4th Oct 2013
To start with, the terms: drunk driving, driving while intoxicated, DUI and DWI are the same thing and all charged under 18.2-266 of the Virginia Code of 1950, as amended, and are used interchangeable on this website. If you are under 21, then you may have been charged under 18.2-266.1. If you are accused of being under the influence while boating (BUI), then the charge is under 29.1-738.
The law firm has years of experience successfully defending clients charged with DWIs where clients have Refused to blow into the breathalyzer machine, cases where in fact clients have blown into the Breathalyzer machine (currently the machine used by state and local law enforcement agencies is the Intox EC/IR II), DWIs involving accidents, BAC based on blood results, and almost all other scenarios.
We have all heard of the phrase K.I.S.S. which means Keep It Simple Stupid. Well, when it comes to DUIs, the only ones that want to keep it simple are the prosecutors (also known as the Commonwealth Attorney). They want to keep it as simple as possible: you drank, you drove and hence you are guilty of DUI.
Allowing a prosecutor to keep a DUI case simple, may mask over errors made by the police; errors with the Intox EC/IR II (this can include with the documents maintained by the Virginia Forensic Department of Science for these machines, the necessary police procedure leading to (or after) being able to have the results admitted in court or in the administration of the machine in a client’s particular case); or whether the Commonwealth Attorney has met the Constitutional burdens of 1. reasonable suspicion based on articulate facts to stop a vehicle 2. probable cause to arrest and 3. proving guilt beyond a reasonable doubt at trial to name a few things.
Do not hire a lawyer who doesn’t have a comprehensive and expansive knowledge on DUIs. What your DUI lawyer does not know will hurt you.
Our law firm does not view a DUI as a simple criminal charge. In fact, we view it as 3 separate but interconnected components: comprising of evidence, police procedure and science. Below is a general discussion of these three components:
Science is obviously relevant in defending against a DUI. A defendant is alleged to have consumed an external substance that as a consequence interacts with the blood and the brain, flows into the stomach and eventually hits the central nervous system.
Another obvious point is that consumption of alcohol does not have an automatic, instantaneous effect on most individuals which can be due to many factors including whether and when an individual last ate, what type of alcohol is being drunk, how quickly an individual drinks, weight and body of each individual. The law firm is in regular consultation with toxicologists (expert scientists who exclusively study, train and have worked as professionals in understanding the affect of alcohol on the body) on cases that warrant such consultation.
If you ended up providing a breath or blood sample, then that involves science too. Giving a breath sample by itself is meaningless, unless their is a scientific instrument that can correctly measure the alcohol in it. This sometimes can raise issues about accuracy or precision of the machine itself, or its administration and whether it made a proper determination of BrAC (BrAC stands for Breath Alcohol Concentration — a breathalyzer machine tests for BrAC not BAC).
An inherit weakness of defending a DUI is that the witness often against you is a police officer who has specific training in DUI based on NHTSA standards (National Highway Traffic Safety Administration) who has mostly likely been in front of the same judge many times. The same judge that will hear your case.
So does that mean game over? Maybe for some lawyers it is, but that is not our view point. We have a different view: it’s true that the police officer is a witness but also he or she is an active participate in the DUI event, including whether the stop was proper, gathering of evidence, which can include which and how non-standardized and standardized Field Sobriety Tests are administrated, Preliminary breath test, and so on.
The goal when dealing with police procedure is to seek errors (which are too many to list here) and hence to prevent the Commonwealth from admitting evidence due to faulty police procedure.
Another favorite of the law firm is to flip on the head what initially appears to be incriminating evidence. The best way to describe this is with an example. In one case, the police officer wrote in his DUI checklist that the defendant was swaying and falling down, which sounds pretty bad.
Yet in the same DUI checklist, for the walk and turn and one legged stand the officer did not state that the defendant was swaying or falling. How is it possible that a defendant can’t even stand on two legs yet somehow is capable of preventing himself from swaying nor falling down when standing on one foot for 30 seconds?
Suddenly what appears like damning evidence really becomes a question of police credibility (the flip).
We are always looking for these internal inconsistencies in the polices’ testimony or DUI checklist.
In a criminal case, such as a DUI, the burden of proof to secure a conviction in Virginia is beyond a reasonable doubt.
But what does that really mean? [read more=”Read more” less=”Read less”]
In a nutshell, it means that the Commonwealth has to present evidence and argument that in a judge’s mind or a jury’s collective mind leaves them without a reasonable doubt that you were driving while impaired. So, to put it another way, the Commonwealth has to have enough evidence based on the totality of the circumstances to proof guilt.
So what evidence is used in a DUI? To put it succinctly, it means the Commonwealth will use everything that you say, everything that is observed and the test results from the breathalyzer or blood test, if one was taken. This can be damning evidence and lead to a conviction. This is why you need an experienced DWI attorney to review for issues with the evidence, police procedure and the science to try to exclude, mitigate or otherwise limit the evidence’s weight.