The Law Offices of Joseph T Brown PLC

by

Refusal in Virginia

 

If a person is arrested for DUI in VIrginia then the law compels that person to provide a breath sample to determine their Blood Alcohol level.  This requirement is known as the Implied Consent Statute, or section 18.2-268.2 of the Code of Virginia (Implied Consent to post arrest testing to determine drug or alcohol content of blood).

If a person unreasonably refuses to provide a breath sample after being arrested for a DUI then they can be found to be in violation of section 18.2-268.3 of the Code of Virginia, also known as theRefusal Statute.

The procedure in the code for the Refusal statute requires the person to be informed of the Implied Consent Statute after they have refused.  If they still refuse after receiving the information about the Implied Consent Statute then that person can be charged with Refusal.  The information that must be given is as follows:

“(i) a person who operates a motor vehicle upon a highway in the Commonwealth is deemed thereby, as a condition of such operation, to have consented to have samples of his blood and breath taken for chemical tests to determine the alcohol or drug content of his blood, (ii) a finding of unreasonable refusal to consent may be admitted as evidence at a criminal trial, (iii) the unreasonable refusal to do so constitutes grounds for the revocation of the privilege of operating a motor vehicle upon the highways of the Commonwealth, (iv) the criminal penalty for unreasonable refusal within 10 years of a prior conviction for driving while intoxicated or unreasonable refusal is aClass 2 misdemeanor, and (v) the criminal penalty for unreasonable refusal within 10 years of any two prior convictions for driving while intoxicated or unreasonable refusal is a Class 1 misdemeanor.”

Defenses of of an alleged violation of this statute usually center on whether the refusal was reasonable or not.  Many of the past cases have focused on whether the refusal was due to a physical limitation or inability to provide a sample.

The consequence for conviction of violation of this statute is that the person’s driver license is suspended for one year, with NO restricted license available during the suspension.  This suspension is in addition to any suspension imposed because of conviction for DUI.  The result is that if a person refuses to give a breath sample when arrested for DUI may be found guilty of refusal and lose their license for one year with no restricted license available to them.  Otherwise the consequences are a civil violation (not criminal) for a first conviction, and a second or first class misdemeanor for subsequent convictions.

by

Restricted License in Virginia

 

Anyone who has their license suspended by the Court or by DMV may be interested in obtaining a restricted license if they qualify. The Judge may allow the restricted license but in some cases, such as convictions for Refusal and the first year of a three year suspension for a second DUI, the code may not allow a restricted license at all. In the case of a DUI conviction the restricted license can only be obtained after enrollment in the ASAP program.

A restricted license can be obtained to allow a person to drive for the following reasons:

To travel to and from a place of employment;
To attend ASAP or alcohol rehabilitation program;
To travel during employment hours if operation of a motor vehicle is part of the employment;
To travel to and from school if the person is a student;
To travel for health care services, including for services for an elderly parent or other person in the household;
To transport a minor child under their care for school, day care and medical purposes;
To travel to court and to probation;
To travel for religious worship;
To travel for case monitoring for DCSE (Child Support Enforcement).
If a restricted license was not obtained at the time the license was taken by the Court, then that same Court can be petitioned to grant a restricted license.

Ignition Interlock
Another aspect of a restricted license is the ignition interlock system. Ignition interlock can be ordered by the Court as condition of a restricted license, and ignition interlock is required for anyone driving on a restricted license if they have multiple convictions for DUI or were arrested with a high blood alcohol level. There is a monthly fee to have the ignition interlock installed in a vehicle, and it requires a breath sample before it will allow the vehicle to be started. The ignition interlock devices also keep records of every attempt to start the vehicle and the records these devices produce have been used as evidence that the driver tried to start the vehicle after consuming alcohol.

by

DUI Legal Defense in Virginia

fullsizeoutput_17

Defenses to DUI (DWI, Driving While Intoxicated, Driving Under the Influence, Drunk Driving) at trial typically challenge the reason for the traffic stop in the first place, whether the arresting officer had sufficient evidence to arrest the person and whether the evidence presented at trial establishes proof beyond a reasonable doubt that the person is guilty. The first defense to DUI is usually whether or not the police had authority to pull the car over. Police may stop a vehicle any time they see a law being broken in front of them, or if they have a reasonable suspicion that the driver or an occupant of the car is breaking the law or has recently broken the law. This means that the police can pull a person over and investigate a person whose car has a burned out tail light or would otherwise not pass inspection. Another example is where police pull over someone and detain them briefly in order to determine if they are a person of interest in a crime. With everyone having a cell phone, many DUI arrests are made after someone calls to inform police of a drunk driver. In most cases the arresting officer has seen the person’s driving behavior himself and that is the basis for the stop. The reason for pulling a person over does not need to have anything to do with the offense of DUI, and doesn’t even have to be charged as a separate offense or proven beyond a reasonable doubt at trial. The police officer just has to be able to articulate a reasonable suspicion that some law was being broken.

The second defense to DUI is whether the police had authority to arrest the person for drunk driving. This is important because once a person is arrested for DUI they are required to give a sample of breath or blood to determine their blood alcohol level under section 18.2-268.2 of the Code of Virginia (Implied Consent to post-arrest testing to determine drug or alcohol content of blood).
Police usually establish probable cause for arrest for DUI by the following:
Observations of the officer – smell of alcoholic beverage, red eyes, slurred speech, stumbling, confusion, driving behavior, etc.;
Performance of the Field Sobriety Tests (FST) – These road side tests can include reciting the ABC’s, nine step walk and turn, touching the nose, finger dexterity test, etc. You do not have to take these tests;
Preliminary Breath Test – This is the hand held breath tester that most Police carry on the road. It is about the size of a deck of playing cards and has a short straw to blow into. Unlike the Breathalyzer under the implied consent law, you do not have to take this breath test and your refusal to take the test can not be held against you. If you do take this test, the fact that it showed some alcohol present in the breath test can be used by the Commonwealth to prove justification for the stop, but the exact results are not admissible;
Statements of the Defendant – In many cases the person who is pulled over will make statements that they are drunk or that they were drinking. You do not have to make any statements about whether you were drinking or are intoxicated. Your refusal to answer those questions can not be used against you.

The second defense to DUI attacks the sufficiency of the evidence that the Police have collected in order to justify an arrest (and Breathalyzer blood alcohol analysis). The less information the Police have to justify the arrest the greater your chance of successfully defending a charge of drunk driving. For example if a person doesn’t make any statements to the officer, and refuses to do the preliminary breath test and the field sobriety tests, then the Commonwealth has to prove by only the observations of the officer that there was probable cause for the arrest. In some cases this is enough, but if the officer does not establish probable cause by his testimony, your case could be dismissed.

The third defense to DUI challenges that the evidence taken as a whole, does not establish guilt beyond a reasonable doubt. This defense is made less important than the others, especially the second defense, because of the presumption statute, also known as section 18.2-269 of the Code of Virginia.

(Presumptions from alcohol or drug content of blood). This statute says that a person whose Blood Alcohol was above 0.08 is presumed to be under the influence. Assuming the Blood Alcohol was actually above 0.08, exclusion of the Blood Alcohol evidence (the goal of the second defense to DUI) is preferable to attempting to overcome the presumption that the state creates. That statute, along with the Implied Consent Statute 18.2-268.2 provides that if the Government can prove that there was probable cause to arrest a person for drunk driving, then that person is compelled to give a breath test for analysis and if the results show the Blood Alcohol to be 0.08 or above, that person is presumed to be guilty of DUI.

Anyone can see that the laws are designed to give every advantage to the Commonwealth and given the harsh penalties for DUI, anyone charged with DUI or DWI in Virginia should obtain the services of an attorney. At the Law Offices of Joseph T. Brown PLC we will analyze your case for all possible defenses and fight for you in the courtroom. If you are charged with DUI in a Fredericksburg, VA area court such as the courts of Stafford, Spotsylvania, King George, Fredericksburg or Caroline, call the Law Offices of Joseph T. Brown PLC at 540-786-7700 for a free consultation to discuss your case.

by

DUI Penalties in Virginia

 

DUI Penalties in Virginia – First Offense:
People convicted of a first offense can usually expect a suspended jail sentence. Typically a 60 to 90 day jail sentence is suspended on several conditions including completion of VASAP (Virginia Alcohol Safety Action Program), payment of a fine (minimum $250.00, maximum $2,500.00) and being of good behavior for a period of up to three years. Driving While Intoxicated is a class one misdemeanor and carries a maximum sentence of up to one year in jail and $2,500.00 fine.

License Suspension
Additionally, persons convicted of driving while intoxicated will have their Virginia driver’s license revoked for a mandatory period of one year. Usually a restricted license is available for Virginia licensed drivers. Drivers licensed out of state would have their privilege to drive in Virginia revoked, with no provisions for a restricted license. After the expiration of one year, the license can be reinstated if VASAP has also been completed.

Mandatory Sentences for BAC Levels
Persons convicted of a first offense of driving while intoxicated with a blood alcohol content between 0.15 and 0.20 must be sentenced by the Court to a mandatory jail sentence of five days. If the blood alcohol content is over 0.20, the mandatory minimum sentence is 10 days. In the case of mandatory sentences there is no credit for good behavior and the full sentence must be served. In any case where the blood alcohol level is over 0.15, the Court must order ignition interlock as a condition of a restricted license or reinstatement of a suspended license.

DUI Penalties in Virginia – Second Offense:
Prior offense date 5-10 years ago
A second conviction of driving while intoxicated where the first conviction was more than five but less than 10 years prior carries a mandatory minimum sentence of 10 days in jail. When mandatory minimum sentences are served there is no reduction in time for good behavior. Additionally a fine of $500.00 to $2,500.00 must be imposed as well as a referral to VASAP. Driving While Intoxicated, second offense, is a class one misdemeanor and carries a maximum sentence of up to one year in jail and $2,500.00 fine.

Prior offense date less than 5 years ago
A second conviction of driving while intoxicated where the first conviction occurred less than five years prior carries a mandatory minimum sentence of 20 days in jail. When mandatory minimum sentences are served there is no reduction in time for good behavior. Additionally a fine of $500.00 to $2,500.00 must be imposed as well as a referral to VASAP. Driving While Intoxicated, second offense, is a class one misdemeanor and carries a maximum sentence of up to one year in jail and $2,500.00 fine.

License Suspension
Upon conviction of a second offense driving while intoxicated where the prior offense occurred within the last 10 years, the Court must suspend the Virginia driver’s license for a period of three years. No restricted license is available for the first year of that period. Any restricted license issued must require ignition interlock. Completion of VASAP is required for reinstatement of license.

Mandatory Sentences for BAC Levels
Persons convicted of a second offense driving while intoxicated with blood alcohol content at least 0.15 to 0.20 must serve mandatory minimum sentence of 10 days in jail. If the blood alcohol content is greater than 0.20 the mandatory minimum sentence is 20 days in jail. These mandatory minimum sentences are ordered in addition to any other mandatory minimum sentence. These sentences can not run concurrently and there is no reduction in time for good behavior.

DUI Penalties in Virginia – Third Offense:
At least one prior offense date 5-10 years ago
A third conviction of driving while intoxicated where at least one of the prior offenses occurred between 5 and 10 years ago carries a mandatory minimum sentence of 90 days and a fine of at least $1,000.00. A third conviction within ten years for driving while intoxicated is a class 6 felony, and carries a term of imprisonment of not less than one year and not more than five years, or in the discretion of the Court, up to 12 months in jail and up to $2,500.00 fine.

Both prior convictions less than 5 years ago
A third conviction of driving while intoxicated where at least one of the prior offenses occurred between 5 and 10 years ago carries a mandatory minimum sentence of six months and a fine of at least $1,000.00. A third conviction within ten years for driving while intoxicated is a class 6 felony, and carries a term of imprisonment of not less than one year and not more than five years, or in the discretion of the Court, up to 12 months in jail and up to $2,500.00 fine.

Effects of Felony Conviction
Convicted felons in Virginia are divested of their civil rights and are not allowed to vote, serve on a jury, hold public office or serve as a Notary Public. Civil rights may be restored by a Petition for Clemency to the Governor of Virginia at least three to five years after release from probation. Convicted felons are not allowed to possess or transport firearms. Possession a firearm by a convicted felon carries a minimum mandatory sentence of at least two years.

License Suspension
Conviction of third (and subsequent) driving while intoxicated within ten years incurs an indefinite license revocation.

Seizure and Forfeiture of Automobile
For any felony conviction of driving while intoxicated, the vehicle that was operated and owned by the offender is subject to forfeiture. The vehicle is seized and becomes the property of the state to be sold at auction.

DUI Penalties in Virginia – Fourth Offense:
People convicted of a fourth offense of Driving While Intoxicated within a 10 year period must serve a minimum mandatory sentence of 1 year in prison and pay a fine of at least $1,000.00. A fourth conviction within 10 years for driving while intoxicated is a class 6 felony, and carries a term of imprisonment of not less than one year and not more than five years, or in the discretion of the Court, up to 12 months in jail and up to $2,500.00 fine. The provisions for license suspension and automobile seizure for fourth offenses are similar to those for third offenses.

If you are charged with DUI in a Fredericksburg, VA area court such as the courts of Stafford, Spotsylvania, King George, Fredericksburg or Caroline, call the Law Offices of Joseph T. Brown PLC at 540-786-7700 for a free consultation to discuss your case.

by

Your Rights During a Traffic Stop in Virginia

 

Once police activate their lights to signal someone over they are detaining that person and must be able to prove probable cause to do so. A person who has been pulled over does not have to challenge the reason for the stop to preserve the issue for Court. The officer will have to justify his reason for detaining you and that is his burden to prove in Court. It is better to put aside the issue of whether they had any right to pull you over and do not argue with the police about it. Arguing with them is something you want to avoid. Here are a few simple rules:

  • Go with the flow. Don’t allow the fact that you have been pulled over elicit a strong emotional reaction, be it fear, anger or something else. Realize that once you are detained by police they are in control of the situation. Be compliant, give them the documents (License, Registration, Proof of Insurance) they request and follow their instructions;
  • Be Polite;
  • Remember Your Rights;
    • Searches – you do not have to agree to be searched or to allow your car to be searched. If police ask you to let them search you, telling them no is your right and doing so can’t be used against you in the courtroom;
    • Incriminating Statements – No one has to give information that may incriminate them. A person does not have to plead the fifth amendment or make any formal invocation of fifth amendment right to not incriminate oneself. They can just refuse to answer questions;
    • Ask to consult with an attorney – Contact the Law Offices of Joseph T. Brown PLC for assistance, legal counsel and representation.

Call Us 540-786-7700

We Are Local


Our Disclaimer

There are many pages in this website that are devoted to giving information about various topics in the law. This information is not meant to constitute legal advice and should not be considered legal advice for any reason. Anyone faced with a legal problem addressed in the pages of this site should contact the Law Offices of Joseph T. Brown PLC for a consultation.