DUI Lawyer in Fairfax County
A charge of Driving Under the Influence (DUI) in Fairfax County is arguably the most severe traffic charge the average person comes across. In fact, DUI's are so common that, in the past ten years, there were an average of 25,857 DUI convictions in Virginia. Unfortunately, due to the astounding amount of DUI charges every year, the consequences and penalties are becoming more severe each year. It is important to have an experienced Fairfax DUI Lawyer to help you navigate your way through the judicial system for your driving under the influence charge. If you find yourself in this situation, please contact us for a free consultation and we will discuss your case.
- DUI in Fairfax County
- Proving a DUI
- DUI Defenses
- Refusal of DUI Tests
- DUI Field Sobriety Tests
- Defenses to DUI Field Sobriety Tests
- DUI Penalties
- Prior DUI Convictions
- What is ASAP?
- What is Ignition Interlock?
- Your Day in Court for a DUI
DUI in Virginia in 2017…
Over the past decade, Mother's Against Drunk Driving has vigorously campaigned for harsher penalties and demanded the courts to maintain stricter compliance with the law. As a result of this movement, the legislature has enacted harsher penalties for a conviction by increasing the possibility of an active jail sentence and adding the requirement of installation of vehicle interlock devices to test a person's breath prior to their vehicle starting.
Additionally, prosecutors in Fairfax County are less likely to agree to favorable plea bargains due to the tremendous pressure for them to get convictions and Judges likewise take DUI charges very seriously. Accordingly, if you are charged with a DUI, consult a Fairfax DUI Lawyer immediately. Many people are under investigation for DWI for the first time and, unfortunately, are not aware of the importance of what they say and how they conduct themselves at the scene. While the officer and prosecutor may have built a case, a DWI Attorney can find issues in their case that can benefit the client.
DUI in Fairfax County
Driving Under the Influence is made illegal by Virginia Code §18.2-266. The Fairfax County Court System takes DUI cases as very serious cases. In fact, the prosecutors in Fairfax have special packets with them for court that include the police reports, police officer dash cam videos, and many have special DUI binders they carry around so they are ready to go to trial if necessary. You should be ready to go to trial on your DUI charge too.
Driving Under the Influence of Alcohol in Virginia
It is illegal in Virginia to operate a motor vehicle while having a blood alcohol level of .08 percent or more. Virginia Code §18.2-269 creates a rebuttable presumption that the amount of alcohol in the blood or breath of the accused by chemical analysis was the same as of the time of driving. As a result, if an individual is driving and arrested for DUI in Fairfax County, and provides a breath or blood sample two hours later, that alcohol level relates back to the time of driving.
If an individual is driving with a blood-alcohol level of between .05 and .07, then there is no presumption they were driving while intoxicated. However, depending on the results of the field sobriety tests and other evidence, the prosecutor and police officer can still proceed with the case and attempt to get a DUI conviction. Of course, a blood-alcohol level of below .08 is ripe for trial. But note, if you have a blood alcohol level below .08 in Fairfax County, there remains a strong chance that your charge will not be simply dropped. Rather, you should be ready to fight your case.
If an individual is driving with a blood-alcohol level of below .05, then there is a rebuttable presumption that the individual was not under the influence of alcohol at the time of driving. Such low blood alcohol levels are typically found in DUI blood cases where the results are not known until after the blood sample is analyzed (which can be many months later after arrest).
How to Prove a DUI in Virginia
Operation of Motor Vehicle
An individual must be shown to be operating a motor vehicle. This issue typically comes up when an individual is passed out at the wheel and the vehicle is not moving and the keys are not in the ignition because, perhaps, the individual is sleeping it off. Showing the element of operation also arises in accident cases when the officer arrives later to see the suspect standing outside of the vehicle and the engine is off. If the Defendant does not admit to driving, the element of operating a motor vehicle is not met and the Defendant is not guilty of the offense of driving under the influence. How do they know somebody else wasn't driving and left the scene right?
Implied Consent Law in Virginia
The law says that anyone that operates a motor vehicle on a Virginia road gives implied consent to have their breath or blood tested to determine drug or alcohol content of blood pursuant to §18.2-268.2. Because driving is a privilege and not a right an individual is required to submit to a breath or blood test or face additional consequences.
Do I have to be on a highway for a DUI?
An individual does not need to be operating on a highway to be guilty of DWI. An individual can be driving in a parking lot, driveway, grass, or even through the woods and still be convicted of a DUI in Virginia. However, operation on a highway remains critically important nevertheless.
To determine if the road the individual was stopped on is a highway one must look at Virginia Code §46.2-100 and its accompanying case law. If not it was not a highway, then the individual did not impliedly consent to have their alcohol level tested and the results are inadmissible at trial. This will substantially help the accused because now there is no presumption of intoxication in Virginia. Judges in Fairfax County are keenly aware of this requirement and your Fairfax DUI Lawyer should challenge this requirement if at all possible.
Field Sobriety Tests in Virginia
Field Sobriety Tests are a series of tests used by police officers to determine the likelihood of impairment. These tests are conducted after a traffic stop has been initiated. Generally, the officer observes driving behavior (such as swerving), it is late at night, the officer smells an odor of alcohol, and the individual says they are returning home from a bar and/or has admitted to a "few drinks." It is at this point that the officer will ask that the person take Field Sobriety Tests.
What are Field Sobriety Tests?
The Standardized Field Sobriety Test is a three-pronged test developed through research sponsored by the National Highway Traffic Safety Administration. The field sobriety tests are used to determine potential indicators of intoxication. The test is used for the police to establish probable cause for arrest and is ripe for issues that a DUI lawyer can attack. It consists of three tests:
Horizontal Gaze Nystagmus (HGN)
HGN is an involuntary jerking of the eye that occurs naturally when the eyes are rotated at certain angles. This nystagmus is exaggerated when alcohol is in the system to a point of impairment. As a result, the jerking of the eye occurs at lesser angles than those in which there is no alcohol in the system. Essentially, the individual will follow a moving object, such as a pen or officer's finger, horizontally with his or her eyes. The officer looks for three indicators of impairment:
a) lack of smooth pursuit, b) clear jerking of the eye at “maximum deviation, and c) if the angle of onset of jerking is within 45 degrees of center. If, between the two eyes, four or more clues appear, the suspect likely has a BAC of 0.08 or greater.
Walk and Turn
Walk and Turn is a 9-step walk and turn test where the individual is required to have a divided attention. It is generally understood that those who are impaired have a more difficult time following simple instructions and dividing their attention. In this test, the individual is required to take nine steps, heel-to-toe, along a straight line. After taking the steps, individual must turn and “pivot” to face the opposite direction. During this 9-step process, the officer looks for eight indicators of impairment: if the suspect cannot keep balance while listening to the instructions, begins before the instructions are finished, stops while walking to regain balance, does not touch heel-to-toe, steps off the line, uses arms to balance, makes an improper turn, or takes an incorrect number of steps.
One-Legged Stand is a balance and attention test where the individual is instructed to stand with one foot approximately six inches off the ground and count aloud until told to put the foot down. The officer times the subject for a period of time, typically for 30 seconds. The officer looks for four indicators of impairment, including swaying while balancing, using arms to balance, hopping to maintain balance, and putting the foot down.
Other DUI Tests
None of the following additional tests used by police are recommended by NHTSA but are routinely employed nonetheless: alphabet test, finger dexterity test, counting test, and nose touch test. A DUI Lawyer will be quick to point out to the court that there is no scientific basis for the administration of these tests so they should be ignored by the court.
Defenses to DUI Field Sobriety Tests
Field Sobriety Tests are very difficult tests to perform under any condition. However, certain conditions can make testing more difficult. For example, as has happened to our clients in the past, what if the tests were given on the side of I-66? After all, you have large trucks whizzing by at 70 mph and their sheer size will create a substantial breeze. Imagine now that you are standing on one leg when this happens trying to concentrate?
The officer may ask you to walk an “imaginary” line for the 9-step walk and turn. Can they really accurately testify that you stepped off line on steps 4 and 7 while wearing heels while walking an imaginary line on wet pavement?
Perhaps it's freezing out and you don't have a jacket. What does shivering do while you are trying to balance on one leg for 30 seconds?
Do your best to recall the tests and the environment you took the tests in when you speak to a DWI Attorney.
DUI penalties in Virginia are extremely harsh. If convicted, an individual faces the possibility of jail time, license suspension, court-ordered ASAP enrollment, ADS classes, and ignition interlock. Driving Under the Influence is a Class 1 misdemeanor that will stay on your driving record for 11 years and your criminal record permanently.
Penalty for First Offense DUI
In Fairfax, Virginia penalties for Driving Under the Influence of Alcohol or Drugs will depend on the blood alcohol level. If the individual is convicted of a DUI or DWI with a blood alcohol level of .05, .06., 07, .08, .09, .10, .11, .12, .13, or .14, the court will generally impose a suspended jail sentence with a mandatory $250 fine for a DUI conviction in Virginia. A suspended jail sentence means there is no active jail time to serve.
If the individual is convicted of a first offense DUI or DWI with a blood alcohol level of .15, .16, .17, .18, .19, or .20, the court is required to imposed a mandatory jail sentence 5 days. The court will also impose additional suspended jail time.
If the individual is convicted of a first offense DUI or DWI with a blood alcohol level of .21 or more, the court is required to impose a mandatory jail sentence of 10 days. The court will also impose additional suspended jail time.
In addition to any active or suspended jail time, the individual will be placed on active probation through the Alcohol Safety Action Program (ASAP) and any violations of probation will result in some or all of the suspended time given by the court to become “active” and the individual will then be required to serve that suspended sentence.
In addition, there is a mandatory 12 month loss of privilege of drive in Virginia upon a conviction for DWI. If the individual has a decent driving record, a restricted license is available to go to work, school, probation, court, daycare for minor children, schools for minor children, court ordered visitation, and church.
As a condition of a restricted license, the individual will be required to have ignition interlock installed on their vehicle for at least six months. If there are no positive alcohol readings, many Judges will allow its removal after six months if the blood alcohol level is not excessively high.
Penalty for Second Offense DUI
Penalties for Driving Under the Influence of Alcohol or Drugs as a second offense will generally require active jail time. If the individual is convicted of a DUI or DWI as a second offense within 10 years, the court will be required to impose a mandatory jail sentence of 10 days. If the blood alcohol level is between .15 and .20, the court will be required to impose a mandatory jail sentence of 20 days. If the blood alcohol level is above .20, the court will be required to impose a mandatory jail sentence of 30 days. There is a mandatory fine of $500 and a mandatory fine of $1000 if the blood alcohol level is above .15 for driving under the influence of alcohol or drugs as a second offense within 10 years.
If the individual is convicted of a DUI or DWI as a second offense within 5 years, the court will be required to impose a mandatory jail sentence of 20 days. If the blood alcohol level is between .15 and .20, the court will be required to impose a mandatory jail sentence of 30 days. If the blood alcohol level is above .20, the court will be required to impose a mandatory jail sentence of 40 days. There is a mandatory fine of $500 and a mandatory fine of $1000 if the blood alcohol level is above .15 for driving under the influence of alcohol or drugs as a second offense within 10 years.
In addition, for a second offense DUI, there will be a mandatory loss of privilege to drive in Virginia for 3 years. A restricted license is available after 4 months from the date of conviction for a second offense DUI within 10 years. A restricted license is available after 1 year from the date of conviction for a second offense DUI within 5 years. Any request for a restricted license will also carry the requirement of ignition interlock.
As with a DUI first offense, the individual will be placed on active probation through the Alcohol Safety Action Program (ASAP) and any violations of probation will result in some or all of the suspended time given by the court to become “active” and the individual will then be required to serve that suspended sentence. For a second offense DUI, the individual can expect ASAP to refer them to alcohol drug services (ADS) for further treatment.
Driving While Intoxicated as a 2nd offense is a Class 1 Misdemeanor.
Penalty for Third Offense DUI
Driving Under the Influence as a Third Offense is a Class 6 Felony in Virginia. As a result, there is enhanced mandatory jail time and a permanent loss of privilege to drive in Virginia. It is very important to have an experienced lawyer represent you if you are charged with a Third Offense DUI.
If the individual is convicted of a Third Offense DUI within 10 years from the last two convictions, there is a mandatory 90 days in jail to serve. In addition, there is a mandatory $1000 fine and a permanent loss of privilege to drive.
If the individual is convicted of a Third Offense DUI within 5 years from the last two convictions, there is a mandatory 6 months in jail to serve. There is a mandatory $1000 fine and a permanent loss of privilege to drive in Virginia.
Please note that with a Third Offense DUI in Virginia, the Judge is more inclined to give more jail time than the mandatory minimum. It is not unheard of in Fairfax County for the Judge to impose one year in jail on a Third Offense. In fact, as a Class 6 Felony, the Judge can give up to 5 years in prison for driving under the influence Third Offense.
Prior DUI Convictions
A DUI Lawyer will evaluate whether the Commonwealth can prove any prior DWI convictions. If it was out-of-state, is the law in that state substantially similar to the Commonwealth's law? See §18.2-270.
The date of the prior offense plays a part in whether the Commonwealth can prove the prior DUI was within the past 5 years or 10 years. For example, a person may have been convicted of a prior DWI within the past 10 years but the date of that offense may be outside of the 10-year mark (i.e. no mandatory minimum jail time)
Was the individual represented by counsel in the prior DWI? If not, can the Commonwealth prove he waived his right to counsel? See Sargent v. Commonwealth, 5 Va. App. 143 (1987). If not, the Commonwealth cannot use the prior conviction to make the current charge an elevated offense.
Driver's License Suspension
One of the harshest realities with a DUI conviction pertains to a loss of driving privileges in Virginia. Forfeiture of driver's license for driving while intoxicated is governed by §18.2-271 (modified):
- 1st Offense DWI Suspension of privilege to drive for one year (restricted permit possible)
- 2nd Offense DWI within 5 years Suspension of privilege to drive for 3 years (restricted permit possible after one year)
- 2nd Offense DWI within 10 years Suspension of privilege to drive for 3 years (restricted permit possible after four months)
- 3rd or Subsequent Offense DWI Indefinite Suspension (no restricted permit possible) (but see §46.2-391 for restoration of driving privilege procedures)
DUI License Suspension Issues
The Virginia DMV is currently wrestling with what to do when someone is charged with a 2nd or subsequent DWI offense and, ultimately, a guilty finding is entered on a 1st offense. While a 1st offense DWI conviction, by statute, orders a suspension of the privilege to drive for one year, the DMV may nonetheless consider it a second offense and administratively suspend the license for 3 years. It is becoming clear that an individual needs to obtain a restricted license after a conviction even if they do not intend to drive during the suspension period. Why? The Virginia DMV appears to consider the license revoked of those who do not apply for a restricted permit and, as a result, requires the individual to retake the driving test when they go for reinstatement of their license.
What is ASAP?
ASAP (alcohol safety action program) is a 20-hour program established in 1972 which focuses on substance abuse and driving, substance abuse and health, and self evaluation of potential for substance abuse. Participants will be tested for alcohol and drug use. If they test positive, they will be reclassified for treatment (typically with ADS-alcohol drug services). ASAP MUST be completed as part of DUI probation. In the event ASAP is not successfully completed, the courts will be notified and a Show Cause Rule will be issued against the individual. They will be required to appear in court and show cause as to why they should not be incarcerated for their failure to comply with ASAP pursuant to §18.2-271.1. In addition, the Virginia DMV will not reissue a Virginia driver's license if ASAP, including treatment if required, is not completed.
More information can be found at:
What is Ignition Interlock?
Ignition Interlock is a device that is ordered to be installed in everyone's vehicle who is convicted of DUI (and who wishes to drive on a restricted license). The device is installed on the individual's vehicle and monitor's their blood alcohol level through breath test. The individual must blow into the device to start the vehicle. Additionally, the individual must re-blow every 20 minutes while driving and, if the offender tests positive while driving, the car's horn will sound and its high beam lights will flash on and off. If alcohol is detected or the device is tampered with, a Show Cause Rule will be issued by the court and the individual will be need to show cause as to why they should not be incarcerated for their positive testing under Virginia Code §18.2-271.1. The device must be installed for a minimum of six months and for no longer than the period of license suspension. Any verified violations will result in the calculation of the six-month installation period being restarted. To get the device installed, you will be given a list of ignition interlock vendors when you report to ASAP. You will be responsible for for choosing a vendor within 48 hours of receiving the list and your ASAP case manager will send a referral form to the vendor for its installation and you will be responsible for scheduling an installation appointment. Upon your arrival for the installation, you will be provided with detailed instructions and training regarding the operation and care of the interlock device. The installation of the device costs $65.00 and you will be required to report to the vendor at least every 30 days so the vendor can download the data from the data-logger and calibrate the device. Calibration of the device costs up to $80.00.
For more information, see §18.2-270.1 (Ignition interlock systems; penalty)
Ignition Interlock Removal
As indicated above, after the expiration of 6 months with the device installed in your vehicle, provided there are no violations, you can petition the court for its removal. The petition can be granted at the discretion of the court. Courts will generally agree to removal after 6 months if there are no violations and the person has successfully completed ASAP. Contact your DUI Attorney about ignition interlock removal procedures.
More information can be found at:
Your Day in Court for a DUI
If you are represented by a DUI Lawyer, your court appearance will be different than those without a lawyer. For example, in Fairfax County, your DUI Lawyer will “pass the case” which means the Judge will not call your name during the docket. Instead, your file will be on the prosecutor's desk and the Judge will only call those individuals representing themselves pro se. The prosecutor will then speak with the officer's, witnesses, and victims, if any, of those cases where the Defendant is represented by a lawyer. Once the prosecutor has done so, your lawyer will then have an opportunity to speak with the prosecutor to get discovery (essentially, what their evidence is). During that time, your lawyer will also attempt work out a favorable resolution for your case. This is the time in which your lawyer will present mitigating evidence to the prosecutor however, in DUI cases, mitigating evidence is not entirely relevant since DUI cases are typically not subject to prosecutorial discretion. Nevertheless, there are times when an individual has an elevated blood alcohol level and mitigating evidence can help get the BAC reduced to avoid mandatory jail time.
Once your lawyer has spoken to the prosecutor, they will come get you from the courtroom and you will discuss the plea offer that has been made. Some prosecutors are more lenient than others and offer better plea bargains than others. In the event you are offered a plea bargain that does not suit your expectations, your lawyer will have one of two options: (i) ask the court to continue the case to the officer's next traffic date (they're preset), or (ii) go to trial. In Fairfax County, Prince William County, and Loudoun County, they have trial advisement and plea forms that must be signed in the event you and lawyer have worked out a plea bargain with the prosecutor. The plea form will set forth the charge and the agreement. The client must read the form carefully and ask their lawyer any questions before signing it. In DUI cases, generally, it's fairly straight forward. Presumably, a good deal would be a reduction to reckless driving. If signed and agreed, your lawyer would then hand up the plea form to the Judge for them to execute the plea agreement. At that point, the Judge is merely a scrivener of sorts and incorporates the plea agreement in the file.
Your Free Initial Consultation
We offer a no obligation Free Initial Consultation to discuss your DUI case. You can either come in for an in-office appointment or do a telephone conference. We will talk about the facts of your case, whether any mitigating evidence is necessary, the price for the representation, and the next steps. While each case is different, our fees are reasonable. We like being in court and enjoy helping people. We can help you too.
Finding the Best DUI Lawyer
As discussed in our blog, choosing your DUI lawyer is vitally important to your case. There are thousands of lawyers in the Northern Virginia area but only a handful can properly handle your case. Certainly, you would not want to hire a civil lawyer to handle your DUI case. DUI lawyers are generally in court everyday and appear in front of the same judges and prosecutors on a consistent basis. This relationship with the court is not established when an attorney appears in court once a month.
The best way to find the best Lawyer for your DUI case is to do your research and meet with the lawyers you're considering. Make sure they answer all of your questions and make sure that they consistently represent people on such cases. Driving While Intoxicated is a serious traffic misdemeanor and the case should be handled by a competent DWI Attorney.
DUI Lawyer Cost
The cost for a Fairfax DUI Lawyer for a DUI or DWI charge depends on the individual's breath or blood alcohol level. The cost will also depend on whether the DUI is a first offense, second offense, or third offense. We offer very competitive flat rates (i.e. one-time fee) on all DUI cases. We will quote you the fee during your free initial consultation so that you can then decide if it works for you.