A charge of Driving Under the Influence (DUI) in Virginia is arguably the most severe traffic charge the average person comes across. In fact, DUIs are surprisingly common. In the past ten years, there were an average of 25,857 DUI convictions in Virginia. Unfortunately, due to the astounding number of DUI charges every year, the consequences and penalties are becoming more severe each year. A DUI conviction that occurs in Fairfax County can result in jail time, a loss of privilege to drive, probation, large fines, and additional penalties. 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 so we can discuss your case and any defenses you may have. We routinely appear in the Fairfax County General District Court, Fairfax City General District Court, Town of Vienna Court, and Town of Herndon Courts of Fairfax County.
Driving Under the Influence of Alcohol in Fairfax County, Virginia
Driving Under the Influence (DUI) and Driving While Intoxicated (DWI) are interchangeable and mean the same thing. Virginia Code §18.2-266 is the statute that makes it unlawful to drive while intoxicated. Most people know it is illegal to drive with a blood-alcohol level of .08 or more. This is because Virginia Code §18.2-269 creates a rebuttable presumption that an individual is intoxicated at a .08 blood-alcohol or more. In fact, the even law presumes that the amount of alcohol in the blood or breath of that is taken 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.
In addition, the statute also has a catchall that criminalizes driving under the influence of alcohol. Notice that there is no mention of a blood-alcohol level here. This is because there are cases where there is no blood-alcohol level, but it may be clear the individual is intoxicated by other evidence. This happens a lot in parking lot cases where the person is not operating a motor vehicle on a highway (more on this below) or in accident cases where too much time has passed to get an accurate assessment of the blood-alcohol level at the time of driving.
Finally, it is possible to be convicted of a DUI with a blood-alcohol level less than .08 (though these cases are a lot more winnable). Under Virginia Code §18.2-269, if an individual has a blood-alcohol level of between .05 and .07, then there is no presumption they were driving while intoxicated. Rather, the prosecutor will have to rely more heavily on any field sobriety tests taken and other evidence to try to prove intoxication. And in those cases where an individual has a blood-alcohol level of .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).
Driving Under the Influence of Drugs in Fairfax County, Virginia
It possible to be convicted of a DUI for driving under the influence of drugs in Fairfax County (sometimes called “DUID”). A common reason for being charged with DUID is evidence of consumption of marijuana. In many cases, marijuana is found in the vehicle and, sometimes, it is clear it was recently smoked. This evidence coupled with red eyes, dilated pupils, and some confusion can lead to a driving under the influence of marijuana charge. However, there is no presumption of intoxication in this type of case so DUI marijuana cases in Fairfax County are very winnable since intoxication from marijuana is hard to prove.
In other cases we see, people have taken sleeping medications such as Ambien (Zolpidem) and Lunesta (Eszopiclone) and are either “sleep driving” or are having trouble sleeping so they run out to the store. Due to their lethargy from the medication and, in many cases, an inability to clearly articulate where they are going, they may be considered under the influence of sleeping medication. In these cases, the Prosecutor will need an expert to testify what levels would be needed in order for intoxication. With proper case preparation, driving under the influence of sleeping medication are winnable cases.
There are some drugs where there is a presumption of intoxication if too much of it has been consumed. Under Virginia Code §18.2-266, there is a presumption of intoxication if the person has .02 milligrams of cocaine per liter of blood, 0.1 milligrams of methamphetamine per liter of blood, or .01 milligrams of PCP per liter of blood.
Finally, it is possible to be convicted of a DUI if you are under the influence of prescription medication. Any DUI cases involving prescription medications need close attention because they can involve involuntary intoxication which means you did not intend to get intoxicated.
How to Prove a DUI in Virginia
Operation of Motor Vehicle
It is hard to believe that whether or not an individual was driving a motor vehicle could be hard to prove. In most DUI cases a person is stopped by the police while they are driving. However, this issue can come up in cases when an individual is asleep at the wheel, the vehicle is not moving, and the keys are not in the ignition. At that point the driver could be extremely drunk but it wouldn't matter because they're not “driving.”
This issue can also arise in accident cases when the officer arrives to the scene to see the suspect standing outside of the vehicle and the engine is off. If the person does not admit to driving, the element of operating a motor vehicle is not met and the person is not guilty of the offense of driving under the influence because it cannot be proven that when they were driving they were intoxicated at that time. In the alternative, they may not even be able to prove that the person they're speaking was driving at all.
At the Letnick Law Firm, PLC we have had DUI accident cases in Fairfax County dismissed because it could not be proven our client was driving.
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 because the requirement to submit to a breath or blood test only arises in cases where the person is driving on a highway.
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 the area is not deemed a highway, then the individual did not impliedly consent to have their alcohol or drug level tested and the results are inadmissible at trial. This will substantially help the accused because now there is no presumption of intoxication no matter how intoxicated they were. Judges in Fairfax County are keenly aware of this law 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 or detects recent drug use, 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 to see if they are safe to drive home.
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 Test
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 exceedingly 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 and distraction. Imagine now that you are standing on one leg for the one-legged stand test, while counting, when this happens and yet need to concentrate?
For the 9-step walk-and-turn test the officer may ask you to walk an “imaginary” line. Can they really accurately testify that you stepped offline on certain steps while wearing heels while walking an imaginary line on wet pavement in the dark?
Perhaps it is 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?
The Judges in Fairfax County pay close attention to how people do on their field sobriety tests. We closely analyze these tests because we may wish to challenge probable cause for the arrest. If the individual did well on the tests, even if there is evidence of consumption of alcohol or a drug, they may not actually be intoxicated.
Do your best to recall the tests and the environment you took the tests in when you speak to a DWI Attorney so we can look at what we can challenge in court.
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.
DUI Penalties in Fairfax County
In most cases a DUI is a Class 1 Misdemeanor but can be a felony if there are prior convictions. All DUIs carry a license suspension, potential jail time, and probation. Penalties for a DUI conviction in Fairfax County will depend on whether it is a First Offense DUI, Second Offense DUI, or Third Offense DUI. Penalties will also depend on the blood-alcohol level because there may mandatory jail time with the requirement to complete ASAP probation with installation of ignition interlock in your vehicle.
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. Each case is different but our fees are reasonable. Whether your DUI case is heard in the Fairfax County General District Court, Fairfax City General District Court, Town of Vienna Court, and Town of Herndon Court, we can help.
Finding the Best DUI Lawyer
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 every day 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.
To find the best DUI Lawyer in Fairfax County, do your research and speak with the lawyers you are considering. Make sure they answer all 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 blood-alcohol or drug 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.