Even a first time Virginia DUI or Virginia DWI charge can have adverse effects on both your personal and professional lives.
With an alcohol related offense on your criminal record, you may suffer from the following and more:
- Higher insurance premiums
- Negative affect on your employment
- Possible revocation and/or suspension of driver's license
- Have a negative impact on your ability to hold a U.S. Security Clearance
- Exponentially higher penalty if you are recipient of a future DUI or DWI conviction
Virginia DUI law and Virginia DWI law explained
In the state of Virginia, the charge of driving under the influence (DUI) is sought for a motorist when driving with a Blood Alcohol Level (BAL) that is .08 or higher.
In the state of Virginia, the charge of driving while intoxicated (DWI) is sought for a motorist with the following in his or her system, but is not limited to those intoxicants listed:
- Marijuana
- Cocaine
- Methamphetamines
The Code of Virginia is amended yearly by the Virginia legislature and the sentiment of defense attorneys is that the amendments seek to tighten perceived loopholes in the law and to amend punishment parameters (namely, the imposition of mandatory jail time for certain BAC levels).
The public often believes that one must have a BAC of .08 or greater for a drunk driving conviction. This is simply not the case. Virginia law allows the government several distinct methods of proof in establishing their case-in-chief.
If the governement posesses a BAC certificate indicating a BAC level of .08 or greater, there is a rebuttable presumption that the driver was driving under the influence of alcohol at the time of driving. Keep in mind that the government must prove that the driver was intoxicated while driving. To achieve this end, there is an underlying legal assumption that if the BAC certificate was produced, via valid breath or blood testing, within three hours of the arrest, the BAC level on the certificate is the BAC level of the driver during the time of arrest (actual driving). These assumptions are often refuted by attorneys through the use of toxicologists because, in truth, there is often a rising BAC scenario. In short, the rising BAC hypothesis is based on the fact that a person's BAC is lower than that indicated on the certificate because more alcohol was absorbed into the blood stream, over time, between the time of driving and the time of testing.
If the government does not possess a BAC certificate of .08 or greater or if the certificate indicates a BAC less than .08, the government may still establish their case-in-chief for DUI/DWI drunk driving by entering the results of the field sobriety tests (FSTs) and actual driving behavior indicating manifestations of inebriation into evidence.
The National Highway Traffic Safety Administration, NHTSA, promulgated in 1984 a battery of standardized field sobriety tests to establish some sense of rhyme and reason to the police using the tests to establish both probable cause for arresting a citizen and also to control the attempts of police officers to use their own battery of "unofficial" tests to prove impairment. The battery of SFSTs are the (1) Horizontal Gaze Nystagmus, (2) Walk and Turn, and (3) One Leg Stand.
Only these three tests have been "scientifically" studied and have any measure of reliability in helping an officer predict whether a subject is above a certain legal limit of blood alcohol content. The BAC level while these tests were established was .10.
Defense attorneys often attempt to refute the results of these SFSTs based on improper testing procedure and improper interpretation of test results. The NHTSA Student Manual itself states that that if not performed properly, or if conducted without adhering to the training protocols, such actions "compromise" the validity of the tests' results.
The HGN evaluation, when performed correctly on proper subjects, had a 77% "claimed" reliability rating. The WAT exercise, when conducted properly on a qualified subject on a dry, level surface, was found to be 68% reliable. The OLS exercise, when conducted properly, on a qualified subject on a level, dry surface and under proper instructions and where correctly demonstrated and scored, reportedly yields about 65% reliability. Cumulatively, if all are done correctly, up to 83% correlation to a BAC of 0.10 or more may be expected.
A majority of police officers do not review testing protocols regularly. This is often because many DUI defense lawyers themselves don't know the proper testing protocols. In Virginia, there is a wide disparity of knowledge amongs attorneys accepting cases in DUI defense. Attorneys with no specialized training in DUI defense and with limited knowledge of the area often accept cases to the detriment of defendants in borderline cases.
Knowledgeable DUI defense lawyers know that a majority of police officers administering the SFSTs do them incorrectly, or conduct them in a manner not approved by the SFST manual. Often these same police officers interpret the results improperly and prematurely assess proable cause for arrest in their minds.
An experienced DUI defense attorney can cross-examine the arresting officer using his own training and education. It is often a good idea for the public to start an attorney interview with the basic question of whether the prospective attorney has even read the NHTSA manual. Many general practitioners who handle DUI cases as part of their criminal practice have never even seen the NHTSA manual.
According to a noted defense attorney, recent research and scientific review of the testing protocols and scoring methodology have brought the NHTSA "Standardized Field Sobriety Tests ("SFSTs") into serious question. Courts across America are taking a closer look at the original research, to see if proper scientific methods were employed in the initial research. More and more courts are now saying "no" to these questions. In a recent New Mexico case, a high-level court has declared that the person who "developed" the tests (Dr. Marcelline Burns) was not qualified to testify as an expert witness about the scientific principles behind the HGN test. (Lasworth v. State, 42 P.2d 844 (N.M. App. 2001).
Tests given by some officers still include unregulated, unscientific tests including (1) reciting the alphabet, (2) picking up coins off the ground, or (3) touching index fingers to the tip of the nose while the person's eyes are closed. These "made-up" tests are administered to defendants without any scientific or empirical basis for reliability in detecting an impaired driver.
If the defendant does not subject himself to the field testing, or if the SFSTs are not properly adminisered, the government may still establish their case-in-chief for drunk driving through driving behavior alone. In introducing evidence of driving behavior, the prosecutor will generally call the police officer to testify about her observations of the driver prior to stopping the vehicle. Often, police officers will refer to weaving, erratic turning, and excessive speed. These observations are then argued by the prosecutor as evidence of driving under the influence of alcohol.
A conviction for drunk driving in Virginia has severe consequences to one's freedom and has collateral issues including insurance and career. DUI/DWI is a criminal class one misdemeanor. The punishment parameters are generally up to one year in jail and/or up to $2500 in fines, including the suspension of license for one year and mandatory admission into alcohol rehabilitation.