VIRGINIA DUI FACTSHEET BOSE LAW FIRM, PLLC Former Police & Investigators Springfield Offices: 6354 Rolling Mill Place, Suite 102 Springfield, Virginia 22152 Telephone: 703.926.3900 Facsimile: 800.927.6038 Toll free: 877.372.2827 1
A conviction for Virginia DUI/DWI (Driving under the influence) is a serious offense in Virginia with serious penalties including possible jail time. Virginia DUI/DWI is a class one misdemeanor which carries up to twelve months in jail and up to a $2,500 fine. Depending upon the facts of the case, mandatory jail time may be applicable, even for a first offense. In fact, the Virginia Legislature recently changed the DUI statutes making the laws tougher and jail a greater possibility. DID YOU KNOW: Virginia does not make a distinction between DUI and DWI unlike many other states, including Maryland. In fact, under federal law as practiced in the US District Court in Alexandria, a person can be charged with both DUI and DWI where DUI reflects a blood alcohol content (BAC) range of.02 to.07 and DWI represents a BAC of.08 and above. Every DUI case will involve three elements: A vehicle, a driver and the driving or operation of the vehicle. Before an individual can be arrested for DUI, the officer must have sufficient facts to find the driver to be intoxicated to a degree that driving behavior is affected. Virginia Code 4.1-100 defines intoxicated as a condition in which a person has drunk enough alcoholic beverages to observably affect his manner, disposition, speech, muscular movement, general appearance or behavior. These three elements are identified in the statute below. 18.2-266. Driving motor vehicle, engine, etc., while intoxicated, etc It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article, (ii) while such person is under the influence of alcohol, (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, or (iv) while such person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely. A charge alleging a violation of this section shall support a conviction under clauses (i), (ii), (iii) or (iv). For the purposes of this section, the term "motor vehicle" includes mopeds, while operated on the public highways of this Commonwealth. BEWARE THE DUI TRAP: To be convicted of DUI, a person must have been operating a motor vehicle at the time of intoxication. Operating a motor vehicle means more than the common sense understanding one might associate with that word. If a person is in a parked vehicle, in the driver s seat with the key in the ignition and engaging the car s mechanical or electrical equipment without starting the engine, a court could find the vehicle in operation. For example, a person decides to sober up in a parked car and decides to initiate the ignition sufficient enough to listen to the radio. Under Virginia law that person could be convicted of DUI. 2
In order to establish a reason to place an individual under arrest for DUI, the officer will use a combination of tests as well as his observations of the person s appearance and behavior. This is the process of establishing probable cause. The common field sobriety tests used by officers to establish probable cause include: Horizontal gaze nystagmus test Walk-and-turn test One-leg-stand test Finger touch test Recitation of abcs and/or numbers. Finally, the officer will usually carry a portable device used to measure blood alcohol content by having the individual blow into the device at the scene. The results of this device along with observations of the tests and appearance of the individual will be used to make probable cause for the arrest. KNOW YOUR RIGHTS: Everything a person says or does in the presence of the officer creates a record of evidence that will be used in court. You have the right against incriminating yourself. To avoid creating this evidence, DO NOT do the following: Make statements to the officer Perform the field sobriety tests Blow into the portable device provided to you by the officer at the scene Make sure you DO the following: Provide the officer with your name, license and registration upon request Step out of your vehicle if asked by the officer Be polite and courteous in refusing the officer s other requests In the likely event the officer places you under arrest, DO blow into the machine at the station known as the Intoxilyzer Model 5000 Establishing probable cause alone is not sufficient to convict a person of DUI. Since driving under the influence is a criminal offense, a prosecutor must prove their case by the legal standard of beyond reasonable doubt which is the most difficult standard to reach under the law. However, to aid the prosecution in reaching this standard, the Virginia legislature has created presumptions or granted facts to prove intoxication at 3
the time of driving. As the statute below explains, a blood alcohol content of.08 or more creates a presumption that at the time of driving, the individual was under the influence. 18.2-269. Presumptions from alcohol content of blood A. In any prosecution for a violation of 18.2-36.1 or 18.2-266 (ii), or any similar ordinance, the amount of alcohol in the blood of the accused at the time of the alleged offense as indicated by a chemical analysis of a sample of the accused's blood or breath to determine the alcohol content of his blood in accordance with the provisions of 18.2-268.1 through 18.2-268.12 shall give rise to the following rebuttable presumptions: (1) If there was at that time 0.05 percent or less by weight by volume of alcohol in the accused's blood or 0.05 grams or less per 210 liters of the accused's breath, it shall be presumed that the accused was not under the influence of alcohol intoxicants at the time of the alleged offense; (2) If there was at that time in excess of 0.05 percent but less than 0.08 percent by weight by volume of alcohol in the accused's blood or 0.05 grams but less than 0.08 grams per 210 liters of the accused's breath, such facts shall not give rise to any presumption that the accused was or was not under the influence of alcohol intoxicants at the time of the alleged offense, but such facts may be considered with other competent evidence in determining the guilt or innocence of the accused; or (3) If there was at that time 0.08 percent or more by weight by volume of alcohol in the accused's blood or 0.08 grams or more per 210 liters of the accused's breath, it shall be presumed that the accused was under the influence of alcohol intoxicants at the time of the alleged offense. B. The provisions of this section shall not apply to and shall not affect any prosecution for a violation of 46.2-341.24. WHAT IF I M UNDER 21: The rules change a bit for those under age 21. Virginia provides that if a person under age 21 is caught driving with a BAC of.02 -.07, he can be charged with an offense often referred to as baby DUI. Despite the name, its penalties still include a loss of driving privileges for six months and a fine of up to $500. For those under age 21 with a BAC of.08 or greater, you will be charged under the same statutory provision as everyone else. Even with the help of presumptions, the prosecutor must still present evidence of intoxication. This is where the world of science intersects with the world of law. Usually, after an individual is placed under arrest at the scene, he will be taken to a station where he will be asked to blow into a machine called the Intoxilyzer Model 5000. This device is able to extrapolate blood alcohol content from a breath sample blown into the device by the person under arrest. Once completing the appropriate number of breath samples, a certificate will be generated indicating the individuals BAC. It is this Certificate of Analysis which will be used by the prosecutor as evidence to establish the presumption of intoxication. The prosecutor is not limited by this certificate alone in establishing intoxication. The prosecutor will often also ask the officer to testify to the driver s appearance, behavior and ability to complete the field sobriety tests at the scene. The statute below explains this process. 4
18.2-268.10. Evidence of violation of 18.2-266, 18.2-266.1 or 18.2-272 A. In any trial for a violation of 18.2-266, 18.2-266.1 or 18.2-272 or a similar ordinance, the admission of the blood or breath test results shall not limit the introduction of any other relevant evidence bearing upon any question at issue before the court, and the court shall, regardless of the result of any blood or breath tests, consider other relevant admissible evidence of the condition of the accused. If the test results indicate the presence of any drug other than alcohol, the test results shall be admissible only if other competent evidence has been presented to relate the presence of the drug or drugs to the impairment of the accused's ability to drive or operate any motor vehicle, engine or train safely. B. The failure of an accused to permit a blood or breath sample to be taken to determine the alcohol or drug content of his blood is not evidence and shall not be subject to comment by the Commonwealth at the trial of the case, except in rebuttal or pursuant to subsection C; nor shall the fact that a blood or breath test had been offered the accused be evidence or the subject of comment by the Commonwealth, except in rebuttal or pursuant to subsection C. C. Evidence of a finding against the defendant under 18.2-268.3 for his unreasonable refusal to permit a blood or breath sample to be taken to determine the alcohol or drug content of his blood shall be admissible into evidence, upon the motion of the Commonwealth or the defendant, for the sole purpose of explaining the absence at trial of a chemical test of such sample. When admitted pursuant to this subsection such evidence shall not be considered evidence of the accused's guilt. D. The court or jury trying the case involving a violation of clause (ii), (iii) or (iv) of 18.2-266 or 18.2-266.1 or 18.2-272 shall determine the innocence or guilt of the defendant from all the evidence concerning his condition at the time of the alleged offense. If at the end of the trial, the judge finds that the evidence presented by the prosecutor is sufficient to BUT WHAT IF: I don t blow into the Intoxilyzer Model 5000 at the station what will happen? The simple answer is you will be charged with refusal in addition to DUI. While a first conviction for refusal is not a criminal offense, Virginia recently made it a class 2 misdemeanor for a second conviction of refusal within ten years and a class 1 misdemeanor for a third and subsequent conviction. The penalties include: First conviction 12 month loss of license without opportunity for a restricted license Second conviction 3 year loss of license without opportunity for a restricted license and potential 6 month jail sentence and $1,000 fine Third and subsequent conviction 3 year loss of license as above and potential 12 month jail sentence and $2,500 fine support a conviction by the beyond reasonable doubt standard, the Virginia Code requires the judge to impose certain conditions and restrictions. Depending upon the individuals BAC as indicated on the Certificate of Analysis, the Virginia Code may also require the judge to impose an active jail sentence. These penalties are enhanced with each subsequent conviction for DUI. Also, it is important to note that while the law is the same throughout Virginia, each jurisdiction in Virginia from Virginia Beach to Arlington, may follow a set policy with respect to the sentence given on a DUI. It is helpful to know these parameters. 5
18.2-270. Penalty for driving while intoxicated; subsequent offense; prior conviction A. Except as otherwise provided herein, any person violating any provision of 18.2-266 shall be guilty of a Class 1 misdemeanor with a mandatory minimum fine of $ 250. If the person's blood alcohol level as indicated by the chemical test administered as provided in this article was at least 0.15, but not more than 0.20, he shall be confined in jail for an additional mandatory minimum period of five days or, if the level was more than 0.20, for an additional mandatory minimum period of 10 days. B. 1. Any person convicted of a second offense committed within less than five years after a first offense under 18.2-266 shall upon conviction of the second offense be punished by a mandatory minimum fine of $ 500 and by confinement in jail for not less than one month nor more than one year. Twenty days of such confinement shall be a mandatory minimum sentence. 2. Any person convicted of a second offense committed within a period of five to 10 years of a first offense under 18.2-266 shall upon conviction of the second offense be punished by a mandatory minimum fine of $ 500 and by confinement in jail for not less than one month. Ten days of such confinement shall be a mandatory minimum sentence. 3. Upon conviction of a second offense within 10 years of a first offense, if the person's blood alcohol level as indicated by the chemical test administered as provided in this article was at least 0.15, but not more than 0.20, he shall be confined in jail for an additional mandatory minimum period of 10 days or, if the level was more than 0.20, for an additional mandatory minimum period of 20 days. In addition, such person shall be fined a mandatory minimum fine of $ 500. C. 1. Any person convicted of three offenses of 18.2-266 committed within a 10-year period shall upon conviction of the third offense be guilty of a Class 6 felony. The sentence of any person convicted of three offenses of 18.2-266 committed within a 10-year period shall include a mandatory minimum sentence of 90 days, unless the three offenses were committed within a five-year period, in which case the sentence shall include a mandatory minimum sentence of confinement for six months. In addition, such person shall be fined a mandatory minimum fine of $ 1,000. 2. The punishment of any person convicted of a fourth or subsequent offense of 18.2-266 committed within a 10-year period shall, upon conviction, include a mandatory minimum term of imprisonment of one year. In addition, such person shall be fined a mandatory minimum fine of $ 1,000. Unless otherwise modified by the court, the defendant shall remain on probation and under the terms of any suspended sentence for the same period as his operator's license was suspended, not to exceed three years. 3. The vehicle solely owned and operated by the accused during the commission of a felony violation of 18.2-266 shall be subject to seizure and forfeiture. After an arrest for a felony violation of 18.2-266, the Commonwealth may file an information in accordance with 19.2-386.1. If the information is filed, the Commonwealth shall notify the Commissioner of the Department of Motor Vehicles that the property is subject to seizure. The Commissioner shall act upon such notification pursuant to the provisions for certification and notice applicable to a seizure under 19.2-375, except that the Commissioner shall serve the written notice of the seizure upon the registered owner and lienor in accordance with the requirements of 8.01-296. Any seizure shall be stayed until conviction and the exhaustion of all appeals at which time, if the information has been filed, the Commonwealth shall immediately commence seizure of the property in accordance with 19.2-386.2. An immediate family member of the owner of any motor vehicle for which an information has been filed under this section who was not the driver at the time of the violation may petition the court in which such information was filed for the release of the motor vehicle. If the immediate family member proves by a preponderance of the evidence that his immediate family has only one motor vehicle and will suffer a substantial hardship if that motor vehicle is seized and forfeited, the court, in its discretion, may release the vehicle. In the event the vehicle was sold to a bona fide purchaser subsequent to the arrest but prior to seizure in order to avoid seizure and forfeiture, the Commonwealth shall have a right of action against the seller for the proceeds of the sale. 6
D. In addition to the penalty otherwise authorized by this section or 16.1-278.9, any person convicted of a violation of 18.2-266 committed while transporting a person 17 years of age or younger shall be (i) fined an additional minimum of $ 500 and not more than $ 1,000 and (ii) sentenced to a mandatory minimum period of confinement of five days. E. For the purpose of this section, an adult conviction of any person, or finding of guilty in the case of a juvenile, under the following shall be considered a conviction of 18.2-266: (i) the provisions of 18.2-36.1 or the substantially similar laws of any other state or of the United States, (ii) the provisions of 18.2-51.4, 18.2-266, former 18.1-54 (formerly 18-75), the ordinance of any county, city or town in this Commonwealth or the laws of any other state or of the United States substantially similar to the provisions of 18.2-51.4, or 18.2-266, or (iii) the provisions of subsection A of 46.2-341.24 or the substantially similar laws of any other state or of the United States. The table below illustrates the potential penalties a judge can impose on a given DUI case. 7
OFFENSE JAIL FINE LICENSE SUSPENSION ASAP / RESTRICT 1 ST OFFENSE CLASS 1 MISD. 12 MONTHS MAXIMUM $250 12 MONTH ASAP TO GET RESTRICTED LICENSE BAC AT.15 -.20 BAC AT.21 + Second OFFENSE W/IN 5 YEARS W/IN 10 YEARS 5 DAYS 10 DAYS CLASS 1 MISD. 20 DAYS CLASS 1 MISD. 10 DAYS SAME SAME (SIX MONTH INTERLOCK) SAME SAME SAME SAME $500 3YRS (SUSPENSION PERIOD W/ INTERLOCK) NO RESTRICTED LICENSE FOR 1 ST YEAR SAME SAME NO RESTRICTED LICENSE FOR 4 MONTHS.15 -.20 ADD 10 DAYS SAME SAME SAME.21 + ADD 20 DAYS SAME SAME SAME 3 RD OFFENSE W/IN 10 YEARS W/IN 5 YEARS 4 TH OFFENSE (W/IN 10 YEARS) CLASS 6 FELONY 90 DAYS CLASS 6 FELONY SIX MONTHS 1 YEAR W/ MAX 3 YEARS PROBATION $1,000 LICENSE ELIGIBLE AFTER 5 YRS SAME SAME SAME $1,000 SAME NO RESTRICTED LICENSE SAME 8
WHAT CAN WE DO FOR YOU: A lawyer s job is to advocate your position, counsel with you on a course of action and protect your rights. DUI cases are composed of both legal, constitutional issues and technical, scientific procedures. Our firm is composed of attorneys who have both the scientific background helpful to DUI cases and first-hand knowledge of police procedures. Here are a few things a conscientious and thorough attorney from our firm will be looking for and doing in your case. Analyze the officer s initial stop of your vehicle for reasonable articulable suspicion Carefully review the field sobriety tests offered by the officer and performed by the individual as to potential challenges which should be raised Assess whether the officer has read to you mandatory statutory provisions regarding your rights Determine whether the officer had probable cause to place you under arrest We will obtain and review for you the maintenance records from the Department of Forensic Science regarding the Intoxilyzer Model 5000 breath test machine Make sure the Intoxilyzer Model 5000 is properly calibrated and maintained in accordance with procedures established by the Department of Criminal Services Assess whether the individual who prepared and supervised the test with the Intoxilyzer Model 5000 has completed the approved training program and has a valid license to perform the test Determine whether an expert is appropriate to testify on your behalf to rebut the presumption of intoxication at the time of the offense Protect your driving privileges Use leverage obtained from any weakness in the prosecutor s evidence to negotiate a possible favorable resolution to your case 9