DUI and Traffic Offenses
Legal Representation for Individuals Facing Charges Pertaining to DUI & Traffic Offenses in the Roanoke - Bedford, Virginia Region
Driving Under The Influence
When it comes to DUI and traffic offenses, Virginia's courts are particularly tough on drunk drivers. The BAC (blood-alcohol content) allowed in this state has been lowered to 0.08%. The potential of personal and property loss from the action has had an incredible impact on the way the court system views the offense in the last twenty years. Courts now view the offense as being on the level of murder in cases involving death and penalties resulting in life sentences for the defendant. Without legal representation, you stand to lose much more than your license.
See Virginia Code § 18.2-266 for a definition of driving while intoxicated.
As we all know, everyone has either experienced a traffic offense or knows someone who has at some point in life. For most people, and for most offenses, it is an infrequent inconvenience which results in a few points on our driving record, a raise in insurance premiums and some out of pocket expense.
However, even minor infractions can now carry substantial weight with certain employers and even prevent you from obtaining specific types of employment. Consulting the services of an attorney in these types of situations is definitely beneficial.
Certain types of offenses in Virginia, such as DWI/DUI, vehicular homicide and reckless driving, or the accumulation of several infractions in a short period of time, can become a serious matter to you. Penalties can range from suspension of your license to heavy fines, and/or imprisonment. All of these have substantial impact on life in terms of possible personal asset and employment loss issues. You need a qualified attorney to represent you!
When do I need a lawyer for a traffic offense?
If you are charged with a offense that could result in incarceration and/or loss of your licence, you need a lawyer. These offenses include cases involving; DUI (drunk driving), reckless driving, hit and run, driving with no insurance, involuntary manslaughter, habitual offender, or driving with a suspended or revoked license.
Receiving A Traffic Citation
If stopped by the police for committing a minor traffic offense, you are likely to receive a "citation." Such traffic offenses are usually summary offenses. You can either pay the fine within the time provided or contest the citation by attending a scheduled hearing. If you pay the fine you are admitting to the violation, which is equivalent to a guilty plea. If you request a hearing, your case will be heard by the District Court whose address appears on your citation.
Before you decide to pay the fine or appear in court, you should find out what the consequences of the citation will be. All moving violations result in points charged against your driver's license. An accumulation of too many points can result in consequences such as higher car insurance premiums, being required to attend driver improvement school or suspension from driving.
Is it helpful to have a lawyer represent you for all traffic offenses?
Police officers are human and can make mistakes. An attorney may be able to better represent your explanation in cases where you feel an error in judgment was made.
For instance, attorneys can meet with the police officer, state trooper or Commonwealth's Attorney and agree to a lesser charge. By obtaining an attorney, a judge is more open to hearing your case if you are serious about having your case reviewed. If the charge is reduced or dismissed you can save beyond your attorney's fee by keeping your insurance premiums low.
Frequently Asked Questions
The following is a list of symptoms in descending order of probability that the person observed is driving while intoxicated. The list is based upon research conducted by the National Highway Traffic Administration:
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:
- 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.
- 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