever accused of DUI you should make your condition very clear to the officer and ask for medical attention immediately.

    Sobriety Checkpoints

    In Virginia, the police periodically set up sobriety checkpoints with a roadblock to inspect random drivers for intoxication. There are a number of laws and procedures in Virginia that regulate how sobriety checkpoints work. One of the most important is that the location and time of the checkpoints must be announced to the public before the checkpoints are set up.

    The police department usually announces these checkpoints on the “news” section of its website or in local newspapers and internet news sites. These locations are announced so that drivers can avoid the traffic problems caused by these checkpoints.

    Another important rule about sobriety checkpoints is that the police cannot stop every car that approaches the checkpoint. Each car that is stopped is chosen by a mathematical formula (such as every fourth or fifth car). However, erratic driving, dangerous driving, or otherwise illegal driving may cause a person to be pulled over regardless of the checkpoint formula.

    The most common example is when a driver approaches a sobriety checkpoint, slows down, and then makes an illegal U-turn. The police can pull that driver over for an illegal U-turn.  If the driver had executed a legal maneuver and was not driving suspiciously, illegally or dangerously, the police would not be able to stop him.

    The final rule about sobriety checkpoints is that checkpoints must minimize the time that each driver is stopped. The officer cannot make you step out of your car unless there are signs of impairment. These signs include the smell of an alcoholic beverage on your breath, slurred speech, erratic driving, blood shot eyes, and other similar signs. If the driver does not exhibit any of these signs, the driver must be allowed to go. If the officer decides that the driver displays signs of impairment, he will ask the driver to pull over to a separate area and continue the investigation there.

    The Right to Remain Silent and Field Sobriety Tests

    In determining whether a driver is intoxicated, police officers use a variety of clues, tests, and machines. However, the most effective tools they use are their mouths. Officers do not ask casual questions, they gather evidence.

    Police will ask several kinds of questions. “Have you have had anything to drink?” “How much have you had to drink?” “When did you have your last drink?” “Where did you drink?” If nothing else, they want you to talk to them so that they can tell whether you are slurring your speech or giving incoherent answers. Do not answer any questions.

    During a traffic stop, an officer may or may not have the right to order you to do any number of things including asking you to step out of your car or searching you and your car. However, even if an officer does not have the legal right to do something, he can always ask and get permission.

    Legally, there is a fine line between an officer ordering you and an officer asking you to do something. If you ever have any doubts about whether you are required to obey police officers, clearly and politely ask them whether they are ordering you.

    If they are not ordering you to do something, you can decline. If they are ordering you, politely obey the order and hire a good DWI attorney. Any evidence found by violating the driver’s rights may not be admissible in court.

    Police officers look for erratic driving, empty or open alcoholic beverages, glassy or blood shot eyes, slurred speech, or loss of balance. When they see any combination of these things, they may decide to ask you to perform a field sobriety test (FST).

    FSTs are a series of completely voluntary exercises or tests used to determine sobriety. Many of these tests are difficult and can easily be failed by a sober person. You are not required by law to submit to an FST. The police cannot make you take them. Never take an FST.

    If an officer orders you to take an FST, the results of that FST may be excluded from evidence at your trial. If you feel that the officer in your case pressured or manipulated you into taking a FST notify your DUI attorney immediately.

    The FSTs used by the police in Virginia vary between regions, jurisdictions, and individual officers. Often, officers use variations of the same test that may or may not be more complicated. Most of the tests examine two things: 1) muscle control and 2) ability to follow instruction.

    Do not take a FST. FSTs are meant to be difficult, and some sober people cannot pass them. Because these tests measure the ability to follow instructions, the tests begin as soon as the officer is speaking. Failing to follow any instruction is considered evidence of intoxication.

    Some of the typical tests include:

    • walking heel-to-toe on a straight line, and then turning and walking back a specific number of steps
    • standing on one leg without moving your arms and legs
    • saying the alphabet, starting from a random letter and progressing forward
    • counting between two given numbers, either forward or backward
    • touching your nose
    • touching your thumb and fingers in a specific order
    • performing the Rhomberg Balance test (close your eyes, tilt your head back, and stand still for 30 seconds)
    • the Horizontal Gaze Nystagmus (HGN).

    Of course, performing the physical aspects of these tests gracefully is important, but the driver must also follow the instructions exactly. Often, the police officer will talk quickly over the noise of traffic, and the driver must try to pay attention while under a large amount of stress.

    Wind, rain, snow, temperature, lighting, headlights, gravel, uneven pavement, lightning, thunder, passengers, language barriers or even the police officer can distract the driver and cause him to fail.

    Do not be bullied into taking a Field Sobriety test. They are 100% voluntary and drivers never do as well as they think they will. If you have a physical or mental condition that prevent you from performing well on these tests, do not take the any of the tests and tell the officer about your condition.

    There is one FST that does not have anything to do with coordination and little to do with instructions: the Horizontal Gauze Nystagmus (HGN) test. Nystagmus is when a person’s eyes quiver involuntarily. Everyone’s eyes exhibit at least a minimal amount of nystagmus under natural conditions but this shaking can become exaggerated under certain conditions, including intoxication.

    Police officers will perform this test by asking the driver to follow a finger or a pen visually as it is waved back and forth in front of the driver’s face. They will often shine their flashlight in the driver’s eyes while doing this in order to observe any eye tremors.

    The HGN test is actually several tests (sometimes including the vertical gauze nystagmus test). The officer first looks for a lack of “smoothness” as the eyes track back and forth. The officer then looks for tremors when the eye is looking to the extreme left and right. Finally, the officer looks for tremors while the eyes look toward each other at an angle of less than 45 degrees. The driver will be utterly unaware of whether or not their eyes are shaking, and the shaking is uncontrollable.

    HGN can be caused by preexisting medical conditions or onsite conditions, but few who have it know that they have it, and thus most people cannot inform the police of preexisting HGN. Because of this, drivers should not submit to an HGN test.

    There is rarely anything to be gained by taking any FST. FSTs are voluntary; you do not have to take them. Refusing to take an FST is very weak evidence of guilt.

    Tell the Officer if You Are Overheated

    Few people know how breathalyzers work and fewer realize how common it is for breathalyzers to produce faulty readings.

    Breathalyzers (the machines that estimate BAC based on a person’s breath) work by measuring the alcohol fumes that have evaporated from the blood into the lungs. The machine assumes that a greater amount of alcohol measured in the lungs is consistent with a greater amount of alcohol in the blood. However, as with all assumptions, there are flaws.

    Anyone who has watched a pot of water boil knows that the warmer a liquid becomes, the more rapidly it evaporates. Alcohol in your blood is the same. The higher a person’s body temperature, the less accurate the breathalyzer will be. This inaccuracy occurs because breathalyzers do not take a person’s temperature; the breathalyzers simply assume that the person’s body temperature is normal (98.6°Fahrenheit or 37°Celsius).  However, if the driver’s body temperature is over 98.6°, alcohol fumes will be excessively high and the machine will return an erroneously high BAC reading. Consequently, if a person has a fever, is dressed too warmly, or is even left in a hot police car too long, his breath test results may be inaccurate.

    If you are arrested for DUI and are hotter than normal, let the arresting officer know. Roll down the window, sit by the fan, drink water, and make sure that the arresting officer knows you are too hot. Informing the arresting officer will allow you to either have time to cool down or you will be able to prove in court that you were overheated when tested.

    Vomit, Burping, and Mouth Alcohol

    Another flaw with breathalyzers is that officers assume that all the alcohol detected came from the driver’s lungs. Alcohol fumes from a person’s stomach, mouth, or throat may be much more potent than fumes from the lungs. A person who has recently consumed alcohol, burped, or vomited will consequently produce a BAC breath result that is much higher than reality.

    Because of this problem, police officers in Virginia must “observe” the driver for 20 minutes before they administer a breath test at the police station. They are supposed to look for signs that the driver has burped or vomited in order to validate the results.

    If you have vomited or burped within 20 minutes before taking a breath test, make sure you let the officers know so that they can reset the clock and allow another 20 minutes for the alcohol fumes to evaporate. Be careful, people who intentionally make themselves vomit or burp to avoid being tested might be charged with refusal to submit to a breath test.

    Know When You Can Refuse to Blow and When You Cannot

    There are two types of breathalyzers used in Virginia: 1) the Preliminary Breath Tester (PBT) and 2) the Evidential Test Device (ETD). The biggest difference between these machines is that the PBT is voluntary—you have the right to refuse a PBT.  However, you may be charged with refusal to submit to a breath test if you refuse to blow into an EDT after being arrested for DUI.

    A PBT is a handheld device that a police officer uses at the scene of the arrest to determine BAC. They are usually kept in the trunk of a police cruiser. They are small, portable machines with a plastic tube or mouthpiece that the driver blows into. PBTs can only be used to justify an arrest; they cannot be used as evidence in a trial.

    ETDs are different from PBT in several ways. They are not portable. The machine is about the size of large shoebox with a blow tube that sticks out of the side. They are usually attached to a printer and keyboard. All ETDs in Virginia are the same make and model (INTOX EC/IR II), and they are kept at the police station rather than in police cars. Before blowing into an EDT in Virginia, a driver must be observed for 20 minutes. The driver must also be read a form letter stating that he must submit to the test, that he has the right to observe the results, and that he has a right to receive a copy of the printed results. The results of an EDT can be used as evidence at trial.

    Remember, the most important difference between PBTs and ETDs is that a driver suspected of DUI does not have to blow into a PBT, but a driver arrested for DUI must submit to an ETD breath test. Always refuse a PBT.

    Bond, Jail, Bail and Impound

    “How Do I Get out of Here?”

    Being Arrested, Making Bail, and Getting Your Car out of Impound

    Custody versus Summons

    After being arrested for DUI in Virginia, you will either be taken to jail or released on a summons. (A summons is a piece of paper instructing you when and where to appear in court.) Generally, if a driver is arrested for DUI the police will take the driver to the police station or jail for additional testing before taking them into custody.

    Magistrates

    A person who is arrested and taken into custody for DUI will typically appear before a magistrate. Magistrates perform two functions: 1) the magistrate verifies that the police officer had probable cause to arrest the suspect, and 2) the magistrate sets bail.

    In order to prove that the officer had probable cause for the arrest, the arresting officer will sign a statement of the facts called a criminal complaint and deliver it to the magistrate. If the officer can articulate facts that suggest sufficient justification for the arrest, the magistrate will issue an arrest warrant and set bail. If a magistrate sets an excessively high bail or does not provide you with bail then your attorney can file a bond motion and ask a judge to set bond with little or no bail.

    Intake

    Drivers arrested and taken to jail for DUI in Virginia go through an intake process. The medical staff examines them, their property may be taken and inventoried, and they are fingerprinted and photographed.

    The intake process can produce important evidence in a DUI trial. The intake photograph can be used to rebut an officer’s accusation that the driver had glassy, bloodshot eyes or that they looked extremely intoxicated. Documentation from the medical intake examination can be used to establish the presence of injuries that affected the driver’s ability to perform field sobriety tests. Keep any documentation given to you at the jail and show it to your attorney as soon as possible.

    Contacting Your Attorney

    In many jurisdictions in Virginia, defendants will usually get their first chance to call an attorney when they are in jail. Most of the jails in Virginia have telephone access, and the inmates can make collect calls. Most DUI attorney will accept collect calls from clients. Some jails allow free calls to attorney who are registered with the jail.

    Bail

    In Virginia, bail is set by the magistrate and is based on two factors: 1) the likelihood of the defendant appearing in court on the trial date, and 2) the risk to the public if the defendant is released from jail. The magistrate will look at whether the defendant has ever been charged with failure to appear in court, the severity of the current charges, past criminal record, and the driver’s ties to the community. If a magistrate sets an excessively high bail or does not provide you with bail then your DUI attorney can file a bond motion and ask a judge to set bond with little or no bail.

    Bail Bondsman

    Bail bondsmen will, for a fee, post your bond for you and they can usually expedite your release on bond. Bail bondsmen charge a fee of approximately 10% of the bail to bail someone out of jail. They may also require a cosigner who will pay them back if the defendant does not show up to court. Bail bondsmen will also usually accept collect calls from jail.

    Car Impoundment

    When someone is arrested for DUI the police can impound the car if it is not parked in a legitimate parking spot. Sometimes, if the police officer is in a good mood and there is a sober, licensed driver nearby, the officer may allow the sober driver to move the car. The police will usually not park your car for you.

    If the car is towed and impounded, it may cost approximately $120 plus $60 per day. The police may also do a limited search of the car if it is impounded. If your car is impounded, make sure to call a DUI attorney immediately and request help getting your car out of impound.

    ICE Detainers

    For legal and illegal immigrants, being arrested in Virginia is a particularly terrible experience. Many counties in Virginia aggressively try illegal immigrants who are arrested. If an immigrant is arrested in Virginia, Immigration and Customs Enforcement (ICE) agents may interview them to determine their immigration status. If an ICE agent determines that the immigrant is illegal or deportable, then they may issue a detainer. An ICE detainer is an order requiring the sheriff’s department to hold the immigrant until ICE can come and get him. ICE detainers are the first step in deportation.

    If you are an immigrant and are arrested in Virginia, post bail and contact an attorney as soon as physically possible. If an immigrant can post bail fast enough, they may get released before ICE has time to issue a detainer.

    Even if an ICE detainer has been issued against an alien, a skilled attorney can sometimes thwart the deportation process by acting quickly. If you are an alien and have been arrested, the worst thing you can do is procrastinate calling an attorney.

    DUI Consequences

    “How Bad Is It?”

    The Costs and Consequences of Conviction

    About the time the police put the handcuffs on, the driver realizes that he or she is in trouble. The first thing they want to know is “How bad is it?” DUIs are very serious in the Commonwealth of Virginia. They come with complex and severe punishments.

    Because DUIs elicit so much public attention and because of the problems with repeat offenders, almost every year (sometimes several times a year) the legislature changes the DUI laws, increasing the complexity and seriousness of their consequences. If a driver hires an attorney whose practice does not focus on DUI defense, the driver runs a greater risk that his attorney will arrive at court unaware of recent changes in the law. Because DUI laws change so frequently, drivers should not attempt to use this book as a substitute for a consulting an experienced DUI attorney.

    DUI laws are complicated; there are 17 different types of punishments, fines, or fees that result from a DUI conviction. The punishments depend on how many convictions the offender has had, his blood alcohol content (BAC), and the discretion of the judge. Some punishments are mandatory and others are discretionary. Some consequences are decided by the judge; others are decided by the Alcohol Safety Action Program (“ASAP”) case managers, the DMV, or other third parties.

    Because these consequences are so severe, complex, and far-reaching, it is essential that you have an attorney that will take the time to get to know you and your situation so that they can counsel you on how your legal decisions will affect your life. A good DUI attorney must know their client as well as the law.

    As mentioned above, the many different punishments for DUI depend on the number of convictions a driver has had, the time that has elapsed since those convictions, his BAC at the time of arrest, whether there were aggravating factors (such as having a minor in the car) and the judge.

    The number of convictions a driver has is the most important factor in determining how much trouble a driver is in. A driver’s second conviction in ten years carries mandatory jail time, and his third DUI in ten years is a felony.

    Prior convictions from any jurisdiction in Virginia and even from some states and federal jurisdictions can be used against you if the prosecution can comply with a series of strict evidentiary rules. A quality attorney will know these requirements and may be able to thwart the prosecution’s efforts to use prior convictions against you if they do not comply with the evidentiary rules. If you have been arrested for DUI more than once, you need to hire the best attorney you can afford and explain your legal history thoroughly.

    The effects of prior convictions for DUI are influenced by how much time has passed since your last DUI. A second or third DUI in five years is more serious than a second or third DUI in ten years. Once again, if you have ever been previously arrested for DUI, you need to hire a quality DUI attorney immediately.

    Jail Time

    When people come into my office, they are usually most concerned with how much jail time they will get. Before answering that question, you need to know that there are two types of jail time: discretionary jail time and mandatory jail time.

    Discretionary jail time is the amount that the judge can choose to give a defendant. Discretionary jail time for misdemeanors is also served twice as fast. For every two days of discretionary jail time you receive, the sheriff’s department makes you serve only one. If a driver is given a discretionary sentence of 30 days, then he will usually spend only 15 days in jail (conditional on good behavior).

    On the other hand, if the law requires mandatory jail time, those days cannot be waived by the prosecution, judge, or sheriff. Therefore, a driver who is found guilty of a crime that carries mandatory time in jail must serve 100% of that time.

    Most sheriffs and judges will not allow defendants to participate in jail programs such as “work release” or “weekday release” while they are serving mandatory jail time.

    The one exception to this rule is alcohol/drug inpatient rehabilitation. On rare occasions, a judge may order a driver to serve their mandatory and/or discretionary jail time in a rehabilitation facility instead of jail.

    A driver convicted of a first DUI faces up to 12 months of discretionary jail time. However, if the driver’s BAC was .15 or more, five of those days will be mandatory jail time (ten days if his BAC was more than .20).

    A second DUI conviction carries 12 months of possible jail time. Of those 12 months, 5 to 40 days will be mandatory jail time, depending on the BAC and whether the last conviction was within the last five or ten years.

    A third DUI conviction is a felony and comes with up to five years in prison (90 or 180 days are mandatory), while a fourth DUI has one year of mandatory jail time and four years of discretionary incarceration.

    Not all jail sentences are equal. Your attorney may ask the judge to allow you to turn yourself in at a later date. Discretionary jail time can be served on weekends, and drivers who are incarcerated for substantial periods of time can apply for work release programs, inmate trustee programs, or house arrest, to name just a few programs. The availability and details of these programs vary widely between counties and cities, and may even vary based on which day of the week the driver is convicted (for example, Alexandria’s weekend jail program is hardest to get into on Fridays and is easier to get into on Mondays).

    Having an attorney who knows the local programs and can guide you through the process is essential.

    License Suspension

    Next to going to jail, the worst thing that can happen to most people is losing their driver’s license. Unfortunately, Virginia is extraordinarily strict in taking away peoples’ right to drive. There are three types of license suspensions that can affect a person charged with DUI in Virginia:

    1) Administrative Suspension
    The police confiscate your license on the day you are arrested.
    2) Judicial Suspension
    The judge suspends your license, and the bailiff confiscates your license upon conviction.
    3) DMV Suspension
    The DMV sends you a letter stating that you no longer have the right to drive because of excessive demerit points.

    Administrative Suspension

    Administrative suspension (found in Va. Code § 46.2-391.2) occurs when the arresting officer notifies the driver that his license has been suspended. This notification usually happens at the police station after the officer administers a breath test. If you have a Virginia driver’s license, the arresting officer will confiscate it.

    The police can suspend an out-of-state license holder’s right to drive in Virginia, but they are not allowed to confiscate an out-of-state license and cannot revoke an out-of-state driver’s right to drive in other states. If the police confiscate your out-of-state driver’s license, notify your attorney immediately for help getting your license back from the police.

    Administrative suspensions apply to drivers who are charged with refusal to submit to a breath or blood test or those charged with DUI based on a BAC of .08 or more (.02 or more if they are under 21). There should be no administrative suspension for a DUI arrest based only on erratic driving or drug use. If the police try to suspend your license for anything but DUI by BAC or refusal to submit, then contact your attorney immediately to have the suspension removed.

    Administrative suspensions last only seven days for first time offenders, but drivers with prior convictions will be suspended for 60 days or until the day of trial, depending on whether they were arrested for their second or third DUI. Drivers can appeal an administrative suspension and/or receive a restricted driver’s license during the suspension period.

    An effective DUI attorney may be able to get you your license back or get you a restricted license during the administrative suspension. Consequently, the sooner you hire your attorney the more services you can receive for your money. Retain an attorney immediately after your arrest to maximize the benefits you can receive from your DWI attorney.

    Judicial Suspension

    The second way that Virginia may revoke your right to drive is through the judicial process. If a person is found guilty of his first DUI, the judge must suspend his license for 12 months. A second offense requires a mandatory suspension of three years. A third or fourth offense will result in an indefinite suspension of the right to drive.

    Conviction for refusal to submit to a breath/blood test results in a 12-month suspension of your driver’s license (without a restricted license) which is in addition to the license suspensions you may have pending for DUI or other charges. A second conviction for refusal will result in a three-year suspension without a restricted license.

    In DUI cases, the court may grant a restricted driver’s license. Restricted driver’s licenses are by definition restrictive. A restricted driver’s license limits your driving to specific times and places. These restrictions must be strictly obeyed otherwise the driver may be charged with driving on a suspended license.

    A first-time offender may be granted a restricted license immediately upon conviction. Following a second conviction within ten years, a restricted license cannot be granted for at least four months. If the second conviction is within five years, the driver must wait one year to apply for a restricted license. A third-time offender must wait three years to get a restricted license.

    DMV Suspension

    Even if the court grants a driver a restricted license, the DMV may yet take that privilege away for accumulating excessive demerit points.

    Any Virginia driver who commits a moving violation (including DUI) will have up to six points deducted from his driving record. These points are called demerit points. Accumulating too many demerit points within a given period of time can result in the suspension of the driver’s license.

    Almost all of the DUI and DUI-related offenses (including refusal) are six-point offenses that remain on your driving record for eleven years. The DMV has complete control over the demerit-point system, and there is nothing any judge can do to alter the points assessed against you once you are convicted.

    For drivers who are minors, any demerit-point conviction means they must attend a driver-improvement class. Failure to do so within 90 days results in a license suspension until the program is completed. A second point-conviction results in a 90-day license suspension. A third will result in a suspension of one year or until the offender reaches age 18, whichever is longer.

    For adults, the accumulation of eight demerit points in 12 months or 12 points in 24 months results in an advisory letter from the DMV. The accumulation of 12 demerit points within 12 months or 18 points in 24 months results in a mandatory driver-improvement class followed by six months of probation and 18 months of control period. The driver-improvement program must be completed within 90 days, or the license will be suspended until the course is completed.

    The accumulation of 18 points in 12 months or 24 points in 24 months results in a mandatory 90-day license suspension. After the suspension the driver must complete a driver-improvement class before their license can be restored. After restoration, they will be on probation for six months and then a control period for 18 months.

    If the driver is convicted of a traffic offense while on DMV probation, his license will be suspended. The driver’s license will be suspended for 45 days for a three-point violation, 60 days for a four-point violation, and 90 days for a six-point violation. Once that individual finishes the suspension period, he will be placed on probation for an additional six months and then an 18-month control period.

    A violation while on the control period will result in the driver being placed on probation for six more months followed by another 18-month control period. Drivers should always get copies of their driving records before trial so that they can determine whether they are in danger of a DMV suspension.

    Consequences of Demerit Points in Virginia (Adult Drivers)
     Within 12 monthsWithin 24 months
    8 pointsLetter from DMVNothing
    12 pointsMandatory driver-improvement class + probation for six monthsLetter from DMV
    18 pointsMandatory 90-day license suspension + driver-improvement class + probation for six monthsMandatory driver-improvement class + probation for six months
    24 pointsMandatory 90-day license suspension + driver-improvement class + probation for six monthsMandatory 90-day license suspension + driver-improvement class + probation for six months

    Effects of a DUI on Insurance


    After a conviction for DUI, a driver’s insurance premium can increase dramatically depending on the insurance carrier and previous driving history. For a second DUI conviction, the premiums can go up even higher. These rates will remain high for three years or more for a first offense. A single DUI can cost a driver $1,800 or more in increased auto insurance premiums.

    Some insurance carriers will refuse to insure a driver convicted of DUI. In some cases, the driver may be required to file an SR-22 (high-risk driver) insurance form with the DMV before the DMV will reinstate the driver’s license.

    Fines

    Excluding insurance hikes, a driver’s first DUI can cost $1,000 to $4,200 in fines, government fees, and costs. A second DUI costs $1,200 to $5,500. A third or fourth costs between $2,100 to $5,800.

    There are approximately 13 different fines, fees, and costs that may be assessed against a defendant if he is found guilty, pleads guilty, or pleads no contest. Here is a list of some of those expenses with approximate dollar amounts:

    • Fines ($250 to $2,500)
    • License reinstatement fee ($175)
    • Ignition interlock system ($70 plus $60/month)
    • ASAP ($495+)
    • Trauma Center Fund ($50)
    • Court costs ($100)
    • Jury fees ($210/day)
    • Court-appointed attorney fee ($120 for misdemeanor, $445 for felony)
    • Restricted license fee ($220)
    • Mandatory driver-improvement class ($35 to $75)
    • Car impounding fee ($120 plus $50/day)

    (Note: these amounts are constantly changing and should be used only as estimates).

    Alcohol Safety Action Program (ASAP)

    A mandatory condition of probation for anyone convicted of DUI is that the driver must complete the Virginia Alcohol Safety Action Program (VASAP or ASAP). The defendant must register for the ASAP classes within 15 days after sentencing or release from jail. Registering for ASAP is a requirement for probation and often for getting a restricted license.

    At the driver’s first ASAP appointment, there will be an intake interview and a case manager will decide which classes the driver should take. Most-first time DUI defendants who do not have substance abuse issues will be assigned to a 20-hour, ten-week program that meets once a week at the same time every week for two hours per session. This program is the cheapest at about $495 (the cost changes frequently and should be used only as an estimate).

    However, if a driver is convicted of a second DUI, of having an unusually high BAC, or if the ASAP program believes they have substance abuse issues, the ASAP case manager may require the driver to attend more rigorous and expensive classes. A driver may be required to attend ASAP meetings multiple times a week or even every day. ASAP can require in-patient rehab. ASAP can demand that a person attend meetings for longer than just ten weeks. These more extensive programs can cost thousands of dollars. The ASAP case manager has massive amounts of control over the form your ASAP treatment may take.

    If a driver does not live in Virginia, the ASAP program may require the driver to attend a similar private or government program in their home state. It may also be possible for private treatment to take the place of the ASAP program. Contact an experienced DUI attorney if you are considering attending private alcohol or drug treatment.

    Failure to sign up for or complete ASAP can be a violation of probation. If a driver does not show up to an ASAP class, he risks being sent to jail. Make sure to hire an attorney who can explain and aid you in the ASAP registration process.

    Probation and Suspended Sentences

    Typically, a judge will hand down a sentence with the majority of jail time suspended (e.g. “60 days in jail, 50 days suspended”). Suspended jail time is jail time you do not have to serve, conditional on your “good behavior”, successful completion of ASAP, and “keeping the peace” for a period of time (usually one year). This sentence is a form of “inactive probation.” Inactive probation means that you are on probation but do not have to report to a probation officer.

    The judge will also declare the length of the probation, usually one year. If the driver violates the conditions of his probation (does not attend ASAP or is convicted) during that year, then the driver will appear before the judge to determine how much of the suspended sentence the drive will have to serve. Many judges will sentence violating drivers to the entire suspended sentence.

    If you have a suspended sentence or any form of probation from previous convictions (whether or not they are DUI-related) and you are arrested, immediately hire an attorney and tell your attorney about the probation.

    Other Possible Consequence of a DUI or Refusal Conviction

    There are many possible consequences of a DUI or refusal conviction that are unique to an individual client. These consequences may be loss of job, loss of custody of children (especially if the client is in the middle of a custody dispute), denial of college or graduate school admission, denial of security clearance, denial of application to the armed services, loss of a CDL, immigration issues, and potential civil liability.

    To effectively represent you, a DUI attorney needs to know more than just the facts of your case. Your attorney needs to know you personally so that she can counsel you on all of the possible consequences. Make sure you hire an attorney who takes the time to get to know you and communicate to your attorney how a DUI conviction will affect your life.

    Refusal to Submit to a Breath Test

    Refusal to submit to a breath test can be either a civil or criminal offense. Refusal to submit with no prior convictions of refusal or DUI is a civil offense and will result in the suspension of driving privileges for one year with no opportunity for a restricted license.

    A refusal to submit conviction within ten years of being convicted of DUI or refusal, will result in a three-year driver’s license suspension (with no restricted license), up to six months in jail, and up to $1,000 in fines. This form of refusal is a criminal offense.

    If a person refuses to submit after two convictions of DUI or refusal (or a combination of the two) within the last ten years, he will lose his driving privileges for three years (with no restricted license), face up to 12 months in jail, and face a maximum fine of $2,500.

    Driving suspensions for DUI and refusal to submit will run back-to-back. This means a person who is convicted of his first DUI and first refusal to submit at the same time loses his driving privileges for two years. A person with a prior DUI who is convicted of a second DUI and first refusal to submit will have his license suspended for six years (three for the second DUI and three for refusal to submit).

    DUI Defenses

    “Do I Have a Chance?”

    Why Drivers Should Never Assume They Will Be Found Guilty.

    If nothing else, this website should give you a sense of the complexity of a DUI charge in Virginia. They are complicated to defend, and, more importantly, they are complex crimes to prosecute. DUIs are never as simple as they look, and a driver is always innocent until proven guilty.

    In order to successfully prosecute DUIs, prosecutors, police, breath technicians, and the Virginia Department of Forensic Science personnel must all comply with strict and complex laws. There are dozens of ways that any one of these people can make a mistake that could affect the outcome of a DUI case. Even if a mistake does not result in an acquittal, it may result in a lesser sentence.

    The following sections lay out just a few of the many issues that may affect the outcome of your DUI trial.

    Jurisdictional Issues

    Where a crime occurs dictates which courts can hear a case and which officers can arrest a driver. For example a George Mason University police officer may not be able to stop and arrest a driver for DUI outside the boundaries of George Mason University and its abutting roads. Also, the Prince William County General District Court may not hear a DUI case if the intoxicated driving did not occur within Prince William County.

    Warrantless Arrests

    For most DUI cases in Virginia, if an officer arrests a person for DUI but did not personally witness them driving, then he must prove that the arrest occurred at the scene of an accident, at a hospital (after an accident) or somewhere else if the DUI occurred within 3 hours of the arrest. If an officer cannot meet this burden then the court may dismiss the DUI case entirely.

    Unconstitutional Traffic Stop

    For most situations, in order to pull a driver over, an officer must have a “reasonable articulable suspicion” that crime is occurring.

    If an officer cannot articulate why they reasonably suspected that the driver had broken the law prior to being pulled over then the court may declare the traffic stop unconstitutional and dismiss the DUI.

    Vague accusations such as “he looked like he was speeding” or “he was driving funny” may not be enough to justify a traffic stop.  If a judge finds that the stop was unconstitutional then the DUI may be dismissed.

    Unconstitutional Arrest

    In order to arrest a person for DUI a law enforcement officer must have “probable cause” that the driver was intoxicated before the arrest. Without probable cause, the arrest is usually invalid and the DUI case may be dismissed. The court may also dismiss a refusal charge as well.

    When an attorney challenges the constitutionality of a DUI arrest in Virginia the attorney is usually attacking at least one of four types of evidence in the following order: 1) The PBT result, 2) The Field Sobriety Test results, 3) the driving behavior, and 4) Other signs of intoxication (odor, slurred speech, blood shot eyes, lack of coordination, etc.)

    Intoxicated At the Time of the Offense (Rising BAC)

    In Virginia, the government must prove that a driver was drunk at the time they were operating the vehicle not just when tested at the station. If your PBT results at the scene were much lower than your ETD blood alcohol levels at the station you may be able to prove that you were not legally intoxicated at the time you were pulled over. This defense is particularly relevant when a person drank alcohol immediately before being pulled over. In that situation the alcohol in their stomach had not yet entered their blood stream at the time they were driving. Consequently, it may be argued that the driver would have arrived home before becoming legally intoxicated had they not been arrested.

    Operating a Vehicle

    If the police officer who arrested you did not personally witness you operating your vehicle there may be a good legal defense to your DUI. This situation is most common where the police respond to an accident or where the police find the driver sitting or sleeping in their car. Even if the officer can prove that a driver drove to the spot where he was found, it does not mean that the person was intoxicated at that time.

    Field Sobriety Tests

    Field Sobriety Tests are completely voluntary. In Virginia, an officer is never allowed to force a driver to take an FST. If an officer orders, forces, or requires a driver to take an FST then the court may find that the FST violated the driver’s fourth amendment rights. The courts may then order all evidence related to the FST to be excluded from the trial.

    The Nine Step Walk and Turn & The One Leg Stand

    These field sobriety tests must be performed in an appropriate location. The ground must be flat, level, hard, non-slippery, clear of any debris, reasonably quiet, safe from traffic and other potential distractions or safety issues. Extreme weather can also effect the accuracy of this test.

    Like other tests, these tests check a driver’s ability to follow instructions. Any language barriers, deafness, excessive noise, learning disabilities, mental retardation, developmental issues, etc. can possibility skew the outcome of these tests.

    If a driver has any problems balancing, walking, or standing then these tests may not be valid. Being over the age of 65, obesity (more than 50 pounds overweight), injuries to your back, legs, feet, knees, etc., inner ear problems, vertigo, clubbed feet, and arthritis are all examples of medical conditions that could affect the accuracy of these tests.

    An officer should asked detailed questions about a driver’s medical and physical condition prior to administering these field sobriety tests in order to guarantee that these conditions are not present. Any time a driver is asked to perform either of these field sobriety tests after being in a serious accident, the results of this test should be questionable.

    Horizontal Gaze Nystagmus Test (HGN)

    This test must be administered very precisely in order to be an accurate gauge of intoxication. If an officer moves the stimulus (their finger or a pen) too quickly (i.e. faster than two seconds per pass per eye) it may cause uneven tracking. Holding the stimulus more than slightly above the eye line may also induce nystagmus. Making the driver hold their eyes at maximum deviation for too long or too many times can also lead to fatigue-induced nystagmus. Testing a driver while cars or other fast-moving objects are within the driver’s field of vision can also induce nystagmus.

    Medical conditions, including injury from a car accident can cause nystagmus. An officer should check for resting nystagmus and for equal pupil size prior to beginning the test to guard against these types of false positives.

    The Alphabet Test

    This test should never involve reciting the alphabet backwards. Additionally, this test is less reliable when the driver is not a native English speaker. An officer should ask a driver about their ability to understand and speak English if they are not a native speaker. Testing in an extremely noisy environment can also cause the officer to hear errors that are not really present. Speech impediments, injuries to the lips or mouth, and an assortment of mental conditions can cause a false positive.

    Finger Dexterity Test

    As with other field sobriety tests, medical conditions, injuries, shock, language barriers, or any other condition that affects hand coordination or a driver’s ability to follow instruction may invalidate this test.

    Private Property

    In Virginia, if a driver is arrested for DUI on a private road, parking lot, or driveway the government may be prevented from using or mentioning the breathalyzer results at trial. The legal issues surrounding arrests on private property are extremely complicated so talk to a local DUI attorney in detail if you believe that you were arrested for DUI on private property.

    Preliminary Breath Tests (PBTs)

    In order to arrest a driver for DUI in Virginia, an officer must have enough evidence to show “probable cause” to a magistrate or judge. Preliminary Breath Tests (PBTs) cannot be used as evidence of intoxication for a conviction; however, a PBT can be used to justify an arrest. If a driver wants to invalidate an arrest for DUI, attacking the PBT may be essential.

    In Virginia, in order to use a PBT to justify an arrest, the police must do four things: 1) they must use an approved brand and model of PBT; 2) they must use and maintain the PBT according to the manufacturer’s instructions; 3) the PBT must be properly calibrated; and 4) the officer must inform the driver of his right to see the results of the PBT.

    The law requires that the PBT be used according to the manufacturer’s instructions, but, unfortunately, such use is not common practice. For example, the Alco-sensor III must not be used if the machine’s temperature is below 59°F (15°C) or above 96°F (36°C). However, most officers keep their PBT in the trunk of their patrol car where it is either very cold or very hot.

    Also, many PBTs are vulnerable to radio frequency interference (RFI) or radio signals from police officers’ communication devices. Radio signals can strike the PBT’s extremely sensitive voltammeter and cause sporadic readings. If the digital read-out flickers, the screen blanks instead of giving a reading, or the machine produces different samples, if could be a sign that the PBT is being influenced by RFI. If you see an officer using his radio near the PBT or having any of these problems, tell your attorney.

    According to Virginia law, before conducting a PBT, the officer administering the test must notify the driver that 1) the test is voluntary and 2) the driver has the right to see the results of the PBT. If an officer does not tell the driver of these rights, or if the officer does not allow the driver to see the results of the PBT, then the PBT may not be used to justify an arrest.

    Mouth Alcohol: Burping and Other Issues

    Evidentiary Testing Devices (ETDs) assume that all the alcohol fumes they detect came from the driver’s lungs. Alcohol fumes from a person’s stomach, mouth, or throat are much more potent than the fumes from their lungs. A person who has recently consumed alcohol, burped, or vomited will produce a BAC breath result that is higher than normal.

    Because of this problem, police officers in Virginia must observe the driver for 20 minutes before administering the breath test at the police station. During those 20 minutes, they are supposed to watch for signs that the driver has burped, placed anything in his mouth, or vomited. The officer administering the ETD breath test should request the driver to not burp, vomit, or place anything in his mouth before taking the test.

    If the driver burps, vomits, or places anything in his mouth, the driver’s mouth must be cleaned out and the driver must be observed for another 20 minutes before testing. This procedure is extremely important, however not all operators consistently monitor drivers. If the operator did not monitor you for the full 20 minutes or if you burped, vomited, or regurgitated prior to testing, contact a local DUI attorney immediately.

    Body Temperature

    Breathalyzers do not take a person’s temperature; they simply assume the person’s body temperature is 98.6°Fahrenheit when calculating the BAC.  However, if the driver’s body temperature is over 98.6°, the machine will return an erroneously high BAC reading.

    Anyone who has watched a pot of water boil knows that more water evaporates (steams) the warmer the water gets. Alcohol is the same. As the human body warms up, the percentage of alcohol vapors in the lungs rises. If a person has a fever, is dressed too warm, or is even left in a hot police car too long, the breath test may be erroneously high.

    Deep Breaths/Blowing Too Hard

    When someone has been drinking, there is more alcohol in the bottom of the lungs than there is in the top of the lungs. Also, as a person holds his breath, more and more alcohol evaporates into the lungs.

    Studies have shown that a driver who holds his breath before blowing into a breathalyzer will increase the BAC reading, while a driver who hyperventilates will decrease the BAC results.

    The police want you to take a great big breath and blow really hard, so that you exhale as much of that alcohol-rich air in the bottom of your lungs as possible. Often, an officer will stand over a driver and yell at him to blow harder. If a driver is forced by police to blow extremely hard it may cause the breath results to increase.

    Gender

    Breathalyzers do not actually measure a person’s blood alcohol content (BAC), they only estimate the BAC by measuring the amount of alcohol in a person’s breath. To estimate BAC based on breath alcohol, the breathalyzer uses a conversion number called a “partition ration” that is related to the rate at which alcohol evaporates from the blood into the lungs.

    The partition ration that the INTOX EC/IR II’s uses is 2100, which is more or less the average partition ration for men. However, many women have a much lower partition ratio than men and thus have a much lower partition ration than the one used by the INOTX EC/IR II. (For women, the rate is closer to 1500.) This means that a woman with a BAC of .06% and a ratio of 1500:1 may produce a reading on the INTOX EC/IR II of .09%.

    Machine Errors

    There are many things that can interfere with a breathalyzer’s ability to take an accurate reading. While ETDs are much less susceptible to errors than PBTs, both suffer from the same potential problems.

    Some typical machine errors include radio frequency interference (RFI), in which radio signals from officers’ communication devices strike the extremely sensitive voltammeter in the ETD or PBT and cause sporadic readings. The INTOX EC/IR II is designed to produce an “ambient detected” error message when RFI is detected, but the designers have not specified how consistent or accurate this feature is.

    Bruises/Body Trauma

    Blood samples taken at the hospital are often the key piece of evidence in a suspected DUI-related accident. Typically, hospitals use the enzymatic method for determining BAC, but this method may result in erroneously high readings that confuse serum alcohol (which is produced by tissue trauma) with ethyl alcohol. This means that drivers who sustain serious injuries in an accident may be falsely accused of being intoxicated when tested by the enzymatic method.

    Check out our video “Virginia DUI Defenses”

    Hiring a DUI Attorney

    “How do I hire a DUI lawyer?”

    A Guide to Retention Agreements and the Retention Process.

    It is important to hire a DUI attorney immediately if you are ever charged with a crime. However, it is even more important if that crime is a DUI. Most people do not realize that many of the defenses to DUI expire long before trial. If you do not have an attorney to file specific paperwork before the expiration date, you lose the chance to make those defenses. Never put off hiring an attorney.

    Besides, in Virginia you usually pay the same amount for a DUI attorney no matter when you hire them. Why not get more service for your money and hire your DUI attorney sooner?

    Getting a Continuance to Hire a DUI Attorney

    If your trial date is approaching and you still do not have an attorney, most courts will allow you one or two continuances in order to find representation. However, using continuances for this purpose is very dangerous. In addition to losing the opportunity to make certain defenses, you also lose the right to make future continuances. You are allowed a limited number of continuances. If you use all of your continuances finding an attorney, then you will not have any left for your trial.

    Continuances are very important and should never be wasted. In Virginia, continuances can be used to discover the prosecution’s evidence against you. In many jurisdictions, your attorney cannot talk to the police or Commonwealth attorney to discover the evidence against you until the actual day of the trial. Consequently, on the day of your trial your attorney may discover new evidence and need to request a continuance to prepare a strong defense.

    Also, being granted a continuance may increase the odds that the court will grant the prosecution a continuance if they ask for it. If the police officer or breathalyzer operator do not show up at trial, the prosecution will likely ask for a continuance in order to prevent the case from being dismissed. If the court has already granted you several continuances, it may be more likely to grant the Commonwealth a continuance as well.

    Do not put yourself in a position where you or your DUI attorney will have to waste continuances. Find a DUI attorney immediately.

    Typical DUI Attorney Fee Structures

    Most (but not all) criminal defense attorney in Virginia charge a flat fee and demand that the fee be paid before they agree to represent you.

    These fees usually do not cover any court expenses (such as hiring a court reporter, gathering evidence, serving process, or hiring expert witnesses).  Some DUI attorney also charge for travel expenses. It is very important to read the fine print of your attorney-client contract and discuss the possibility of being charged for these extra expenses.

    Court reporters and process servers can cost hundreds of dollars while expert witnesses can cost thousands. Discuss the possibility of needing these services before you sign an attorney-client contract.

    DUI-Related Post-Trial Services

    Some attorney-client contracts end as soon as the judge makes a ruling. When those drivers walk out of the courtroom, they no longer have an attorney. In that situation the DUI attorney may not be obligated to aid the client in registering for the mandatory Virginia Alcohol Safety Action Program (VASAP or ASAP), applying for a restricted license, getting their bail back, paying fines, or appealing their conviction.

    If you are convicted of DUI there is a significant chance that you could be sentenced to additional jail time if you fail to comply with ASAP, the terms of your restricted license, or other conditions imposed by the judge. A DUI attorney can be invaluable in helping you navigate the post-conviction process. Always make sure your retention agreement discusses post-conviction responsibilities.

    Beginning and Ending an Attorney-Client Relationship

    It is extremely important for the attorney and the client to clearly define how and when their relationship will begin and end. It is also important to define what conditions will terminate an agreement. Can your attorney drop you as a client? Can you switch attorney if you are not satisfied? If you terminate the agreement will your money be refunded? What happens if your attorney becomes sick or otherwise unavailable? These questions should be clearly addressed in the retention agreement.

    Orders of Substitution

    If you ever want to change attorney, your new DUI attorney must file an order of substitution with the court. However, the motion for an order of substitution requires the signature of the old and new attorney and in some cases it also requires the signature of the prosecution. This process can take quite a bit of time so if you are not satisfied with your DUI attorney, do not wait to find a new one.

    License Suspensions

    “Can I Drive Yet?”

    What Happens to Your License After Arrest for DUI but Before Trial

    Next to going to jail, the worst thing that can happen to most people is losing their driver’s license. Unfortunately, Virginia is extraordinarily strict about taking away people’s right to drive.

    There are three types of license suspension that can affect a person charged with DUI in Virginia: 1) administrative suspension – in which the arresting officer automatically confiscates your license before trial; 2) judicial suspension – in which the judge suspends and the bailiff confiscates your license; and 3) DMV suspension – in which the DMV sends you a letter after your trial notifying you that you no longer have the right to drive because of excessive demerit points.

    What Is an Administrative Suspension and to Which DUIs Does It Apply?

    An “administrative suspension” (found in Va. Code §§ 46.2-391.2) occurs when a driver’s license is taken away after an arrest for DUI or Refusal to Submit to a Breath Test. Administrative suspensions apply only to drivers who are charged with refusal to submit to a breath/blood test, or who are charge with DUI based on a BAC of .08 or more (unless they are under 21, in which case it is a BAC of .02 or more). There should be no administrative suspension for DUI arrests based only on erratic driving and field sobriety tests.

    If you have a Virginia driver’s license, the officer will confiscate it upon arrest or at the police station and will make you sign a notification of administrative suspension. If you have an out-of-state license the police should not confiscate your physical license but instead will make you sign a piece of paper that notifies you of your administrative suspension from driving in Virginia.

    If the police confiscate an out-of-state license or if the police lose your license you should contact a DUI attorney immediately to aid you in getting your license back.

    Seven Days versus 60 Days of Administrative Suspension

    In Virginia, administrative suspensions last only seven days for first-time offenders, but drivers with a prior DUI or refusal to submit conviction will be suspended from driving for 60 days or until the day of trial (whichever comes first). Drivers charged with a third DUI may be administratively suspended until their trial.

    Drivers can appeal an administrative suspension and/or receive a restricted driver’s license before trial. However, drivers should make sure that any attorney contract they sign includes help with the administrative suspension process.

    What Happens to My Actual License When the Police Take It for DUI?

    When a driver’s license is confiscated in Virignia, the police turn it in to the magistrate with a copy of the notice of administrative suspension. The magistrate then gives the license to the court clerk. The court clerk will keep the license until the suspension period is over, and then mail it back to the driver at the address on the license. Consequently, the driver will not get the license back until the administrative suspension is up and the license arrives in the mail. If the address on the license is incorrect, then the driver may not receive their license. Drivers may request that the court clerk hold the license for pick-up at the court clerk’s office.

    The police are not supposed to confiscate out-of-state driver’s licenses and the administrative suspension only applies to driving in Virginia. This means that if you are arrested for DUI in Virginia and have a non-Virginia driver’s license, you can drive anywhere except Virginia during the suspension period. Virginia driver’s license holders, however, cannot drive anywhere during the suspension period, even if they are outside of Virginia.

    Appealing an Administrative Suspension

    A driver can appeal an administrative suspension. If the suspension is appealed, the court must let the driver appear before a judge within the next business day. Contact an attorney immediately to see whether you may be able to void your administrative suspension. Also, read your attorney-client contract carefully to determine whether you will be charged extra for an administrative suspension appeal.

    Judicial Suspension for DUI etc.

    The second way that Virginia may revoke your right to drive is through the judicial process. If a person is found guilty of DUI for the first time, the judge (by law) must suspend that person’s license for 12 months. A second offense in ten years requires a mandatory suspension of three years. A third or fourth offense will result in an indefinite suspension of the right to drive.

    Conviction of refusal to submit to a breath/blood test with no prior convictions will result in a 12-month suspension of your driver’s license, and the suspension will be in addition to whatever license suspensions you may have pending for DUI or other charges.

    For all types of DUI and refusal to submit, the judicial license suspension is mandatory and neither the judge nor the prosecutor has the power to convict a person without also suspending their license for the full time period.

    The court may, under certain circumstances, grant a driver a restricted driver’s license. Restricted driver’s licenses are by definition “restrictive.” A restricted driver’s license limits when and where you can drive, and these restrictions must be strictly obeyed. If they are not, the driver may be charged with additional crimes.

    A first-time DUI offender may be granted a restricted license immediately upon registering for ASAP, but a second conviction within ten years means no restricted license will be granted for four months. If the second conviction is within five years, the driver must wait one year to apply for a restricted license. A third-time offender must wait three years to get a restricted license.

    Drivers convicted of refusal to submit are not able to receive a restricted license during the duration of their suspension for refusal to submit.

    DMV Suspension

    The final way that a driver can lose his license from a DUI conviction in Virginia is by DMV demerit points. Almost all of the DUI and DUI-related offenses (including refusal) are six-point offenses. The Virginia DMV has complete control over the driver’s license point system, and there is nothing a judge can do about it.

    For minor drivers, any demerit-point conviction means they must attend a driver improvement class. Failure to do so within 90 days results in a license suspension which lasts until the program is completed. A second point-conviction results in a 90-day license suspension. A third results in a suspension of one year or until the offender reaches age 18, whichever is longer.

    For adults, the accumulation of eight demerit points in 12 months or 12 points in 24 months results in an advisory letter from the Virginia DMV. The accumulation of 12 demerit points within 12 months or 18 points in 24 months results in a mandatory driver improvement class and six months of DMV driving probation followed by 18 months on a control period. The driver improvement program must be completed within 90 days or the driver’s license will be suspended indefinitely.

    Consequences of Demerit Points in Virginia (Adult Drivers)
     Within 12 monthsWithin 24 months
    8 pointsLetter from DMVNothing
    12 pointsMandatory driver-improvement classLetter from DMV
    18 pointsMandatory 90-day license suspension + driver-improvement class + probation for 6 monthsMandatory driver-improvement class
    24 pointsMandatory 90-day license suspension + driver-improvement class + probation for 6 monthsMandatory 90-day license suspension + driver-improvement class + probation for 6 months

    The accumulation of 18 points in 12 months or 24 points in 24 months results in a mandatory 90-day license suspension. Once that period has expired, offenders must complete driver improvement classes before their license can be restored. After restoration, they will be on probation for six months and a control period for 18 months.

    If a driver is convicted of any traffic offense while on DMV probation, his license will be suspended. The suspension will last 45 days for a three-point violation, 60 days for a four-point violation, and 90 days for a six-point violation. Once the suspension period is over, the driver will be placed on probation for an additional six months followed an 18 month control period.

    If a driver gets any demerit point moving violations while on the control period, the DMV will place that driver back on probation for another six months, followed by another 18-month control period.

    A driver should always get a copy of his driving record before trial and give it to their DUI attorney, so he can determine whether the driver is in danger of a Virginia DMV suspension. A DMV suspension can jeopardize a driver’s restricted license.

    Restrictive Driver’s License

    If convicted for DUI (but not for refusal to submit to a breath test), a Virginia driver may be able to get a restricted license. Check your attorney-client contract before signing it to make sure that your attorney will be obligated to assist you in the post-trial restricted license application process.

    Your judge must approve your restricted license application. The trial judge has the discretion to determine whether a driver can get a restricted license and what the restrictions will be.

    A restrictive driver’s license allows a driver to drive to and from home, work, for work, medical treatment, ASAP sessions, court, court-ordered child visitation, church, probation visits, delayed turn in, and/or school during very specific times. The restricted license states the addresses you can drive to and the hours during which you may drive to each. Driving outside those times or on anything but a direct path between the approved locations will result in a conviction for driving on a suspended license.

    The courts will ask for documentation of your health care needs, school schedule, or other approved needs and schedules, and the judge will set the times (for example, 7:00 – 9:00 a.m. and 4:00 – 6:00 p.m., Monday – Friday). Talk to your attorney about your schedule and driving needs to determine how much driving your local judges will allow.

    A restricted driver’s license may be conditional on the driver registering for ASAP, paying fines and court costs, getting evaluated by ASAP, or completing ASAP. The trial judge or the court clerk’s office will set the terms and conditions (if any) on when and how you can get a restricted driver’s license. Make sure your attorney-client contract includes provisions for applying for a restricted license and registering for ASAP.

    Ignition Interlock

    In Virginia, installing an ignition interlock is often a condition for receiving a restricted driver’s license. Ignition interlock is mandatory anytime a driver is convicted of any form of DUI (other than first-time DUI) without an elevated BAC (i.e. BAC must be lower than .15).

    The interlock system is a portable breathalyzer that is installed in the defendant’s car. The system comes with a key-chain style breathalyzer, and the driver must blow into the breathalyzer to start the car. He then must blow again every 15-30 minutes to keep the car running.

    If the device detects a BAC of .02 or above, the car shuts off. Furthermore, the results of the test are saved electronically so that if the driver has violated the terms of his restricted license, he may be charge with “DUI with a restricted license”. Blowing a .02 on the ignition interlock may also trigger a probation violation, and the driver may have to serve the remainder of his suspended jail sentence, pay the remainder of his suspended fine, and possibly lose his restricted license.

    The ignition interlock system costs approximately $70-$110 to install, and $60 (per system) a month to lease. A driver will need one system for each car he owns or drives. Sometimes a driver can petition the court to remove the ignition interlock after a certain period of time has passed. Talk to your attorney about this possibility.

    Operating a vehicle without ignition interlock after being required to do so by the court is a crime, and blowing into someone else’s ignition interlock is also a serious crime.

    Reinstating Your License After DUI

    A Virginia driver who was found guilty of DUI cannot get his driver’s license back until his suspension period has expired, he has paid approximately $175 in DMV reinstatement fees, and he has been reissued a driver’s license from the DMV. If a driver has any concerns about whether he can get his license back, he should contact the DMV and request a “compliance summary.” The summary will spell out all the conditions necessary for the driver to get his license back.

    Out-of-State Driver’s License

    The Virginia government (police, judge, or DMV) can suspend an out-of-state license holder’s right to drive in Virginia, but they are not allowed to confiscate an out-of-state license. If the police or bailiff confiscates your out-of-state driver’s license, you should notify your attorney immediately to begin the process of getting it back. Once again, check your attorney-client contract to make sure your attorney will not charge you extra for these services.

    Virginia can only suspend a Virginia driver’s license. If you have an out-of-state license, you can still drive anywhere outside of Virginia unless your own state suspends your license. Each state has unique rules and processes for determining whether to suspend a license based on a Virginia DUI conviction.

    What Happens if I Drive While My License Is Suspended for DUI?

    In Virginia, driving on a license suspended for DUI is a Class 1 misdemeanor. It can lead to up to 12 months of jail, one year of additional license suspension, 120 days of vehicle impoundment, and can cost up to thousands in fines, fees, and costs.

    Many people think that they can get away with a little bit of driving while their license is suspended. However, an officer in a cruiser can pull up behind you in traffic, run your license plate in 15 seconds, and potentially tell whether you are suspended. Driving on a suspended license is one of the most common criminal charges in Virginia.

    Preparing For Trial

    “What Do I Need to Do to Prepare for Trial?”

    How to Get the Most out of Your Attorney

    Get a DUI Attorney as Soon as Possible

    If you are arrested for DUI or refusal to submit to a breath test, get the best DUI attorney you can afford as soon as possible! You have several defenses and key rights that may expire within 14 days of being arrested. Without a DUI attorney, you may lose those rights.

    A good DUI & DWI attorney may also help you get your license back, get your car back, or get you a pretrial restricted license. You are likely going to pay the same price for an attorney no matter when you hire one, so you might as well hire one as soon as possible. Doing so will allow you to get the most for your money.

    Proving Innocence and Mitigating Damages

    There are two types of evidence helpful to a defense: 1) evidence that proves innocence and 2) mitigating evidence that proves you deserve a less severe sentence. Whether you are innocent or not, you need to gather both types of evidence.

    Write Down Everything

    As soon as you are arrested, write down all of the details you can remember. In Virginia, the prosecution does not have to notify your DUI defense attorney about the evidence it has against you before trial. You have very limited rights to find out the evidence against you before trial. Therefore, your attorney’s most important source of information is you.

    The most important details that you should write down are those concerning the conversations you had with the police. What questions did they ask you? What did you say to them? Did they read you your rights? Did the police notify you of your right to observe the breathalyzer results?  Write down as much information as you can, as soon as you can.

    Gathering Documents

    Do not procrastinate gathering evidence. Any documents used in court should be originals or certified copies. These documents take time to gather, so do not put off getting an attorney and gathering evidence.

    Some documents you will want are certified copies of your DMV records from all the states that have issued you a driver’s license in the last 5 years. Also, diplomas of defensive driving classes and documentation of alcohol treatment programs may be important. Make sure to keep all of the documents you received at the jail and get them to a DUI attorney as soon as possible.

    Register for ASAP

    Registering for ASAP before your trial may make it easier to get a restricted license. If you are likely to be convicted of DUI or “wet reckless”, registering for ASAP before the trial may allow you to get a restricted license sooner. Some judges will only grant a restricted license after the driver has been evaluated by ASAP, so preregistering can reduce the amount of time you spend without at least some driving privileges.

    Register for AA or Rehabilitation

    Drivers who may suffer from a substance abuse problem should consider beginning to attend AA or a similar drug or alcohol treatment program before trial. Your attendance in one of these programs may be kept quiet if you are found innocent, and it may be presented to the court as mitigating evidence if you are found guilty.

    Defensive Driving Classes

    In Virginia, attending defensive driving classes can restore up to five points to your driver’s license and may encourage a judge or prosecutor to give you a more lenient sentence especially if you have been charged with traffic offenses in addition to DUI.

    Restitution

    If a DUI results in an injury or the destruction of property, the driver, under the supervision of his attorney, may want to pay restitution to the other party before trial in order to increase the likelihood of a reduced sentence. However, make sure you consult an attorney first.

    Prepare for the Worst-Case Scenario

    Make sure that you are ready for the worst-case scenario on the day of trial. Do not drive yourself to the courthouse if there is a chance that you will be found guilty. If you are found guilty and lose your license or are sentenced to jail, you cannot drive home.

    Take the time before trial to get your finances in order so that you can pay any possible fines, ASAP fees, and other expenses on time. Arrange to take the time off work to go to court or to serve jail time. Also, leave all valuables (cell phone, cash, watches etc.) at home, so you will not risk losing them in the jail’s property room if you are sentenced to jail.

    Talk to your attorney about the implications of the various potential sentences, and prepare all aspects of your life for the worst-case scenario.

    Can I Get a Continuance?

    In Virginia, continuances are very important and should never be wasted. Continuances can be used to discover what evidence the prosecution has against the driver. The attorney can show up on the day of the trial, talk to the police and Commonwealth attorney, and find out what evidence they have. The attorney can then obtain a continuance in order to prepare a defense.

    Additionally, if the attorney you want to hire is not available on your trial date, that attorney may use a continuance to reschedule your court date. However, if you have wasted your continuances this may not be possible and you may have to settle on hiring someone else.

    In Virginia, being granted a continuance may increase the odds that the court will grant the other side a continuance should it ask for one. If the police officer, breathalyzer operator, or other witnesses do not show up at your trial, your attorney may ask for the case to be dismissed. However, if the court has already granted you several continuances, it may be more inclined to grant the Commonwealth a continuance instead of dismissing your case.

    Do not put yourself in a position where you will have to waste continuances. Find a quality DUI attorney immediately.

    Refusal of Breath or Blood Test

    Know Your Rights. Protect Your Rights.

    If your vehicle is stopped on a Virginia road, you are not legally required to take a field sobriety test, even if a law enforcement officer asks forcefully. However, a refusal to take a breath or blood test at the police station can have significant consequences. If you are convicted of first-time refusal, you are subject to a mandatory one-year loss of your driver’s license with no possibility of obtaining a restricted license.

    If you refused a blood or breath test and you want to reach the best possible outcome of your case, it is essential that you talk to an experienced DUI attorney about your legal rights and options. At Nichols & Green PLLC, we have successfully represented hundreds of drivers. Our attorney have an exceptional understanding of DUI laws and DUI prosecution — and the effect DUI can have on your life. Most importantly, we have an extensive track record of taking cases to trial, mounting circuit court appeals — and winning.

    In addition to extensive technical training, attorney Luke Nichols, who has retired from the firm, is the author of “The Virginia DUI Handbook” (2010). Contact Nichols & Green PLLC today for a free copy.

    Every Refusal Situation Is Different

    When it comes to DUI and refusal cases, every situation truly is different. Virginia DUI laws are complex, and many technological and forensic issues may come into play. Numerous possible defenses are at our disposal.

    If you have been charged with DUI, DWI or refusing a Breathalyzer or blood test, the lawyers of Nichols & Green PLLC can help you explore possible strategies and find the one that will help you reach your goals.

    Contact an Alexandria and Prince William County Field Sobriety Test Attorney

    Do you have questions about field sobriety tests, Breathalyzers or other critical DUI matters? Contact a defense attorney and a trained field sobriety test instructor, for a free consultation.

    Sobriety Tests and Breathalyzers

    “Did I Really Fail the Test?”

    A Quick Guide to Field Sobriety Tests, PBTs, and Breathalyzers

    With the exception of sobriety checkpoints, the police in Virginia must see something wrong before they can pull you over. If a police officer pulls a driver over for DUI without a legal justification, anything that officer discovers afterwards is inadmissible at the trial.

    Even after the police have pulled a driver over, the police are limited as to what they can do. If the stop was for a moving violation, the police can only detain the driver long enough to run a background search and write a ticket unless they discover evidence of another crime.

    If a police officer wants to do more than write a ticket, the officer needs evidence of intoxication to justify further actions. He must see erratic driving (for example, driving very slowly, straddling the line, hitting the curb, or driving in the wrong lane), or, after pulling over the driver, he must find other indicators such as glassy or blood shot eyes, slurred speech, the odor of an alcoholic beverage, an open container, or a lack of coordination.

    When an officer sees any combination of these things, he may decide to ask you to step out of the car and take a field sobriety test (FST) or blow into a preliminary breath test (PBT). Both of these tests are voluntary.

    Field Sobriety Test (FST)

    FSTs are a series of exercises or tests used to determine sobriety. Most of the tests examine two things: 1) motor control and balance and 2) the ability to follow instruction. Many of these tests are difficult even for a sober person. You are not legally required to submit to FSTs.

    In 1981 the National Highway Transportation Safety Administration (NHTSA) developed standardized field sobriety tests to be used by law enforcement nationwide.

    The three official NHTSA tests include very specific versions of the one-leg-stand, the nine-step-walk-and-turn, and the Horizontal Gauze Nystagmus tests.  While the Standardized Field Sobriety tests (SFST) developed by NHTSA are rigorously followed in many states, Virginia has no particular standards for administering FSTs.

    The FSTs used by the police in Virginia vary between regions, jurisdictions, and individual officers. Often, officers use variations of the same test that may or may not resemble the NHTSA tests.

    Some of the typical tests in Virginia include:

    •  The Nine Step Walk and Turn (walking heel-to-toe on a straight line, and then turning and walking back a specific number of steps)

    •  The One Leg Stand (standing on one leg without moving your arms and legs)

    •  Saying the alphabet, starting from a random letter and progressing forward or backward

    •  Counting between two given numbers, either forward or backward

    •  Touching your nose

    •  Touching your thumb and fingers while counting.

    •  The Rhomberg Balance test (also known as the internal clock test) (close eyes, tilt head back, and stand still for 30 seconds)

    •  The Horizontal Gaze Nystagmus test (HGN) (following a pen or finger with just your eyes).

    The Nine-Step-Walk-and-Turn

    The “walk-and-turn” test has several variations in Virginia but usually involves an officer asking a driver to stand on a line (real or imaginary) with their right heel touching the toes of their left foot while keeping their arms at their side.

    While holding this position, the driver is given instructions on how to perform the test. The driver then takes nine steps heel-to-toe along the line, turns 180 degrees by taking a series of small step, and walks nine steps back.

    During the test, the officer looks for eight clues of intoxication.

    1) Cannot maintain instructional position

    2) Starts test too soon

    3) Stops while walking

    4) Not walking heel-to-toe

    5) Steps off line

    6) Use arms for balance

    7) Loses balance on turn or turns incorrectly

    8) Takes wrong number of steps

    According to NHTSA, a driver must exhibit two of these eight clues in order to have “failed” the test. Virginia courts usually do not have a standardized definition of failure.

    According to NHTSA, in order for this test to be accurate the ground where the test is performed must be dry, hard, level, nonslippery with sufficient room to maneuver. It cannot be too close to traffic either. If you had to take this test under any of those conditions, notify your attorney immediately.

    This test’s accuracy is questionable if the driver is over 65 years old or has back, leg or inner ear problems (or any medical issues that affect balance or muscle control). This test should not be performed in heels that are more than two inches high or other footwear that makes it hard to balance (such as shape-ups, flip flops, or perhaps even barefoot.)

    If there is anything that made your test extra difficult tell your attorney immediately.

    The One Leg Stand

    The one leg stand begins with the driver standing at attention while the officer provides instructions. The driver is asked to lift one leg six inches off the ground while keeping his knee strait, arms at his side, and eyes on his elevated foot. The driver then counts “one one-thousand, two one-thousand” etc. until told to stop (usually after 30 seconds).

    While there are several variations of this test in Virginia, normally the officers are looking for four clues of intoxication.

    1)  Sways while balancing

    2)  Uses arms to balance

    3)  Hops

    4)  Puts foot down

    NHTSA guidelines state that a person who exhibits two or more clues, fails the test. In Virginia, most judges use their own experience and discretion to determine what is a failure.

    The one-leg stand should be performed on a dry, hard, level, and non-slippery surface. The driver should not be over 65 years old or more than 50 pounds overweight. He or she should not have back, knee, or inner ear problems, and should not be wearing more than two-inch heels.

    Weather conditions, traffic, distractions from the officer, and countless other things can also invalidate the results of the one-leg stand test. Talk to your attorney about any conditions that made it hard for you to perform this test.

    Horizontal Gauze Nystagmus (HGN)

    There is one FST that does not have anything to do with coordination and little to do with instructions: the Horizontal Gaze Nystagmus (HGN) test. Nystagmus is an uncontrollable tremor of the eye. All people have some nystagmus but intoxication causes it to become more readily observable in most people.

    The HGN test involves an officer holding a stimulus (a finger or a pen) in front of the driver’s face while watching the driver’s eyes.

    Before the HGN test begins the officer looks for nystagmus while the eyes are resting. If the officer sees resting nystagmus the HGN test is void.

    To begin the test, the officer has the driver hold their head still while following the stimulus with their eyes. The officer smoothly and slowly moves the pen or finger back and forth across the driver’s face and slightly above their eye line. First the officer looks to see whether the driver’s eyes smoothly track the stimulus, then the officer sees whether the driver’s eyes quiver while focusing on the extreme left and right, and finally the officer looks for nystagmus when the eyes focus on the stimulus at less than a 45 degree angle.

    According to NHTSA, the HGN is failed if the officer observes nystagmus in both eyes under at least two of the three conditions (e.g. eyes do not track smoothly and nystagmus at the extreme left or right).

    A driver may exhibit nystagmus for several reasons other than intoxication, including medical conditions and officer error.

    If the officer holds the stimulus too high it can create nystagmus. If the officer moves the pen too quickly back and forth it can cause nystagmus. If the test is administered in a location where there are quickly moving objects within the driver’s field of view (e.g. cars on the freeway) it may cause nystagmus. If an officer performs the HGN test repeatedly or takes too much time performing the test, the driver’s eyes may become fatigued and exhibit nystagmus.

    Because the correlation between intoxication and nystagmus is not something that the average person understands, some Virginia courts will not allow or give weight to HGN tests in a DUI trial. However, if you were given the HGN test make sure to talk to an attorney to determine whether the test was administered accurately and whether it may be used at trial.

    Preliminary Breath Test (PBT)

    There are two types of breathalyzers used in Virginia: 1) the preliminary breath tester (PBT) and 2) the evidential test device (ETD). The biggest difference between these machines is that the PBT is voluntary—you have the right to refuse blowing into a PBT! On the other hand, ETDs are usually mandatory if you have been arrested for DUI. You may be charged with refusal to submit to a breath test if you refuse to blow into an EDT!

    A PBT is a handheld device that police officers use on the side of the road to determine a driver’s blood alcohol content (BAC). It is a small, portable machine with a plastic tube or mouthpiece that the driver blows into. A PBT can only be used to justify an arrest; it cannot be used as evidence in a trial. Submitting to a PBT test is completely voluntary.

    An ETD is different from a PBT in several ways. For one, it is not portable. The machine is about the size of a large shoebox with a blow tube that sticks out from the side. For another, an ETD is usually attached to a printer and keyboard. All ETDs in Virginia are the same make and model (INTOX EC/IR II’s), and are kept at the police station rather than in police cruisers. Before blowing into an EDT in Virginia, a driver must be observed for 20 minutes. The driver must also be read a form letter stating that he must submit to the test, that he has the right to observe the results, and that he has the right to receive a copy of the printed results. The results of an EDT test can be used as evidence at trial.

    Remember, the most important difference between PBT and ETD tests is that a driver suspected of DUI does not have to submit to a PBT test, whereas a driver arrested for DUI must submit to an ETD test or face the charge of “refusal to submit”.

    PBTs are just machines, and, like all machines, they break. If a faulty PBT reading is used to arrest a driver, that arrest may be dismissed.

    The PBT measures BAC with a fuel cell that mixes a sample of breath with a chemical called platinum phosphoric acid. The alcohol and chemical react to create an electrical charge. A voltammeter in the PBT measures how much electricity is created and calculates the driver’s BAC.

    While PBTs are very convenient, they are less accurate than ETDs. Consequently, Virginia law states that the results of PBTs cannot be used against a driver in trial as proof of intoxication (Va. Code § 18.2-267(E)). Also, the law says that, unlike the ETDs found at the police station, drivers are not required to blow into PBTs. Any driver in Virginia who is accused of DUI may refuse to blow into a PBT, and his refusal cannot be used as evidence of guilt.

    However, if the driver voluntarily submits to taking a PBT, the police can use the PBT results as evidence that the driver was justifiably arrested for DUI. Do not agree to blow into a PBT.

    In order to use a PBT to justify an arrest, the police must do four things: 1) they must use an approved brand and model of PBT; 2) they must use and maintain the PBT according to the manufacturer’s instructions; 3) the PBT must be properly calibrated; and 4) the officer must inform the driver of his right to see the results of the PBT.

    The law requires the PBT to be used according to the manufacturer’s instructions, but it is unfortunately quite common for the police to ignore or forget those instructions. For example, the Alco-sensor III must not be used if the machine’s temperature is below 59° F (15° C) or above 96° F (36° C). However, most officers keep their PBT in the trunk of their patrol car where the machine is either very cold or very hot.

    Also, many PBTs are vulnerable to radio frequency interference (RFI) or radio signals from police officers’ communications devices. Radio signals that strike the extremely sensitive voltammeter can cause sporadic readings. If the digital read-out flickers or the screen blanks instead of providing a reading, then RFI may be influencing the PBT. If you see an officer using his radio near the PBT or having any of these problems, tell your attorney.

    PBTs cannot distinguish between alcohol fumes found in the blood and those found in the mouth or stomach. The PBT will likely give an erroneously high reading if the driver burped, vomited, or drank alcohol within 20 minutes before the test.

    Because PBTs ride around in the trunks of police cars all day, they need to be tested periodically and certified as accurate. There are guidelines for the regular calibration of PBTs and ETDs which a good attorney may use to get a PBT result excluded from evidence.

    Evidential Testing Devices (ETD)

    Drivers who are arrested for DUI in the Commonwealth of Virginia are brought to the police station to have their BAC tested with an Evidential Testing Device (ETD). All ETDs in the Commonwealth of Virginia are the same make and model: INTOX EC/IR II.

    Before an ETD test, the driver must be observed for at least 20 minutes. If he burps, vomits, or places anything in his mouth during the 20 minutes, the driver’s mouth must be cleaned out and the police must then observe him for another 20 minutes.

    Before the breath test takes place, the administering officer must read the driver a standard form which states that:

    •  The driver must submit to the breath test under penalty of law, and

    •  The driver has the right to observe the results of the test on the digital screen (not just on the print out).

    Every driver tested in Virginia should exercise the right to observe the results for himself.

    When a driver is ready to take the ETD breath test, he will blow at least two times. The machine will take two samples and print out the lesser of the two readings. If the machine detects any errors, an error screen will appear, and the machine will print out an error message that may be used as evidence of refusal to submit to a breath test.

    The INTOX EC/IR II works the same way as the PBT with two notable exceptions. First, the PBT uses only an electrochemical (EC) process to determine BAC while the INTOX EC/IR II uses EC and infrared (IR) analysis to determine BAC.

    IR analysis, called infrared spectroscopy, works by shooting infrared light through a sample of breath and measuring how much of the light makes it through the sample. The light is of a specific wavelength that is absorbed by alcohol so the less light that makes it through the breath sample, the greater the concentration of alcohol in the sample.

    The second difference between ETDs and PBTs is that the ETDs have the ability to detect certain errors. The INTOX EC/IR II can detect some levels of radio frequency interference (RFI). It can also detect alcohol left over inside the machine or in the air around the machine. In addition, it can run a limited self-diagnosis and will shut itself off if it detects certain errors.

    Despite all of these bells and whistles, the INTOX EC/IR II is still a machine and subject to error and technical glitches.

    All breathalyzers work on the principle that the alcohol in a person’s blood evaporates into the lungs at a predictable rate. These machines make assumptions about the BAC based on the percentage of alcohol in a person’s breath. However, as with all assumptions, there are potential flaws.

    Anyone who has watched a pot of water boil knows that as the water gets warmer, more of it evaporates (steams). Alcohol is the same. As the human body warms up, the percentage of alcohol vapors in the lungs rises. Breathalyzers do not take a person’s temperature; they simply assume that a person’s body temperature is 98.6°Fahrenheit. However, if the driver’s body temperature is over 98.6°when the test is conducted, then the machine will return an erroneously high BAC reading. Consequently, if a person has a fever, is dressed too warm, or is even left in a hot room too long, the breath test may be artificially high.

    Another flaw with breathalyzers (including the INTOX EC/IR II) is that they assume that all of the alcohol detected came from the driver’s lungs. Alcohol fumes from a person’s stomach, mouth, or throat are much more potent than the fumes from the lungs. A person that has recently consumed alcohol, burped, or vomited will produce a BAC breath result that is much higher than reality.

    Because of this problem, police officers in Virginia must “observe” the driver for 20 minutes before administering a breath test at the police station. During this time, they are supposed to look for signs that the driver has burped, vomited, or put anything into his mouth.

    If you drank, vomited or burped 20 minutes before taking a breath test, make sure you inform your attorney immediately.

    Another weakness of breathalyzers is one of all machines: they get old and break down. That is why the legislature mandates that any ETD used in Virginia needs to be calibrated by the Department of Forensic Science (DFS) every six months. In order to introduce an ETD result as evidence in a trial, the court may require breath technicians to produce evidence of regular maintenance and calibration of the ETD.

    Breathalyzer results may also be affected by the amount of breath sample given. When someone has been drinking, there are more alcohol fumes in the deepest portions of their lungs than there are at the top.

    The police want you to take a great big breath and blow really hard, so that you exhale as much of that alcohol-rich air in the bottom of your lungs as possible. Your attorney can obtain and examine the exact blow duration and breath volume for your test.

    Blood Testing

    If a driver is arrested for DUI and is suspected of being under the influence of drugs, or is physically incapable of giving a breath sample (e.g. he has passed out), the police may choose to take a blood sample in addition to or as a substitute for a breath test.

    A driver who has been arrested for DUI or DWI is required by law to submit to a blood test just as he is for a breath test. However, a driver must submit only if he has been arrested. If a driver is in the hospital and the police have not arrested him for DUI, they must ask for permission to take his blood sample. If your blood was sampled without your permission, talk to your attorney immediately to determine whether your rights were infringed upon.

    Whether a driver is under arrest is not always clear, especially when a driver is in the hospital and is not placed in handcuffs or taken away.

    Since 1995, the police do not have to offer the blood test as a substitute for the breath test. A driver can request a blood test, but the police do not have to give one. They often do not want to wait for the results of the blood test, which take longer. Requesting a blood test is not a complete defense to being charged with refusal to submit to a breath test. If a driver balks at submitting to a blood test the police must notify the driver that refusing to comply with the blood sample means they will be charged with refusal to submit.

    Blood tests, like the breath tests, are regulated by Virginia law. Failure to comply with the procedures and methods specified by law may cause the results to be excluded from a DUI trial.

    The person drawing the blood must be an approved medical worker. When blood is draw at the police station, the blood must be kept in two separate vials supplied by the Department of Forensic Science (DFS), and must be sealed and accompanied by two completed certificates of withdrawal. The vials must then be placed in a DFS-approved container and delivered to the officer.

    The vials then go to DFS and are tested for alcoholic content via a method called “gas chromatography.” Gas chromatography detects the amount of ethanol (the alcohol found in liquor) in the blood by vaporizing the alcohol in a specific quantity of blood and then quantifying the vaporized gas that escapes.

    After the test is complete, a certificate of analysis is produced. The certificate must contain certain mandatory information about the driver, and it must be returned with the nurse’s certificate of withdrawal to the court. Failure to return the certificate of analysis attached to the nurse’s certificate of withdrawal may result in dismissal of the case.

    The second vial is sent to DFS and is held for 90 days. The defense attorney can then have the vial sent to an independent laboratory for testing. If DFS loses the independent sample, the BAC results should be excluded from evidence. A good DUI attorney should always request independent testing, especially since the blood alcohol content of a sample tends to diminish after the blood is taken, and the second test will often be lower.

    Not all blood tests are performed by police personnel. Sometimes hospitals run the blood test, especially when the driver is hospitalized due to an accident. Because the law allows the results of hospital blood analysis to be used in trial, and because each hospital has a different process for drawing and testing blood, defense attorney dealing with blood samples need to be aware of the varying methods used to test BAC. This fact is another reason to hire an attorney that specializes in DUI defense.

    Typically, hospitals use the enzymatic method for determining BAC. However, one flaw of this method is that it tends to produce erroneously high readings if certain chemicals caused by tissue trauma are present in the blood. For instance, drivers who sustain bruises in an accident may produce erroneously high BAC readings.

    Blood-sample analysis is highly technical and requires a DUI attorney who is not only experienced but is also familiar with the forensic science behind these complicated DUI testing methods.

    Virginia DUI Laws

    “Is That Illegal?”

    A Description of the Laws Related to DWI/DUI in Virginia

    If you are reading this website, you probably have a lot of questions about what the law in Virginia says you can and cannot do. To know the law, you have to first know which level of government you are dealing with and who is enforcing the laws.

    There are several levels of government: city/town, county, state and federal. Each has its own drinking and driving laws, and each may have its own police force.

    The Virginia State Troopers enforce state law. The county police and sheriff’s department enforce state and county laws. The municipal police enforce municipal ordinances, though they can also charge people under state codes. Other law enforcement officers, such as university police, usually only enforce state laws.

    In the Commonwealth of Virginia there are 95 counties and 39 independent cities (such as Alexandria, Fairfax City, and Hampton). Inside those counties are towns which may have their own semi-independent judicial system (such as Vienna, Spotsylvania, and Herndon).

    Each county and independent city or town has the ability to create laws in addition to those created by the level of government above them. Consequently, if you are arrested for DUI, you can be charged with violating Virginia state law, the county code, or perhaps even a town or city ordinance.

    The laws on federal land are a little different. Drivers arrested in national parks fall under the jurisdiction of the National Park Service, and they are tried in federal courts and punished under federal law (i.e. the Code of Federal Regulations). However, civilian drivers arrested on military bases in Virginia or on federal facilities such as the Pentagon are tried under the laws of the Commonwealth of Virginia, even though the trials take place in federal courts.

    State, county, and city laws are usually the same but sometimes there can be major differences. It is always important to present your summons or arrest warrant to your attorney so he/she can know exactly which law you are being charged with violating and in which jurisdiction you are required to appear.

    DUI vs. DWI

    In Virginia, the judicial process uses the words DUI and DWI interchangeably. Technically, Driving Under the Influence (DUI) applies to intoxication via any form of drugs or alcohol while Driving While Intoxicated (DWI) generally refers to just alcohol. Whether your warrant says DWI or DUI, it really does not matter. The statute is the same and the consequences are the same so most people in Virginia use the terms interchangeably. Other states may draw substantial differences between the two, but Virginia does not.

    DUI (Driving Under the Influence)

    DUI is one of the most complicated criminal laws in Virginia, and having a competent attorney to represent you is absolutely essential. There are approximately 22 pages of DUI codes, endless case law on the subject, and 17 different categories of punishments that a driver can receive depending on how many convictions he has, his blood alcohol content (BAC), and the discretion of the judge.

    However, there are only five ways to be convicted of a simple DUI and Va. Code § 18.2-266 lists them all:

    1) Operating a motor vehicle while having a blood alcohol content (BAC) of .08 or above;

    2) Operating a motor vehicle while under the influence of alcohol (substantially impaired);

    3) Operating a motor vehicle while under the influence of any drug that impairs one’s ability to drive safely;

    4) Operating a motor vehicle while under the influence of any combination of drugs and alcohol which impairs one’s ability to drive safely; and

    5) Operating a motor vehicle while having more than very small and specific amounts of cocaine, methamphetamines, PCP, or ecstasy in one’s blood.

    The most common way to be convicted of DUI is to have a blood alcohol content (BAC) of .08 or higher. The law does not require a driver to be drunk to commit a DUI. An experienced drinker may be convicted of DUI no matter how safely he operates his vehicle if his blood alcohol level is over .08.

    The same is true for cocaine, meth, PCP, and ecstasy. Even if the driver was not “intoxicated” at the time he was driving, he can be convicted of DUI if his blood contains more than a specified amount of one of those drugs.

    Drivers can also be convicted of DUI when they have a BAC of less than .08 but are “substantially impaired”. Drivers may be found guilty of DUI if the police officer can prove that the driver’s ability to drive was impaired by alcohol. Consequently, a driver who is texting or talking on a cell phone after having only one or two drinks may be arrested for DUI and their distracted driving may be attributed to intoxication.

    DUI is not just for alcohol. Any drug that affects your ability to drive safely can potentially lead to a DUI conviction. Over-the-counter allergy medicines, cough syrup, necessary prescription medications, and seemingly innocent drugs can affect your ability to drive and result in a DUI conviction. In Virginia, any medication or drug that affects your ability to drive can theoretically result in a DUI.

    “Operating” Defined

    Frequently, cases come up where the police arrest a person for DUI when that person is sitting behind the wheel of a parked car. The question is whether sitting in a parked car is “operating” the vehicle.

    In Virginia, a person is operating a vehicle if they are behind the wheel and the keys are in the ignition and any of the electrical or mechanical systems are engaged. This may be true even if the vehicle is immobilized (e.g. stuck in a ditch or stopped with a flat tire). However, if you are charged with DUI and the officer did not see you behind the wheel or did not see the engine on, contact an attorney immediately to discuss whether the commonwealth can prove you were “operating” the vehicle.

    Public Roads vs. Private Roads

    Some of the DUI and refusal laws only apply on “public highways” in Virginia. However, do not be fooled. A “public highway” really means any road surface open to the public. It also includes government-run private road surfaces like toll roads and parking lots of private government buildings. If a person is caught driving on private property, like a parking lot or driveway, then the issue is whether it is open to the public. This is a very technical legal issue and should be brought to your attorney’s attention immediately.

    Involuntary Intoxication

    What happens if you did not mean to get drunk or intoxicated? Involuntary intoxication is a potential defense to DUI in Virginia. If a person did not intentionally ingest drugs or alcohol or was not aware of the nature of what he was ingesting, he may not have committed a DUI. The most common example is when someone takes a new prescription medication that has an unusual and unforeseen side effect while driving.

    DUI for Drivers Under 21 (Baby-DUI)

    Do not let the name fool you. Baby-DUIs are serious stuff. Va. Code § 18.2-266.1 makes it illegal for anyone under 21 to drive with a BAC of .02 or higher. However, if a person under 21 has a BAC of .08 or more, then he can be charged under the normal DUI statute. Many underage drinkers do not realize that they can be arrested for DUI after consuming very little alcohol.

    DUI After Driver’s License Is Revoked, Suspended, or Restricted

    According to Va. Code § 18.2-272 (B), it is a crime for certain persons who have had their license revoked, suspended or restricted, to drive with a BAC of .02 or above. This law is problematic for drivers with restricted driver’s licenses, who think they can have two beers and still drive because they are not drunk. The consequences of a conviction of 18.2-272 are very similar to DUI, but a conviction means revocation of a restricted driver’s license for one year and can also result in the driver’s car being impounded for up to 120 days.

    Refusal to Submit to Breath or Blood Testing

    Va. Code § 18.2-268.3 states that every person who is arrested for DUI within 3 hours of driving on any public road in Virginia has to submit to a breathalyzer test, a blood test, or both.

    Before charging a driver for refusal to submit the police officer who arrested the driver must first read a form explaining the refusal law to the driver and then offer the driver one more chance to comply with the test.

    Transporting a Minor While Under the Influence

    Va. Code § 18.2-270(D) increases the penalties for DUI if it was committed while there was a minor (anyone under 18) in the car. These penalties include mandatory jail time and increased fines.

    If you are arrested for DUI and there was a minor in the car make sure to inform your attorney as soon as possible.

    DUI-Related Child Abuse/Neglect

    Being arrested for DUI while having a minor in the car can, in more egregious cases, be considered felony child abuse under Va. Code § 18.2-371.1(B). The Virginia Court of Appeals has upheld cases where mothers arrested for DUI were also convicted of felony child abuse because the court believed that driving drunk with a minor in the car demonstrated “reckless disregard” for the life of the child.

    DUI and Maiming

    In addition to the various codes dealing with vehicular homicide, Va. Code § 18.2-51.4 creates a special felony for anyone who severely injures another person while driving under the influence. Conviction can result in up to five years in prison, indefinite loss of license, lawsuits, and many other extremely serious consequences.

    Driving with an Open Container

    Under Va. Code § 18.2-323.1, it is a crime to drive on any public road while drinking alcohol or having alcohol within the reach of the driver unless it is sealed in a factory-sealed container. Driving while drinking or with an open container can also be used as evidence in a DUI case.

    DUI While Driving a Commercial Vehicle

    Drivers of commercial vehicles can be charged under either of two DUI laws that are unique to commercial vehicles. Va. Code § 46.2-341.24(A) is exactly the same type of crime as a regular DUI with the same five ways to be found guilty. However, Va. Code § 46.2-341.24(B) states that a driver of a commercial vehicle can be arrested for DUI with a BAC of .04 or more.

    Drivers who have a commercial driver’s license (CDL) should not hesitate to get an attorney if they are arrested for DUI or similar offenses. The consequences of DUI are much more serious for drivers who have CDLs. CDL holders cannot get restricted driver’s licenses after a DUI conviction even if their DUI was not committed in a commercial vehicle.

    Wet Reckless

    Va. Code § 46.2-852 defines “reckless driving” as driving in a manner so as to endanger the life, limb or property of any person. “Wet reckless” simply means a driver is charged with reckless driving instead of DUI. Reckless driving is still a serious criminal charge, but police officers sometimes use this charge when they lack sufficient evidence of DUI. Typically this happens at the scene of an accident where the driver has a BAC that is over .04 but lower than .08.

    Drunk in Public (DIP)

    Va. Code § 18.2-388 makes it a crime to be intoxicated while in public. This charge may be used in cases where the officer finds the driver outside their car at the scene of an accident and cannot prove that they were driving the vehicle.

    Assault/Battery of an Officer

    Assault under Va. Code §18.2-57 is a grossly misunderstood charge that is often used as leverage against a driver who has been aggressive with officers during a DUI arrest. “Assault and battery” means any harmful or offensive touching, or putting someone in immediate fear of harmful or offensive touching. A touch does not have to hurt or injure to be battery, and it does not even have to make contact to be assault.

    Poking an officer in the chest, waving your fingers in his face, taking a swing, kicking, or even thrashing around could potentially qualify as assault on a police officer even if no one was hurt.

    Assault on a police officer in Virginia is a Class 6 felony and carries up to five years in prison and a $2,500 fine.

    If you were charged with assault on an officer or even if the officer threatened to charge you with assault, tell your attorney immediately. It may be used against you in your DUI trial.

    Obstruction of Justice

    A person investigated for DUI can be charged with obstruction under Va. Code §18.2-460 if he 1) obstructs law enforcement officers in the performance of their duties, 2) threatens or attempts to intimidate officers, or 3) knowingly makes false statements to the police while they are investigating another driver or person.

    Obstruction of justice is a Class 1 misdemeanor and is punishable by a maximum of 12 months in jail and a $2,500 fine. If you are accused of (or even threatened with) obstruction, notify your attorney immediately.

    Resisting Arrest (Misdemeanor Fleeing)

    Under Va. Code §18.2-479.1, “resisting arrest” means fleeing from the police after the police try to arrest you. Fleeing can mean running or walking only a few steps. Resisting arrest is a Class 1 misdemeanor and is punishable by a maximum of 12 months in jail and a $2,500 fine. If you are arrested for DUI, just relax and call your attorney, resisting arrest may be used against you in your DUI trial.

    What to Expect at a DUI Trial

    “What is Going to Happen at the Trial?“

    What to Expect on the Day of your DUI Trial

    The typical judicial experience in Virginia can vary wildly between jurisdictions. In Hampton, some judges move so fast that drivers plead and are sentenced before they reach the front of the courtroom.

    In other jurisdictions, the court moves very slowly. In Rockbridge County, the single courtroom may have less than 20 cases a day, while a single Fairfax County courtroom may have up to 200 cases before noon.

    Beyond the amount of cases, each jurisdiction has its own method of running the courts. Most courts begin the docket by getting the quick business out of the way: motions, continuances, and unrepresented drivers pleading guilty. Larger courts often organize their cases by police officer, starting with the officer with the fewest cases.

    Usually, the courts will call out the names of people without attorney, setting aside the defense attorney’ cases for last. It is always important to sit in the courtroom and listen for your name unless your DUI attorney counsels otherwise.

    Negotiating Before a DUI Trial

    When the court begins the docket, the Commonwealth attorney will often have time to talk to police officers, witnesses, and defense attorney. Within the first 45 minutes or so, the defense attorney will often have an opportunity to talk to the prosecutor.

    The defense attorney will get to hear the evidence against her client and start negotiations for a possible plea deal. Smaller jurisdictions may allow the defense attorney to negotiate the plea before the trial date, but in the larger jurisdictions, the prosecutors of misdemeanor cases almost always refuse to negotiate until the day of the trial because they are too busy or unable to review the case before the day of the trial.

    What If I Am Late to my DUI Trial?

    Most traffic cases start between 9:00-11:00 a.m. Make sure you know the exact time and date of your case. Show up early. Failure to show up at your trial may result in the judge issuing a bench warrant for your arrest. You may lose your bail and be forced to wait in jail until your new trial date. You do not want to have this happen to you, so plan to arrive early and allow time for contingencies such as flat tires, traffic, or choked security lines.

    DUI Plea Agreements

    After a DUI attorney has had an opportunity to negotiate with the prosecution, the client will have an opportunity to either accept or reject the terms of the plea. If the client accepts the terms of the plea, the defense attorney will present the plea agreement to the judge.

    Plea agreements are not set in stone. After a guilty plea, a judge has the right to alter plea deals if she wants to. Most plea agreements are just suggestions to the judge rather than a binding agreement. If a judge does alter the agreement, the defense attorney may ask to retract the guilty plea. If the judge does not retract the guilty plea, the DUI defense attorney may appeal to the Circuit Court and retry the case. However, most judges rarely alter the plea agreements.

    DUI Trial

    If a client does not accept a plea agreement, he can still decide whether to plead guilty, not guilty, or no-contest. (There is no difference between pleading “guilty” and “no-contest.”) The defendants pleading “not guilty” are usually the last people in the courtroom to be heard.

    If a client pleads “guilty” or “no-contest,” the court will usually only discuss the issue of what the sentence should be. If the client pleads “not guilty,” the court will have a trial and discuss the issue of guilt. If the defendant is found guilty, the court will then discuss the sentence.

    Paying DUI Fines and Costs

    After the judge rules, a client who is found not guilty is free to go. If a client is found guilty, he will have to pay fines, fees, and court costs, and he must register for ASAP and possibly get a restricted license. A driver will have 15 days (from the date of trial or release from jail –whichever is later) to pay fines and costs, and register for ASAP.

    Most courts will allow a driver to set up a payment plan for a small additional price ($10 or more). Most courts will allow the driver to postpone payment if arranged with the court in advance. A few courts have community service programs that they offer in exchange for paying fines or costs. Most drivers will never hear about any of these options unless they have an attorney who has agreed to represent them through the post-conviction process.

    If a driver does not pay his court costs or comply with the ASAP program, he may be found in violation of the terms of his probation and be sent to jail. Failure to pay fines and register for ASAP may also prevent the driver from getting a restricted driver’s license. The driver cannot get his license back after the 12-month period without having paid all the fines and costs.

    What Do I Do if I Am Late or Miss My Trial Date?

    If you are going to be late or miss your trial date, call your attorney immediately. If you can contact your attorney before the judge issues a bench warrant, the attorney can ask the judge to either push her client’s case to the very end of the docket or ask for a continuance and set a new trial date.

    If the client does not talk to his attorney until after a bench warrant is issued, the attorney can file a motion to appear before a judge and ask the judge to remove the bench warrant. The client must appear before the judge with his attorney. If the judge refuses to remove the warrant, the judge will set bail and the client will be arrested or issued a summons for the charge of failure to appear.

    What Happens if the Officer Does Not Show to My DUI Trial?

    If the officer or any other witness does not show up to the trial, the prosecution can choose to ask for a continuance or attempt to move forward without their witness. If the prosecution asks for a continuance the judge will listen to the opinions of the prosecution and defense attorney and decide whether to continue the case. If the defense has received continuances in the past, the odds of the prosecution receiving a continuance may be higher.

    If the witness is essential to the case and does not have an excuse for being absent, the judge may force the prosecution to move forward with the case. At that point the prosecution can either drop the charges or attempt to try the case without the witness.

    If the prosecution drops the charges then they have the option to reinstate the charges later. If it is a misdemeanor then the charges cannot be reinstated later than one year after the offense date. If the charge is a felony then the prosecution may reinstate it at any time. If your charges are dropped by the prosecution your DUI attorney can advise you of the likelihood of the charges being reinstated.

    If there is a trial and the judge dismisses the charges against you then those charges cannot be reinstated by the prosecution.

    Obtaining a Restricted License

    A driver found guilty of DUI (but not refusal to submit) needs the judge’s permission to obtain a restricted license. The driver must also comply with any conditions set by the court (e.g. pay fines and costs, or be evaluated by ASAP).

    To apply for a restricted license, the driver will need to supply the court with the exact times and locations of the places to which he needs to drive (such as work, school, and church). If the driver wants to drive to health care providers, school, or day care, he must have documentation of these needs and the times and locations of these events.

    The judge may or may not grant the restricted license, or she may grant it under the conditions of the court’s choosing. This can be problematic for clients who drive for work or who go to work at different times each day. It is essential to have an attorney available to help with this process, especially if you do not have a typical Monday-through-Friday, nine-to-five job.

    If a driver is not happy with the restrictions on their license or need to change the restrictions, the driver may make a motion to amend their license. Make sure your attorney-client contract guarantees your attorney’s help in obtaining or amending a restricted license.

    Once a driver gets a restricted license, he must carry it with him whenever he drives. Furthermore, he may only drive during the times stated on the license and between the locations approved on the license. If ignition interlock is required as a term of the driver’s probation, the interlock system must be installed and the restricted license be marked with proof of installation before the driver may use the new restricted license. Failure to do so may result in additional charges and more severe consequences, including jail time.

    If a driver has a commercial driver’s license (CDL), the DMV will not issue a restricted license even if the judge approves it. If you have a CDL, make sure that you inform your attorney as soon as possible.

    Suspended Sentences

    Typically, a judge will hand down a sentence with the majority of the jail time suspended. This kind of sentence is a form of “inactive probation.” This means that the driver is on probation but does not have to report to a probation officer. Instead, the driver must simply complete the ASAP program, pay fines and costs, and avoid any other convictions or serious traffic offenses.

    The judge will also declare a period of time for the probation to end. Typically, this period is one or two years. If the driver violates the conditions of his probation (for instance, does not attend ASAP or gets another DUI or other criminal conviction), he may be required to appear before the judge to determine how much of the suspended sentence he will have to serve. Many judges typically require the entire suspended sentence be served for any violation of probation. The suspended jail time will be in addition to the sentence for any subsequent convictions.

    If you have a suspended sentence or probation from a previous conviction and are arrested again, immediately get an attorney and tell your attorney. Also, make sure you hire a DUI attorney who will walk you through the ASAP and restrict driver’s license registration process, so you can avoid accidentally violating your probation.

    Registering for ASAP

    A driver who is sentenced to attend the Alcohol Safety Action Program (ASAP) as part of his probation must register within 15 days of his trial or release from jail. Without registering for ASAP, the driver cannot get a restricted driver’s license, and he may even be sent to jail for the remainder of his suspended sentence.

    After registration, drivers will have an intake interview and be assigned a case manager who will decide whether they have a substance abuse problem. Drivers without any special substance abuse issues will typically be assigned to a 20-hour, ten-week program that meets once a week at the same time every week for two hours per session. Those drivers with alcohol or other substance abuse problems will take different classes depending on their specific addictions and the availability of classes in their county. The more intensive programs can costs thousands of dollars and involve anything up to mandatory inpatient rehabilitation. Talk to your attorney in detail about the different possible ASAP programs in your area. Elevated BAC, multiple DUI convictions, and drug convictions are among the automatic triggers for mandatory ASAP enrollment.

    Failure to sign up for or complete ASAP can cause a driver to violate his probation. If a driver does not show up for an ASAP class, he risks being sent to jail.

    When Can I Drive Again?

    A Virginia driver who was found guilty of DUI must surrender his license to the bailiff of the court. If a driver does not turn over their license to the court, the suspension will still take effect but the suspension period will not begin until the physical license has been surrendered. This means that if a driver has a 12-month suspension period, they will get their license back 12 months after they surrender it to the court.

    Drivers do not get their license back automatically, after the end of the suspension period. A driver who has completed the suspension period cannot get his driver’s license back until the suspension period has expired, he has paid the approximate $175 DMV reinstatement fee, and he has been issued a driver’s license from the DMV.

    If a driver has any concerns about whether he can get his license back, the driver should contact the DMV and request a “compliance summary.” The summary will spell out all of the conditions necessary for the driver to get back his license.

    Will a DUI Affect My Concealed Weapon Permit?

    Yes, A DUI or DWI can affect your ability to get and perhaps even keep your concealed weapons permit in Virginia.

    Va. Code 18.2-308.09(9) Makes it illegal for anyone with a DUI or DWI conviction to get a concealed weapons permit if they have been convicted of the following crimes within 3 years prior to their application:

    Va. Code 18.2-308.10 states that you cannot renew your 5 year concealed weapon permit if you have been disqualified for committing the crimes listed in V.A Code 18.2-308.9. Va. Code 18.2-308.13 state that the government can revoke your permit if you are convicted of an offense that would disqualify you from being able to get a concealed weapon permit.

    If you get a Drunk in public, DUI or DWI in anywhere in the US, you may lose your concealed weapon permit or lose your ability to get a concealed weapon permit in Virginia.

    Ways to Prevent Losing your Concealed Weapon Permit Because of DUI/DWI

    If your DUI or DWI occurs anywhere other than Virginia, that conviction should only affect your concealed weapon permit if the DUI/DWI laws of that state are substantially similar to Virginia’s DUI and DWI laws. Defining substantial similarity is a complex topic that we regularly encounter in DUI law. If you want to know whether your prior out-of-state DUI or DWI conviction will affect your Virginia concealed weapon permit then call Nichols & Green PLLC for a free consultation.

    Another defense to losing your concealed weapon permit because of a DUI is to argue that the laws regarding DUI are only relevant when applying for a concealed weapon permit NOT renewing or revoking it. Va. Code 18.2-308.09(9) states that you are barred if you have been convicted of DUI 3 years PRIOR to applying for the permit, not within three years after application. If a person is convicted of a DUI after application then they are technically not in violation of Va. Code 18.2-308.9(9). This argument has worked for us in the past.

    The final way to defend your concealed weapon permit is to not get convicted of DUI. If you are charged with a DUI, DWI or drunk in public charge call Nichols & Green PLLC (703) 383-9222 for a free consultation. We defend hundreds of DUIs and will be happy to talk to you about your case and the possible defenses you may have.

    Call Nichols & Green PLLC (703) 383-9222 if you have been charged with a DUI, DWI or Drunk in Public and you have or want a concealed weapon permit.

    Your Rights Before and During an Arrest

    “Can They Really Do That?”

    Your Rights Before and During an Arrest

    In order to enjoy your rights, you have to exercise them. Even though police officers cannot force you to do something they can always ask. There is almost nothing an officer cannot do if you give that officer permission. Unfortunately, it is not always easy to tell when an officer is asking and when an officer is demanding; both tend to be equally intimidating.

    In Virginia, there is a fine line between an officer ordering you to do something and an officer asking you to do something. If an officer says, “Please get out of the car,” is that a request or an order? If it is a request and you get out of the car, then you may have consented to give up the right not to be removed from your car.

    If you ever have any doubts about whether you are required to obey a police officer, clearly and politely ask them whether they are ordering you. If they are not ordering you to do something, refuse. If they are ordering you, obey the order and hire a good DUI attorney. Any evidence obtained by violating a driver’s rights may not be admissible in court.

    What Is My Right to Remain Silent?

    In a DUI stop you do not have to answer any questions. You only have to show your driver’s license and your registration. If you must obey a direct order from the police officer, do so in silence.

    Remember that police officers’ most effective tools are their mouths. Officers never ask casual questions. When a police officer approaches you, everything the officer says is calculated to extract evidence. Officers in Virginia are good at what they do.

    In a DUI situation, police will ask you several questions: “Do you know why I pulled you over tonight?” “Have you had anything to drink?” “How much have you had to drink?” “What did you have to drink?” “When did you have your last drink?” “Where were you drinking?”

    These questions are designed to collect evidence against you. If nothing else, they want you to talk to them in order to see whether you are slurring your speech.

    Officers may use your conversation as evidence against you. Comments which seem innocent on the surface may be harmful at trial. For example: If you do not answer questions quickly the officer may testify that you were slow and unresponsive (presumably because you were drunk). If you say that you are lost or if you don’t know exactly which street you are on then it may be interpreted that you were so drunk you did not know where you were.

    Do not talk to the police, whether you are in your car, on the side of the road, in the police cruiser, at the jail, or in front of a magistrate. Anything you say can be used against you. Simply hand them your ID and registration, and say nothing. Then hire the best attorney you can afford.

    What Is My Right to an Attorney?

    Your right to an attorney means that you have the right to have an attorney present during an interrogation. It also means that you cannot be tried and sentenced to jail without the opportunity to have an attorney represent you in court.

    Most people do not get a chance to call their DUI attorney until two to eight hours after being arrested. However, as soon as you are arrested, you have the right to have your attorney present during an interrogation (but not during the breath test).

    If you clearly tell a police officer that “I do not want to talk to you until I have talked to a DUI attorney,” that officer is not allowed to ask you any more questions that are designed to gather evidence.  If the officer continues to ask you questions, just repeat that you do not want to talk until you get an attorney. Tell your attorney what happened. Any evidence collected by interrogating a driver after he asks for an attorney may not be admissible in court.

    However, if you voluntarily start talking and tell the police information without being asked, anything you say can be used against you.

    What Are the Miranda Rights?

    On television, when the bad-guy is arrested, the police say something along these lines:

    “You have the right to remain silent. Anything you say or do may be used against you in a court of law. You have the right to an attorney. . . “

    These rights are called the Miranda rights, and the police are not allowed to interrogate someone who has been placed in custody until they have told that person their Miranda rights. If the police interrogate you after arrest but before reading you your Miranda rights, the results of that interrogation may be inadmissible in court. The best way to protect your Miranda rights is to remain silent throughout the entire DUI stop, arrest, and booking process.

    Do I Have to Take a Field Sobriety Test (FST)?

    FSTs are a series of exercises or tests used to determine sobriety. Many of these tests are difficult even for a sober person. Any test that you take on the side of the road is completely voluntary. The police cannot make you take any field sobriety tests. Never submit to field sobriety tests.

    Can They Impound My Car?

    When a driver goes to jail for DWI, if the car is not already legally parked, the car is towed and impounded. An impound yard charges the owner about $120 plus $60 per day. However, if the police are in a good mood and there is a sober, licensed driver nearby, they might let the other driver take the car home or park it. The police will not park your car for you. One of the advantages of being polite to the police is that they will be more likely to let someone park your car or drive it home for you.

    If your car is legally parked or if there is a sober driver present who can take the car home and the police impound the car anyway, it may be because they wanted to search the car. If the police legitimately impound a vehicle they are allowed to do a limited search of the vehicle and can use what they find in the car against you. If the police impounded your car even though it was legally parked or there was a person to drive it away, tell your attorney because your rights may have been violated by the police in order to search your car.

    Can They Search My Car? Can They Search Me?

    The police can search anyone anywhere at anytime—if they are given legitimate permission. Consequently, police usually ask to search whether they have the right to search you or not. If you allow them to search, it does not matter whether the search was justified. Never agree to be searched!

    Some drivers give up their right not to be searched because they believe that the police are going to search them anyway. That is not always true. However, even if the police do search you, there is always a chance that any evidence they find may be thrown out if you did not consent. Never give up your right to not be searched. If you are ever asked to be searched, tell the police clearly that you do not give them your consent.

    If the police used intimidation to get your consent to search, or if you felt you did not have a choice, tell your attorney immediately. Any evidence found through aggressive tactics may be excluded from court even if you allowed the police to search.

    Do You Have to Take a PBT-Breathalyzer Test?

    In the Commonwealth of Virginia, you do not have to submit to a Preliminary Breath Test (PBT). The PBT is a small handheld breathalyzer machine that is a little bigger than a TV remote control. It is carried by the police in the field and is administered on the roadside. By Virginia law, the police officer must inform you that you do not have to submit to a PBT and inform you that you have the right to see the results. Do not submit to a PBT.

    Do You Have to Use the ETD Breathalyzer?

    The law in Virginia requires you to submit to being tested by an Evidential Test Device (ETD) if you are arrested for DUI within three hours of driving on any public road. If you do not submit you will lose your right to drive for one year. However, refusal is not a criminal offense if you have never been convicted of DUI or refusal before.

    ETDs are larger, more accurate breathalyzers that are used only at the police station. They are about the size of a shoebox and have a keyboard and printer attached.

    Before blowing into an ETD, the officer administering the breath test must observe you for 20 minutes. The officer should also read you a notice that explains that the law requires you to submit to the breath test.

    Refusal to submit to a breath test in Virginia will result in the suspension of driving privileges for one year without an opportunity for a restricted driver’s license. Being convicted of refusal to submit within ten years of being convicted of a DUI or a prior refusal to submit will result in a three-year suspension of one’s driver’s license, up to six months in jail, and up to $1,000 in fines.  If a person refuses to submit after two convictions of DUI or refusal (or a combination of the two) within the last ten years, he will lose his driving privileges for three years, face up to 12 months in jail, and be fined a maximum of $2,500.

    Driving suspensions for DUI and refusal to submit will run back-to-back. A person who is convicted of his first DUI and first refusal to submit at the same time will lose his driving privileges for two years (one year for DUI and one year for refusal). A person with a prior DUI who is convicted of a second DUI and first refusal to submit will have his license suspended for six years (three for the second DUI and three for refusal to submit). Drivers convicted of refusal to submit cannot get a restricted license during the suspension period.