If you have been charged with Driving While Intoxicated in Northern Virginia, it is important that you know what you’re facing and whether you have a defense to the charge. DWI law is extremely complex, and an experienced lawyer who knows the courthouse can make a real difference. Call us for a free consultation and we can tell you whether you have a defense, whether you can avoid jail, and whether you can keep driving for the things you absolutely need to do. The attorneys at Zinicola, Blanch, Overand & Hart regularly represent clients in DWI cases in every jurisdiction in Northern Virginia. We know the courthouse and we are prepared to try your case or to get you a plea offer that protects your interests.
Ten Things to Know About Virginia DWI Law:
- Virginia Does Not Distinguish Between DUI and DWI
In fact, there is no charge in Virginia called “DUI” or “Driving Under the Influence.” In Virginia, these charges are referred to as DWI, or Driving While Intoxicated. DWI applies to any driver whose Blood Alcohol Content is 0.08 or higher or is under the influence of alcohol or any other intoxicant to a degree which impairs his ability to operate a motor vehicle safely. Virginia has some of the harshest penalties in the nation for DWI convictions.
- You Don’t Have to Drive to Get a DWI
Virginia’s DWI laws prohibit not only driving a motor vehicle, but also “operating” one. Virginia’s courts have interpreted “operating” to mean simply being in “actual physical control” the vehicle, regardless of whether the engine is running. As a result, sitting in your car to listen to the radio or to warm up on a cold night can get you convicted of DWI if you have been drinking.
- You Can Be Convicted of DWI Even if You Have Had Nothing to Drink
Virginia’s DWI laws apply to both alcohol and drugs. If an officer has probable cause to believe that you are under the influence of intoxicating drugs, the law permits him to take a sample of your blood. You can be convicted of DWI for using illegal drugs or for legal drugs for which you have a prescription. In drug cases, the prosecutor generally must introduce into evidence the results of the blood test and explain what they mean. This requires numerous additional witnesses to prove the case. As a result, proving these cases can be difficult, expensive, and time-consuming. If you are charged with a DWI Drug offense, you should hire an attorney who has handled these cases before, understands the toxicology of drugs, and knows how to prevent the prosecution from using their drug evidence against you.
- You Are Not Required to Perform Field Sobriety Tests
If you are pulled over by the police and they suspect that you have been drinking, they will ask you to perform Field Sobriety Tests (“FST”) to determine whether to arrest you. These tests may include standing on one leg, walking the line, touching your fingers to each other or to your nose, or reciting the alphabet. Every person should know that these tests are completely voluntary and that can refuse to do them without penalty. In most cases, it is in the driver’s best interest to refuse these tests, even if the driver is not drunk, and even if the officer is threatening to arrest you if you do not perform them. These tests are highly subjective and are not based on any reliable scientific evidence. Whatever the officer might tell you, your performance on these tests will be used against you in court, and even the slightest deviations from the officer’s instructions may cause the officer to tell the Judge that you “failed” the test.
- You Are Not Required to Give a Roadside Breath Sample
If you are pulled over by the police and they suspect that you have been drinking, they will also offer you a Preliminary Breath Test (“PBT”) on the side of the road. This is a small handheld device used to test for the presence of alcohol. Like the field sobriety tests, this PBT is voluntary and you cannot be penalized for refusing to do it. The PBT devices are not scientifically reliable, are often not properly calibrated, and can give false high readings. Taking the PBT will probably not help you if you have had anything to drink.
- You Are Not Required to Answer the Police Officer’s Questions
When the police pull you over, you are a suspect in a criminal investigation. As in any criminal matter, you have a Constitutional right not to answer any questions. If you tell a police officer that you have been drinking, how much you have had to drink, where you are coming from or going, or anything else, you can expect to have those statements used against you in court to prove that you were drinking before you were pulled over. While you should always be respectful when speaking to a police officer, it is generally in your best interests to answer the officer’s questions by saying, “I do not want to answer any questions and I want to speak with my lawyer.” If the office persists, you should ask “Am I free to leave?”
- If You Are Arrested Without Probable Cause, Your Case Will Be Dismissed
If you are suspected of a DWI, the police have the right to pull your car over to investigate. However, there are limits to how long they can hold you for investigation. The police need sufficient evidence to establish probable cause before they can lawfully arrest you. One of the reasons that you should not talk to the police, perform Field Sobriety Tests, or give a roadside breath test (PBT) is that each of those things give the police evidence to establish Probable Cause and justify your arrest when your case goes to court. If you exercise your right not to participate in those voluntary tests, you cannot be punished for your refusal to participate, and it will be more difficult for the police to establish probable cause at court. Your case will be dismissed if the police fail to establish probable cause. The law of probable cause is extremely complicated and fact-specific. It is vital that your attorney regularly defends DWI cases so that your attorney will be up to date on the law and be prepared to argue issues like this in Court.
- If You Are Arrested, Refusal to Provide a Breath Sample at the Jail Can Result in the Suspension of Your License
If you have been arrested for DWI, and the arrest occurred on a public roadway, then the police are entitled to a sample of your breath to determine how much you have had to drink. Refusing to provide this sample makes it much harder for the prosecution to prove the DWI charge, but refusal comes with other consequences. If you refuse to give a breath or sample at the jail or police station, you will be charged with the offense of Refusal. A first offense Refusal is a civil, rather than a criminal, offense. The only penalty for first-offense Refusal is a mandatory one-year license suspension. You are entitled to a trial for refusal, just like any other offense. If you are convicted, DMV will suspend your license for 12 months and no restricted driving privileges are available. If you have previously been convicted of a DWI or Refusal, a second Refusal of a breath alcohol test is a criminal offense that can result in a three-year license suspension, up to 12 months in jail, and a fine of up to $2500.
- If You Are Arrested, Refusal to Provide a Blood Sample May Result In Suspension of Your Driver’s License. But, That Law May Be Unconstitutional.
Virginia’s refusal statute makes it a civil offense to refuse a police officer’s demand to take your blood after you are arrested for DWI. The penalty is a one year license suspension for a first offense, or a three year license suspension for a third offense. No restricted license is available in Refusal cases. It is important to know that the United States Supreme Court has held that police must obtain a warrant before taking your blood without your consent. Therefore, it appears likely that Virginia’s blood refusal statute is unconstitutional because it allows the police to demand your blood without a warrant. If you have refused a blood test, you need to talk to an experienced DWI attorney who can help you understand your rights. We have taken this issue to the Supreme Court of Virginia and we are prepared to defend your case as far as is necessary to protect your rights and your record.
- The Result of Your Breath or Blood Test Will Be the Most Important Piece of Evidence Against You in Court
The Blood Alcohol Content (BAC) is the most important evidence against you in a DWI case. Virginia Law states that if the BAC is 0.08 or higher, the Court may infer that you are intoxicated and may find you guilty of DWI. If your BAC is below 0.08, then it is extremely unlikely that you will be convicted of DWI. If there is no BAC in your case, it becomes much more difficult for the prosecutor to prove her case. In such cases, the prosecutor will rely on your driving behavior, any statements you have made to the police, and your FSTs to prove your guilt. This is another reason that providing this information to the police is rarely in your interests.
Penalties for First Offense DWI Cases
Even if your Driving While Intoxicated (DWI) case has no defenses likely to lead to your acquittal, you should still retain counsel to attempt to negotiate a plea agreement that results in a reduction of the charge, or at least the minimum punishment possible, and a restricted license so that you can keep your job and care for your family. If you are charged with a DWI, you should read our Ten Things You Need to Know About Virginia DWI Law page. In addition, you should know what kind of penalties you may be facing if you are convicted. Every DWI carries five separate types of possible penalties:
- Jail Sentance
The court may imprison you for up to 12 months on a first offense DWI. If your case involves a car accident, personal injury, a high Blood Alcohol Content (BAC), or other dangerous or reckless behavior, you are more likely to go to jail on your court date. In high-BAC cases, jail time is mandatory. If your BAC is 0.15 to 0.20, the Court must impose five days in jail. If your BAC is 0.21 or higher, the court must impose ten days in jail. A skilled attorney may be able to raise doubts about your blood alcohol content, or keep such evidence out of your trial. If that is not likely, your attorney may still be able to work out a plea agreement that will reduce or eliminate a jail sentence.
- License Suspension
If you are convicted of a DWI, the court must suspend your driving privilege for one year. The court may grant you a restricted license to drive to work and for other purposes if it believes that you are not an ongoing danger to the community. The higher your BAC, the greater the risk that a judge will refuse to give you a restricted license. An attorney can help you to avoid that pitfall by helping you to put the judge’s mind at ease about giving you’re a restricted license.
- Virginia Alcohol Safety Action Program (VASAP)
Every person convicted of a DWI must enroll in and complete the VASAP program, which is the probation supervisor for DWI charges. The standard VASAP program is a 10-week educational course with a fee of about $400. If the VASAP program believes that you are in need of treatment for substance abuse, VASAP will refer you to court-mandated substance abuse counseling and treatment at additional cost. Failure to complete these requirements is a violation of your probation, and the court may put you in jail and/or revoke your restricted driving privileges.
- Ignition Interlock Device
Anyone who is convicted of a DWI offense is required by law to install an ignition interlock device on their vehicle before the Court will issue a restricted driver’s license. The ignition interlock device requires the driver to blow into the machine and demonstrate that there is no alcohol on his breath before the car will start.
- Fines, Costs, and Fees
If you are convicted of Driving While Intoxicated, the court may fine you between $250 and $2500 dollars for a first offense. If your BAC is above 0.15, you may be subject to additional mandatory fines. Virginia also imposes court costs if you are convicted of a DWI offense, which can be hundreds of additional dollars.
Penalties for Second Offenses
Second offense DWI convictions come with a mandatory jail sentence of between 10-50 days depending on your BAC and how recently you were convicted of your first offense. The court must impose a fine of between $500 and $2500 in these cases. In addition, the court must suspend your driving privilege for three years. A restricted license is unavailable at the time of conviction and you will have to wait at least 4 or 12 months to get a restricted license. In some cases, an experienced attorney may be able to prevent the prosecutor from using your prior conviction against you, or to negotiate a settlement where you are punished as a first offender rather than a repeat offender.
Penalties for Felony Third and Subsequent Offenses
Conviction for three or more DWIs in a ten year period is a felony punishable by up to five years in prison. In addition to a felony conviction, the Court is required to sentence the defendant to between three months and one year in jail, depending on how many prior DWI convictions the defendant has and how recent they are. The court will also suspend your license indefinitely and impose a fine of at least $1000. A felony conviction will prevent you from voting, owning a firearm, and receiving certain public benefits, as well as making it extremely difficult to get a job. These are very serious charges and require experienced, skilled representation.