THE HONEST GUIDE TO

VIRGINIA DUI DEFENSE

WHAT YOU NEED TO KNOW

 
 

Do I Need A Lawyer?

If you’re reading this right now, you may have just had one of the worst nights of your life. You were likely handcuffed, thrown in a police car, and spent several hours in jail. You might be wondering, do I really need a lawyer?

It’s tempting to think that you can go to court by yourself, explain the circumstances to the prosecutor and judge, and work it out on your own. It’s also easy to think that, if you’re clearly guilty, you should save the money, plead guilty, and eat a conviction.

Don’t be one of those people. The reality is that DUIs are a hot button political issue. Think about it:

●  Prosecutors run campaigns based on being tough on DUIs.

●  Legislators get elected by writing harsh DUI laws.

●  Organizations like Mothers Against Drunk Driving (MADD) send representatives to watch DUI dockets and take notes on judges and prosecutors to ensure tough DUI consequences.

When you’re charged with a DUI, there are powerful forces who want you convicted and punished. Your lawyer is the ​only​ person in the entire process looking out for your interests.

Consequences of a DUI conviction can include: 

● jail time;
● losing your license;
● huge fines;

● skyrocketing insurance premiums; and

● loss of security clearances.

 

You wouldn’t jump into a major surgery without professional medical advice. With these potential consequences hanging over your head, don’t try to navigate the legal world without professional advice. Look at it as an investment in your future. Accept it now. You need a lawyer on your side.

First Steps

Bond Hearings

Once you’re arrested for a DUI, you’re going to be taken before the magistrate who will make an initial bond determination. What happens then often hinges on whether you have any past DUIs.

● 1st DUI offense​. If it’s your first DUI, usually you’ll be released on a PR Bond (personal recognizance) meaning you’re released without paying any money, but you do have to sign a promise to return to court. If you're reading this on your computer at home, there is a good chance that you've already been released on a bond issued by a magistrate.

 

● 2nd DUI offense.​ Getting a bond can be difficult starting with a second DUI offense. In some cities, judges won’t release people charged with a second offense without proof that they’re going directly into a treatment program.

● 3+ DUI offenses.​ For those with three or more DUI offenses, it’s not unusual for judges to require inpatient treatment before even considering bond. A good DUI attorney should know the respected local treatment programs and be able to guide you accordingly.

If you’re charged with a second DUI offense or more, we highly recommend seeking treatment regardless of your bond situation.

First, let’s face it, you probably need some help. Second, you’re going to be in a much better legal position if the Court sees that you recognize you have a problem, and you’re serious about getting help for it.

Alternatives: SCRAM Bracelets

Another bond option that has become popular in many cities is the use of SCRAM bracelets. These bracelets (don’t get excited, they’re like giant tethers) are worn 24/7 and take continuous readings from your skin to detect any alcohol you consume. If you so much as crack a Miller Lite, then you go back to the slammer. There are numerous private companies that offer SCRAM bracelets. They’re not cheap, but it sure beats sitting in jail.

Appeal Bond Hearings

If you’re denied bond in the General District Court, you are entitled to appeal to the Circuit Court where another bond hearing will take place in front of a different judge. The Circuit Court bond hearing is the last bond hearing that your are entitled to by law.

Administrative License Suspension

 

If you’re arrested and provide a breath sample of 0.08% BAC or above, your license will be automatically suspended in what is known as administrative license suspension.

The suspension period is:
 

● 1st offense DUI: 7 days
● 2nd Offense DUI: 60 days

 

You’re subject to the same administrative suspensions if you refuse to submit to the breath test (see ​Virginia Code 46.2-391.2​ for this rule). This is true even though no evidence has been presented against you in a court of law. During the administrative license suspension period, you’re not eligible for even a restricted license for driving to work, medical appointments, childcare, etc. ​You cannot legally drive at all. Period.

If you’re caught driving during the administrative suspension period, you will be hit with an additional criminal offense. As soon as the administrative suspension is over, you can pick up your license from the clerk’s office. Some clerk’s offices will allow your attorney to pick it up for you. You can request a hearing to try to lift the administrative suspension (based on lack of probable cause for arrest), but it is extremely rare for judges to grant these requests.

Arraignment

 

Your arraignment is your first scheduled court date. It’s also sometimes called “first appearance” or “determination of counsel”. Most cities schedule arraignments within 2-3 weeks of your arrest date.

Don’t panic. Your arraignment is ​not​ your trial. The arraignment is simply meant to establish:

1. What you are charged with.
2. What you plan to do for legal representation.

3. The actual trial date.

You do not enter a plea, and no witnesses or evidence will be presented against you at the arraignment. In fact, if you hire an attorney before the arraignment, most cities will not even require you to appear.

Common Defenses

 

The first thing your attorney will do is file a motion for discovery. The prosecution will then be required to provide information about the evidence against you.

 

In a DUI case, that means that you will typically be getting the officer’s written investigation notes and any body cam or dash cam footage that exists.

The officer's notes will include the arresting officer’s observations, such as:

● whether you pulled over promptly in a safe area; 

● whether you engaged in erratic driving behavior; 

● whether you had signs of intoxication, like:

○ slurred speech;
○ the smell of alcohol;
○ bloodshot eyes;
○ a verbal admission of having been drinking; or ○ being unsteady on your feet.

 

The officer’s notes will also include info on how you did on the field sobriety tests. Your attorney will also receive any breath or blood test results. Be prepared that the court system moves at a snail’s pace. You should expect it to take at least a month, if not longer, before your attorney receives the evidence. Once they do get it, they should contact you. Any reputable attorney is going to want to review all the evidence with you, and discuss all your defense options well before your actual trial date.

 

Common Defenses​:

We could devote multiple volumes of books to possible DUI defenses, so we’ll only cover the most frequently used ones here. This is why you need a lawyer - to help you choose the best possible defense for your specific case.

Your best DUI defense could include questioning:

●  the basis for stopping you in the first place;

●  the admissibility of the breath test;

●  the reliability of the breath test;

●  how the field tests were conducted;

●  whether they can prove you were driving;

●  whether they can prove that you didn’t drink ​after​ an accident;

●  whether they can prove that proper protocols were followed in collecting your breath or blood; or

●  whether there is reasonable doubt as to the grade of offense.

There are many more possible defenses, and none of them are simple or guaranteed. The fact that it’s complicated is exactly why you need a lawyer on your side.

 

 

 
 
 

Frequently Asked Questions

No doubt you have some questions by now. Here are some of the questions we get asked the most by clients charged with a DUI.

What Are My Chances of Getting a DUI Dismissed?

 

We’re going to tell you something that most lawyers won’t tell you at the consultation: statistically speaking, you’re probably going to get convicted no matter who you hire.

 

The DUI conviction rate in Virginia Beach is over 90%. That’s in line with every city in Hampton Roads. Let’s say that you hire a brilliant DUI attorney. Your attorney is so good that clients who hire them are twice as likely to have their DUI dismissed. That attorney would still have 80% of their clients convicted.

 

Then Why Don’t I Save the Money on Hiring an Attorney?

First, you very well might fall into the pool of people who can win their case. You will never know if you don’t have a good lawyer.

Second, even if you can’t get the case dismissed, it’s still crucial to have a good lawyer who can look for reasons to reduce your punishment. A good lawyer can be the difference between 10 days sleeping on a filthy cold mattress at the local jail versus walking out of the courtroom and going home.

Should I Go To Trial or Take A Deal?

 

Obviously, this is going to depend on the facts of your case.

There are compelling reasons to plead guilty in some cases. For example, If you’re charged with DUI at .15 and the prosecutor offers to reduce the charge to below a .15, you might be looking at an amazing deal because you’d be getting out of serving mandatory jail time (required for DUIs where BAC is more than .15). But while pleading guilty to DUI might make sense in some cases, guilty pleas are far too common. The truth that many lawyers won’t tell you is that, in many cases, the person who goes to trial and loses is getting the exact same sentence as the person who pleads guilty. If you’re not going to get any extra punishment for a trial, you might as well plead not guilty and take a shot. You never know what might happen - we’ve won cases that appeared nearly hopeless before the trial.

If I’m Found Guilty, What Will Happen To Me?

 

DUI penalties are somewhat standardized. The allowable punishments can be found in ​Virginia Code 18.2-270​.

Jail Time

The Good News

 

Yes, there can be good news, especially if this is your first DUI offense!

If it’s your first offense, and you blew less than a .15, you have a very good chance of avoiding jail time. 

First and second DUI offenses are both Class 1 misdemeanors, meaning the maximum punishment you could possibly receive is 12 months in jail. In reality though, almost nobody gets the maximum sentence, or anywhere close to it.

First offense convictions don’t require jail time, unless there was a minor passenger (17 or younger) in the vehicle, or your BAC was a .15 or above.

The mandatory minimum jail time for 1st offense DUIs is as follows:

●  If there was a minor in the car, the mandatory minimum is 5 days.

●  If your BAC was .15 to .20, the mandatory minimum is 5 days.

●  If your BAC was .21 or above, the mandatory minimum is 10 days.

●  If there was a minor in the car and your BAC was .15 or above, the mandatory minimums are consecutive.

 

By “consecutive”, we mean the minimum jail time is added together. For example, if your BAC was .15 (5 days jail time required) and a minor was in the car (5 days jail time), the mandatory minimum jail time for the incident would be 10 days.

License Suspension

 

For a 1st offense DUI, your license will be suspended for 12 months, although you will be eligible for a restricted license. The first 6 months of the restricted license require an ignition interlock device, an alcohol-detecting device that you must blow into before your car will start.

Fines

In addition to jail time and the license suspension, the minimum fine for a first offense is $250. If there was a minor in the car, the minimum fine increases to $750.

You will also be court ordered to complete ASAP (an alcohol program) through the court. To add an insult to injury, the fines do not include expenses incurred through ASAP, court costs, paying for the interlock, or your soon to be skyrocketing insurance premiums.