DUI and Traffic Offenses

You are not required to answer potentially incriminating questions. A polite "I would like to speak with an attorney before I answer any questions" is a good reply. On the other hand, saying that you had one or two beers is not incriminating: it is not sufficient to cause intoxication -- and it may explain the odor of alcohol on the breath.

The law on this varies from state to state. As a general rule, however, there is no right to an attorney until you have submitted to (or refused) blood, breath or urine testing. In some states, there is a right to consult with counsel upon being arrested or before deciding whether to submit to chemical testing. Of course, this does not mean that you cannot ask for one.

The traditional symptoms of intoxication taught at the police academies are:

• Flushed face
• Red, watery, glassy and/or bloodshot eyes
• Odor of alcohol on breath
• Slurred speech
• Fumbling with wallet trying to get license
• Failure to comprehend the officer's questions
• Staggering when exiting vehicle
• Leaning on car for support
• Combative, argumentative, jovial or other inappropriate attitude
• Soiled, rumpled, disorderly clothing
• Swaying/instability on feet
• Disorientation as to time and place
• Inability to follow directions

Field Sobriety Tests (FSTs) are roadside coordination tests performed by an arresting officer.  Officers have usually made up their minds to arrest when they give the FSTs; the tests are simply additional evidence which the suspect inevitably "fails". These coordination tests include heel-to-toe, finger-to-nose, one-leg stand, horizontal gaze nystagmus, alphabet recitation, fingers-to-thumb, hand pat and so forth. Most officers will use a set battery of three to five such tests.

Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any FSTs. Thus, in most cases a polite refusal may be appropriate. 

This is the "horizontal gaze nystagmus"  test, a relatively recent development in DUI investigation. The officer attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is medical jargon for a distinctive eye oscillation); if this occurs sooner than 45 degrees, it theoretically indicates a blood-alcohol concentration over .05%. The smoothness of the eye's tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye is as far to the side as it can go.

This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer's ability to recognize nystagmus and estimate the angle of onset. Because of this, and the fact that the test is not accepted by the medical community, it is not admissible as evidence in many states; it continues, however, to be widely used by law enforcement.

Most municipalities require their officers to have potential offenders breathe into a breathalyzer device in their patrol cars.  These machines are fairly accurate and can give the arresting officer an additional tool for a valid drunk driving arrest.

See Virginia Code 18. 2-267 for details from the Virginia General Assembly's Legislative Information Center.

The consequences of refusing to submit to a blood, breath or urine test in Virginia are:

1. Your driver's license will be suspended for a period of time, commonly three, six or twelve months. This may be true even if you are found not guilty of the DUI charge.
2. The fact of refusal can be introduced into evidence as "consciousness of guilt". Of course, the defense is free to offer other reasons for the refusal.

Thus, the decision is one of weighing the likelihood of a high blood-alcohol reading against the consequences for refusing.

See Virginia Code § 18.2-268.2 for an in-depth description of the law.

In Virginia, you have a choice — of breath or blood test. If you choose breath, many jurisdictions permit you to have a second test of blood or urine; this is because a breath sample is not saved and so cannot later be re-analyzed by the defense.

Analysis of a blood sample is potentially the most accurate. Breath machines are susceptible to a number of problems rendering them often unreliable. The least accurate by far, however, is urinalysis. Thus, if you are confident that you are sober, a blood sample is the wise choice; urine, being least accurate and most easily impeached, is the best option if you believe your blood-alcohol concentration is above the legal limit.

No. The officer is supposed to give a 5th Amendment warning after he arrests you. Often, however, they do not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest.

Of more consequence in most cases is the failure to advise you of the state's "implied consent" law - that is, your legal obligation to take a chemical test and the results if you refuse. This can effect the suspension of your license.

You can represent yourself -- although it is not a good idea. "Drunk driving" is a very complex field with increasingly harsh consequences. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing and administrative license issues.

A qualified attorney can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, etc.

The penalties for a drunk driving conviction in Virginia are quite severe.  Especially so if not legally represented. If convicted, an attorney is your best bet towards negotiating a penalty that will lessen the effect on your everyday life.  For instance, he may be able to obtain a restricted driving privilege from the court that would allow you to at least drive to and from work.

Some penalties call for the installation of an ignition interlock system that would prevent the operator to start the engine of a car if the device measures any discernable amount of alcohol on their breath.

The existence of any personal injury caused by drunk driving elevates the offense to a felony. A death can trigger manslaughter or even murder charges.

"Mouth alcohol" refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact.

Mouth alcohol can be caused in many ways. Belching, burping, hiccupping or vomiting within 20 minutes before taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine's reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times. A chronic "reflux" condition from gastric distress or a hiatal hernia can cause elevated BAC readings.

It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of DRIVING -- not at the time of being TESTED. Since it takes between 30 minutes and 3 hours for alcohol to be absorbed into the system, an individual's BAC may continue to rise for some time after he is stopped and arrested.

Commonly, it is an hour or more after the stop when the blood, breath or urine test is given to the suspect. Assume that the result is .12%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .08%. In other words, the test result shows a blood-alcohol concentration above the legal limit -- but his actual BAC AT THE TIME OF DRIVING was below