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Recent Case Results

DISCLAIMER: The below listed Actual example Virginia DUI and DWI cases are presented for informational purposes only. Every case result depends on a unique variety of factors that are specific to a particular case.  An outcome in a previous case does not guarantee future results nor a predictor of what may happen in your case.


Case:

Defendant charged with DUI (First) w/ elevated BAC of greater than .20.  Defendant’s actual BAC was close to .30 BAC.   Defendant allegedly almost hit 2 vehicles including an occupied marked police vehicle.   Defendant was looking at minimum mandatory jail time of 10 days because of the .20 BAC elevated BAC.

Outcome:  Defendant avoided the elevated BAC and minimum mandatory jail time, instead was convicted of simple DUI (First) with 1 weekend of jail.  

Case:  

Defendant charged with First offense DWI.  The defendant got into a one vehicle accident and fled the scene.  The blood draw showed a elevated BAC of .22 weight to body and which carries mandatory minimum jail time of 10 days upon conviction. 

Outcome:  The defendant was found guilty of simple DWI with no elevated BAC and hence Defendant avoided the minimum mandatory jail time.  

Case:

Defendant charged with DUI (First offense) with a BAC .08.  There were no issues with the breath instrument nor with the officer who was operating it.  It is often said that .08 is the legal limit which is actually not true.  .079 is the legal limit.  Once someone hits .08 that becomes illegal.  

Outcome:    Fortunately for the client, the officer made enough errors in performing the DWI investigation, that the judge agreed to reduce the charge to a Reckless Driving.

Case:

Defendant was found asleep at the wheel on the opposite side of the road.  Defendant was charged with DUI (First offense) with BAC of greater than .20 that would of carried mandatory minimum jail time of 10 days.

Outcome:  DUI was dropped to a simple DUI without elevated BAC and defendant received no active jail time.

Case:

Defendant charged with DUI (2nd offense w/ 5 years w/ elevated BAC).  Defendant was looking at minimum mandatory jail time of 30 days.        

Outcome:  DUI Charge was dismissed on a defense motion to suppress the evidence as there was no reasonable suspicion based on articulate facts for the stop, in violation of the fourth amendment of the US Constitution.

Case:

Defendant charged with DUI (First offense).  Case involved accident and elevated BAC.

Outcome:  Charged reduced to Reckless Driving

Case:

Defendant charged with 2nd DWI, 2nd offense, w/5 yrs.; driving on suspended license and FTA.  Defendant if convicted of the DUI and all other charges could of been looking at up to 3 years in jail, with 20 days mandatory minimum.

Outcome:   FTA and driving on suspended dismissed.  DWI (2nd offense) REDUCED to Reckless Driving.  No active jail time.

Case:  

Defendant fell asleep while waiting at a red light.  Charged with DWI First offense w/ BAC of .15, which carries mandatory 5 days in jail if convicted of the charge.   Defendant was cooperative and had no prior criminal convictions.  Active duty in military.  

Outcome:  Defense was able to work out a plea deal with the Commonwealth where en lieu of mandatory active jail time, defendant was to perform community service instead.

Case:

Defendant  Charged with DUI (First), Reckless Driving based on speed, 95 miles in a 55 posted speed limit, Refusal.

Outcome:  Defendant found guilty of Reckless Driving (General).  The Reckless Driving based on speed and Refusal dropped.  No active jail time.

Case:

Defendant charged with DWI (First) and Refusal.

Outcome:  DWI charge DISMISSED.

Case:

Defendant charged with DWI (First), BAC .09. Speeding, did well on FSTs.

Outcome:  Charge dropped to Reckless Driving

Case: 

Defendant charged w/ 2nd Driving Drunk w/ 5 years and w/ enhanced BAC of .15.  On his first DUI conviction, which he had other counsel, he was sentenced to 3 months of active jail.

Outcome:   The Commonwealth removed the language about elevated BAC (BAC of .15+) saving my client from serving 10 days of mandatory jail time.   He was given the minimum punishment for a 2nd w/ 5 years.

Case:

Defendant was charged with a DUI, BAC .14, driving down the wrong way on street. Defendant had a prior DUI within a 5 year period.

Outcome:   Defendant walked away with NO active jail time.

Case:

Defendant charged with DUI (First) with PBT  over .25 BAC and Reckless Driving, 102/60.  At that speed alone, judges in Hampton give active jail time (rule of thumb is 1 day of jail for every mile at 90 and above).   But the combination of the above speed and a DUI can be explosive as to penalties.

Outcome:  No active jail time.  Reckless Driving was dropped.

Case:  

Defendant charged with 2nd DWI w/ 5 years (prior DUI conviction was in 2019 and occurred out of state) AND Reckless Driving 93/55.    A 2nd DUI conviction carries with it minimum of 20 days mandatory jail time.   2nd DWI w/ 5 yrs carries automatic license of suspension of 3 yrs.  

Outcome:   The Commonwealth was not able to prove beyond a reasonable doubt that Defendant’s out-of-state conviction met the requisites to be deemed a valid conviction in Virginia, thus depriving the Commonwealth from using the prior conviction as a predicate to enhance the Virginia DUI charge to a 2nd offense.

    The Defendant was convicted of the lesser charge of first offense DUI and avoided any mandatory jail time.  

Case:

Single vehicle accident, BAC of .19, did poorly on FSTs.  Looking at minimum of 5 days mandatory jail time.

Outcome:    No active jail time.  Mandatory jail time was struck from the case.

Case:   

Defendant charged with DWI (First offense) w/ .20 BAC.  Defendant caused an accident involving 2 vehicles.  Defendant told the arriving police that he was drunk and to arrest him.  A conviction with an elevated BAC would result in a mandatory minimum jail time of 5 days.  

Outcome:  No active jail time.  Mandatory jail time was struck from the case.


Case:

Defendant charged with DWI (First, BAC .12).  Allegation was that he went across the line while driving.  There were issues with the FSTs that favored the defense.

Outcome:  Charge dropped to a wet reckless driving.

Case: 

Defendant charged with 7 charges.  4 misdemeanor charges and 3 felonies.  4 misdemeanor charges were DWI 2nd w/ 5 yrs, Reckless Driving, Obstruction of Justice and Destruction of Property.  The 3 felonies were all destruction of property charges.  The Commonwealth claimed that the Defendant had crossed over a raised median going into oncoming traffic and causing a 4 vehicle accident; was intoxicated and under the influence of drugs (including sleeping pill), and that the defendant tried to destroy evidence (drugs).   

Outcome:  By agreement with the Commonwealth, the 3 felonies were dropped, the misdemeanor destruction of property was dropped, the obstruction of justice charge was dropped.  In return the Defendant plead guilty to Reckless Driving and DWI 2nd w/ 5 yrs.   The defendant was given the minimum 20 days of active jail time, eligible for weekends.  

Case:

Defendant charged with DUI First Offense, with an elevated BAC of .21, which carries mandatory 10 days in jail.  The defendant got into a one-vehicle accident during the daytime and did poorly on the FSTs.

Outcome:  Court dropped the .21 language, and my client avoided any active jail time.

Case:  

Defendant charged with 2nd DUI w/ 5 years; Driving on Revoked, 18.2-272; and Refusal 2nd w/ 5 yrs.   This case involved an accident.  The defendant was looking at 7 years of license suspension with the possibility having a restricted license during year 5  and minimum mandatory 20 days in jail if convicted of the above.

Outcome:  Per agreement with the Commonwealth, the Refusal and Driving on Revoked were dropped.  The 2nd DWI w/ 5 years was reduced to 2nd DWI w/ 5-10 years.   Under the plea agreement, the Defendant was eligible for a restricted license after just 4 months.  Jail was limited to the mandatory 10 days for  a 2nd DUI w/ 5-10 years.

Case:  

Defendant charged with DWI (First) w/ elevated BAC of .15+ and was facing 5 days of minimum mandatory jail time.  Her alleged BAC was .20 BAC.  Defendant was found in a parking lot vomiting.  

Outcome:   Because there was a plausible defense argument as to whether the Commonwealth could proof that the Defendant was arrested within 3 hours from driving on a public road and which would then make the breath certificate inadmissible.  The Commonwealth agreed to drop the elevated BAC and Defendant was able to avoid mandatory jail time.

Case:

Defendant, with passengers in his car, accused of traveling 80 mph while in a residential neighborhood (posted 35 mph) and smashing into 2 separate occupied houses.   The defendant admitted he was the driver.  The passengers fled the scene and the defendant refused to disclose the identities of the passengers.  Defendant was not injured but was incredibly intoxicated to the point of not making sense when speaking.  

Outcome:   The CA agreed to drop 1 destruction of property charge and the Refusal.  At sentencing the CA presented the evidence and argued for active jail time.  

After argument by the CA and by the defense, the defendant was given no active jail time.

Case:

Defendant charged with DWI First offense and Refusal.  There were strong indicators of impairment (e.g. vomited, did poorly on FSTs).  He had a professional license from the Commonwealth that was at risk in the event of a DWI conviction.

Outcome:  Charge reduced to Reckless Driving.  Refusal charge was dropped.

Case:

Defendant charged with 3rd offense DWI (Felony) within 5 years + Reckless Driving alleging 90+ speeds.  3rd offense DWI conviction within 5 years carries mandatory minimum jail time of 180 days, 5 years revocation of license, possible forfeiture of the vehicle driven.

Outcome:  Felony DWI 3rd offense w/5 years dropped to DWI 2nd offense w/5 years, jail time 20 days.  Reckless Driving charge dismissed.

Case:

Client got into head-on-collision with another car.  Charged with DUI (First) with BAC above a .20 (10 mandatory jail time if convicted with BAC .20).

Outcome:   .20 BAC language in the charging document was struck by the court.  Client convicted of DUI (First) with no active jail time even though client caused head-on-collusion.

Case:

Client charged with DUI with BAC above .20.  Client had two prior DWI/DUIs in the past 10 years. Conviction for the current DUI as a third offense would of been a FELONY and carried months of mandatory jail time.

Outcome:  A plea deal was worked out where the Defendant plead to a 2nd DUI offense within 10 years and avoided a felony conviction and months of mandatory jail time.

Case:

Client charged with DWI (First), Concealed Weapon and Reckless Driving.  Client allegedly was driving on wrong side of the road on to upcoming traffic resulting in 2 vehicle accident.

Outcome:  Convicted of Reckless Driving.  DUI and Concealed Weapon were dropped.

Case:

Client charged with DUI (First) involving a one vehicle accident.

Outcome:  Client convicted of reduced charge of Reckless Driving.

Case:

Client was charged with multiple charges, including DUI (First), stemming from a multi vehicle accident.  The Commonwealth’s allegations, included: that my client drove on the opposite side of the highway; hitting a vehicle near head on; my client took on foot in an attempt to flee the scene; the damage to the other vehicle totaled $31,000; finally that the client’s BAC was .23+.  

Outcome:    By agreement with the Commonwealth, my client pled to simple DUI (no elevated BAC) and misdemeanor H&R, avoiding a felony H&R conviction.  Client did not have to serve any active jail time.


Case: 

Defendant charged with DUI (2 prior DUI convictions in North Carolina in the last 5 yrs), Refusal, Driving on Suspended and Felony Hit and Run.  Part of the allegations  was that the Defendant drove at speeds of 90 mph in residential area in an effort to evade the driver whose vehicle he allegedly hit.  

Outcome:  Per an agreed to disposition, the Refusal and Driving on Suspended was dropped by the Commonwealth.  The Commonwealth reduced the Hit and Run Felony to a misdemeanor with no active jail time.  The defendant pled to the DUI and walked away with no active jail time. 

Case:

Client charged with DUI (2nd) w/5-10 yrs, Refusal (2nd), driving on suspended and Reckless Driving.  DUI involved accident.

Outcome:  DUI (2nd) reduced to DUI (first).  No active jail time.  All other charges dropped.

Case:

Client charged with DUI (First), preliminary breath test of greater than .30 BAC.

Outcome:  Client avoided mandatory jail time.

Case:

Client charged with DUI (First), single vehicle accident, blood draw resulting in BAC of .19

Outcome:  Client avoided mandatory jail time.

Case:

Defendant charged with DWI 2nd offense w/ 5 years in Virginia Beach, which carries mandatory jail time of 20 days.

Outcome:  Was able to effectively argue that there was an issue with the prior DWI offense and the court reduced the charge to DWI 2nd offense in 5-10 years, which carried minimum jail time of 10 days.  My client got the minimum.

Case:

Defendant charged with DWI (First) with elevated BAC .16 which carries 5 days mandatory jail time.  Defendant also got into an accident.

Outcome:  Elevated BAC was struck and the Client avoided any active jail time.

Case:  

Defendant was allegedly driving with the passenger side door open.  Defendant did poorly on the SFSTs and blew a preliminary breath sample of .25+ BAC.   While being transported in the front passenger seat of the police vehicle, the Defendant began to severely berate and yell at the arresting officer who was driving the vehicle.   In addition, for 7 minutes while the officer and Defendant were in near proximity to each other in the vehicle, (during the height of the COVID pandemic) the Defendant was forcefully coughing in the direction of the officer.  The defendant was charged with DWI (First Offense) and Refusal.

Outcome:   The Commonwealth initially wanted considerable active jail time because of the aforementioned details.   However, after raising issues with the PBT specific to the defendant’s case, the Commonwealth relented on seeking active jail time.   By agreement with the Commonwealth, the Defendant pled guilty to the DUI, but was given no active jail time.  The Refusal charge was dropped as well.


Case:  

Defendant charged with DUI (First), Refusal, H&R (misdemeanor), driving when not licensed, Reckless Driving and Obstruction of Justice. 

Outcome:   Defendant NOT convicted: of the DUI (First), Refusal, Driving when not licensed, Reckless Driving.  Defendant was found guilty of the obstruction of justice charge which could not be avoided.  No active jail time on the conviction.  

Case:

Defendant:  Charged with first time DUI offense, BAC .10.   Pulled over for failing to maintain lane.  Did well on the ABC and count down test.  Did not do well on the standardized FSTs, but he informed the officer he had medical issues with his legs.

Outcome:  DUI was reduced to a reckless driving.

Case:

Defendant:  Charge with DWI (First) with BAC of .15.  If convicted of the original charge, client would be facing 5 days mandatory jail time.  Client ran a red light and there were substantial indicators of impairment.

Outcome:  The prosecutor dropped the .15 BAC language and my client avoided any active jail time.

Case:

Defendant:  charged with DUI (First), Refusal.  Had prior DUI conviction outside of the prior 10 years.

Outcome:  Refusal Dropped.  DUI reduced to Reckless Driving.

Case:

Defendant: charged with DUI (First).

Outcome:  DUI dropped to Reckless Driving.

Case:  

Defendant:  Charged with DWI (First).  DUI involved a single vehicle accident and Defendant had a passenger in the car.   Defendant at time of alleged DUI was under 21.  It is illegal for persons under 21 to be driving and have a BAC greater than .02.  The Defendant’s BAC at time of alleged DUI was 6 times higher (.13 BAC)

Outcome:   The DUI was reduced to Driving Impaired under 21.  

Case:

Defendant:  charged with DWI (First) w/ minor child in car, Refusal, Delinquency of minor.   Defendant was found in the middle of the road passed out, vomit in the vehicle.  Did poorly on all FSTs.  Having a minor child in a vehicle during a DWI, carries 5 days mandatory jail time.

Outcome:  Avoided any active jail time.  Minor child language dropped from the DWI charge.  Refusal dropped.  Delinquency of minor charge dropped if defendant is on good behavior for a certain period of time.

Case:

Defendant:  Charged with DUI, first, with BAC of .15+.  Was looking at 5 days mandatory minimum jail time if convicted with alleged BAC.

Outcome:  Case concluded with client avoid mandatory minimum jail time, because defense was successful in arguing that there was a period of time when the defendant, after getting out of his car, was not in sight of the officer and could of consumed alcohol.

• DUI and DWI are the same thing and charged under the same Virginia Code statute, 18.2-266.  I use those terms interchangeably.

Attorney Highlights

Defended Over 1,000 Prior DWI/DUI Cases

 15 years plus of Trial Courtroom Experience

Certificates in Field Sobriety Tests Training (and how to beat them)

2005 Graduate from a Top Ten National Law School (University of Virginia)

Regularly Recognized by Attorney-Run Organizations as Top 10 DWI/DUI Attorney in the Commonwealth

Recognized as Top 10 Best Lawyers in Virginia and Other Awards

Attorney John Naumovski has received numerous awards and recognitions from Multiple Legal Organizations throughout Virginia and Nationally.

For instance, in 2020, Attorney Naumovski was named top 10 DUI lawyer in Virginia for Client Satisfaction by the American Institute of DUI Attorneys.

In addition, Attorney John Naumovski was named one of the top 10 Best Criminal Defense Lawyers under 40 for the state of Virginia  by NACDA (National Academy of Criminal Defense Attorneys).

In recent years, Attorney John Naumovski was recognized as one of the top Lawyers of the Year in the Hampton Roads area by Coastal Virginia Magazine.

In addition, he was nominated in 2014 to be a founding member of the American Association of Premier DUI Attorneys and rated as one of the top 100 DUI/DWI lawyers by National Advocacy for DUI Defense, 2015.

Attorney John Naumovski has repeatedly been recognized by the National Trial Lawyers Association as one of the top 100 Criminal Defense Lawyers in Virginia.

Best Virginia DWI Attorney

In addition, repeatedly both the National Trial Lawyers Association and the American Society for Legal Advocates recognized attorney Naumovski as one of the top 40 under 40 Criminal Defense Lawyers in Virginia.

Attorney Naumovski has a perfect 10.0 AVVO Rating and the law firm itself has a A+ Better Business Bureau Rating.

To learn more about attorney Naumovski visit his individual page.

Understanding Differences between Virginia DUI and DWI

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

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 has previously consulted 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 there 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).

Police Procedure

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.

The Evidence

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?

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 (which can also be decided exclusively based on one's BAC).  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.

DUI Lawyers in Virginia

The law firm specializes in defending clients charged with criminal-traffic matters.   This website was designed specifically for individuals charged with DUI/DWI and provides answers that you may have about your

Pulled over? Alleged to be drinking too much?

charge, including, the law firm’s in-house developed  checklist of DUI Defenses or errors that Virginia law enforcement can make during a DUI.  After that, please contact the law firm (for a free initial consultation) and to start working on defending you against your charge(s).

The most important thing to remember is that a good DUI Defense doesn't start the minute you walk into  a court room, but when you retain an experienced DUI/DWI defense attorney.

Virginia DUI Penalties

Virginia First Offense DUI

DUI/DWI first offense is a Class 1 criminal misdemeanor

Up to 1 year in jail

Read More

Second Offense DUI w/ 5 and w/ 10 years

Being charged with a second offense means that the Commonwealth Attorney has evidence showing that you been charged with a "substantial similar" DUI in the past 5 to 10 years.  The penalties for a 2nd offense DUI conviction are severe as they are enhanced compared to a first offense.

Read More

Third Offense DWI w/ 5 years and w/ 10 yrs

A Third Offense DUI in Virginia with respect to Penalties is based on whether the offense occurred within 5 years or within 10 years of the two prior offenses.

Read More

Is this the first time you been Arrested? 

Being charged with a Virginia DUI (also known as a DWI) is a serious matter.  Most people charged with a DUI are arrested on the spot and for many individuals it is the first time they are having a substantial interaction with law enforcement and the judicial system.  It is a normal reaction for a person charged with a serious criminal-traffic offense, such as a DUI, to feel confused as to how to go forward and fearful of the consequences that can result from a DUI.

What Will happen at a DUI Trial? 

At trial, it is up to the prosecution to prove beyond a reasonable doubt that you are guilty of the charge. In that effort, the prosecutor will attempt to present evidence showing impairment. Evidence includes what was gathered during interaction with the police and the breathalyzer test results (if one was taken) as well as eye-witness testimony if the DUI stems from an accident.

What does Driving Under the Influence mean?

Driving under the influence means that due to consumption of alcohol (or drugs, including prescription drugs) a person’s ability to drive was impaired to the point that they no longer could legally drive. The reason why the police give a breathalyzer test is to determine whether the results (.08 of BAC or higher) would create a presumption of impairment at time of driving. So for example, someone who blows a .08 is presumed to be impaired at time of driving. It should be noted that this is only a presumption and not a conclusion of law and as such may be refuted.  

Defending a DUI Charge

Below is a description of the gathering of evidence by the police that is often used later in a trial:

When the police suspect someone of driving drunk, they first make a note as to whether the driver is committing a traffic violation(s) (speeding, failure to put on a turn signal, etc.) or because of weaving in a lane. Once the police note such driving behavior, they are permitted to pull over the driver. For DUIs originating from an accident, the police are permitted to arrive on the scene and question the persons involved in the accident (called the care taker rule).

As they approach the driver, they are ready to start a battery of tests to gather evidence for trial. The first set of tests is called the pre-exit test and refers to obtaining evidence even before an individual gets out of the vehicle.  This normally starts with determining whether the driver has an odor of alcohol and whether it is a strong or weak odor. Second, they make a visual and audio observation of the driver to note whether the driver has slurred language or glassy, blood shot eyes. Next, the officer asks whether the driver has been drinking and makes note of the answer. The final pre-exit test is to ask for license and registration and is meant to see if the driver is able to understand the instruction and is able to obtain the requested documents without fumbling for them and providing the correct ones.

The next test is called the post-exit test and involves taking notes of how the driver exits the vehicle (leaning on the door for support or difficulty with exiting). Once the driver is outside the vehicle, the officer notes whether the driver is able to keep their balance or they are instead swaying. Next the officer may start the pre-standardized field sobriety tests. These tests include asking an individual to recite the alphabet (backwards or to start from a certain letter and stop at another specific letter), counting of numbers, drawing, touching one’s nose to name a few. The important thing to do know about these tests is that there is no scientific backing proving that poor performance reflects impairment and the law firm argues this point in court and/or has the prosecution or the officer admit to this fact. The next test the officer performs is the standardized field sobriety tests (SFSTs). The important thing to mention about these tests, is that unlike the pre-SFST test above, the SFST do have some scientific backing and so the strategy for these tests is to minimize any weaknesses (such as if someone put their foot down during the one foot stand test, or decided to not to one of them).

The SFST consist of three tests: Walk and Turn, Horizontal Gaze Nystagmus, and the one foot stand.

The next test is for the officer to offer a Preliminary Breath Test (PBT). An individual is not required to take the PBT and any result from the PBT can not be used at trial (however it can be introduced in a pre-trial motion). The main purpose the officer is using the PBT result is to determine if the PBT shows a .08 and thus a presumption of impairment and which will allow him to arrest the individual. The officer is not required to offer a PBT and failure to do so is not a defense for trial purposes but may be a defense to a pre-trial motion.

Once at the station, the officer prepares the individual to take the station’s breathalyzer test (in Virginia, the 2 machines used are the Intoxication 5000 Breathalyzer and the EC/IR II) by reading the implied consent law and by performing a 20 minute observation to make sure that the individual is not chewing, eating, burping or vomiting or other physical behavior that would result in there being an increase in mouth alcohol. The results of this Breathalyzer test are admissible in court and a major priority in defending clients who do take the Breathalyzer test is to determine if the operator is properly licensed, has not made errors or taken shortcuts leading to a defendant giving a breath sample and not made error while operating the intox.

Best DUI Lawyer in VA!!

Matt

Jeff

11/23/2020

2021-01-21

DUI

Helped Me Beat A DUI Charge

5 out of 5 stars

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