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.

Automatic suspension of your license for 1 year

Court fine of up to $2,500

have to install an interlock injection system, which can range from 6 months to 1 year (often judges in Virginia Beach require 1 year)

Alcohol Treatment Program for several weeks which is court required and not free

A DUI conviction will result in permanent criminal record

.15 but not more than .20 BAC mandatory jail time upon conviction of 5 days.

more than .20 BAC:  mandatory jail time upon conviction of 10 days.

The offense carries 6 demerit points

Most likely upon conviction you will be dropped by your auto insurance carrier and have to obtain different, more expensive auto coverage.

You may of been through a DWI arrest, trial and conviction before.  But history doesn’t have to repeat itself.  You owe it to yourself to find the best Hampton Roads attorney to represent you.

If your conviction occurred outside of Virginia (including being charged in Federal court) and sometimes if charged by a local VA ordinance, than you should immediately contact our law firm as the previous conviction may not meet the requirement that it is not substantial similar to Virginia state law.

Penalties w/ 5 years:

DUI second offense is a class one misdemeanor

Up to 1 year in jail, with a minimum jail of 30 days with a minimum of 20 of those days being mandatory.

Court Fine of up to $2,500.  With a minimum fine of $500.

License revocation of 3 years with a restricted license possible after 1 year.

Install an interlock injection system, which can range from 6 months to 1 year (often judges in Virginia Beach require 1 year)

Alcohol Treatment Program which is court required and not free

A DUI conviction will result in permanent criminal record

A conviction with a .15 but not more than .20 BAC carries 10 mandatory days in jail

A conviction with more than .20 BAC carries 20 days mandatory days in jail

6 demerit points

$50 Fee to the Virginia Trauma Fund

Most likely upon conviction you will be dropped by your auto insurance carrier and have to obtain different, more expensive auto coverage.

Penalties w/ 10 years:

DUI second offense is a class one misdemeanor.

It is punishable by up to 1 year in jail, with a minimum jail of 30 days with a minimum of 10 of those days being mandatory.

Court Fine of up to $2,500.  With a minimum fine of $500.

License revocation of 3 years with a restricted license possible after 4 months.

If given a restricted license, you will have to install an interlock injection system, which can range from 6 months to 1 year (often judges in Virginia Beach require 1 year)

You will have to take a mandatory Alcohol Treatment Program which is court required and not free

A DUI conviction will result in permanent criminal record

.15 but not more than .20 BAC carries 10 mandatory days in jail

more than .20 BAC carries 20 days mandatory days in jail

6 demerit points

$50 to the Virginia Trauma Fund

Most likely upon conviction you will be dropped by your auto insurance carrier and have to obtain different, more expensive auto coverage.

Penalty for Third Offense DUI Conviction:

Is a Class 6 Felony

Seizure and Forfeiture of the Defendant’s Vehicle used during the alleged offense

Up to 5 years in prison

If within 5 years, mandatory minimum of 6 months

If within 10 years, mandatory minimum of 90 days

License is Revoked indefinitely (can petition the court to get back license after 5 years)

Minimum fine of $1,000, max of $2,500

$50 Fee to Virginia Trauma Fund

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.