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 magistrate's bond. Often it will be a PR (personal recognizance) bond 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, then you've probably 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 especially if your first DUI was recent. 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. For our clients charged in Hampton Roads, two of the more respected inpatient programs are Farley Center in Williamsburg and Edge Hill Treatment in Winchester.  These are by no means the only inpatient programs out there, but the courts know and respect them.  

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. If you're denied bond in in the lower court, there is no reason not to try in higher court because you have nothing to lose. The only caveat is that it might be wise to wait until you've made treatment arrangements. 

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. If you need more time to hire an attorney, most cities are good about giving you a little extra time.

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;

●  whether there was probable cause to arrest you;

●  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 .15 or above). But while pleading guilty to DUI might make sense in some cases, our observation is that guilty pleas are too common. The truth that some 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.

Even if your BAC was .15 or above, you’re likely looking at only getting the mandatory minimum unless there’s some aggravating circumstance.

What’s an example of an aggravating circumstance?

● You acted like a jerk to the cop.
● You blew an astronomically high BAC.
● You were driving the wrong way down the highway.

 

You get the picture. The difference between a .14 and a .15 or between a .20 and .21 is big because of the mandatory time. On borderline cases, a good attorney is going to look for every angle to get your punishment reduced.

The Bad News

If this is your second DUI arrest or more within 10 years (the time period is determined from arrest date to arrest date, ​not​ from dates of conviction), things can get ugly quickly, because you’re establishing a pattern of behavior. Here are the minimum sentences you can expect.

 

Second DUI Offense:

●  Within 5 years of the first DUI arrest, carries a mandatory minimum of 20 days jail time, regardless of your BAC.

●  Within 10 years of the first DUI arrest, carries a mandatory minimum of 10 days jail time regardless of your BAC.

●  If your BAC was .15 to .20, add 10 days more mandatory minimum time.

●  If your BAC was .21 or above, add 20 more days of mandatory minimum time.

Third DUI Offense:

●  Within a 10 year arrest period, you might as well start decorating your jail cell because you’re going to be calling it home for a while. The charge is elevated to a class 6 felony (5 year maximum) and the mandatory minimum sentence is 90 days in jail. And that’s if you’re lucky.

●  Within a 5 year arrest period, it’s still a class 6 felony, but the mandatory jail time goes up to 6 months. And you should be whistling Bobby McFerrin and Pharrell tunes if you get the minimum. You face the very real possibility of significant prison time (as in a year or more in the slammer).

Fourth DUI Offense:

● Within a 10 year arrest period, it’s still a class 6 felony, but the mandatory time is 1 year. We’ve seen judges that won’t blink 

an eye at imposing the maximum sentence of 5 years on DUI fourth charges.

● Important note. Any ​DUI after you’ve been convicted of a DUI felony  is treated as a DUI fourth regardless of the time frame. Even if ten, twenty, thirty years have gone by since the felony conviction, it doesn’t matter.

46.2-391 Charges:

● This has become an increasingly common companion charge to felony DUIs. Basically it’s a separate charge for DUI while your license is suspended for a DUI 2nd or more offense. This is a very ugly and dangerous charge. It carries a 12 month mandatory minimum sentence that ​cannot​ be run concurrently with any other sentence. For example, if you’re charged with DUI 3rd within 5 years and 46.2-391, your mandatory minimum sentence is 1 year and 6 months (6 months for the DUI and 12 months for the 46.2-391 charge).

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.

How To Avoid Future DUIs

If you’ve already been charged with DUI, there’s obviously nothing that you can do at this point to change the facts of your case. Your best bet is to use the advice here to find a good attorney. But, you can help yourself in the future by being educated.

1. Don’t Put the Keys in the Ignition

Even if you’re sleeping it off, or just chillin’ in your car, if you’ve been drinking, ​don’t​ put your keys in the ignition. Something people often find out the hard way, is that you don’t have to be driving to get a DUI.

So you stumble out of the bar and walk to your car. You realize that you shouldn’t be driving. You try to do the right thing by sleeping it off in your car. You turn on the heater and take a little nap. You're not doing anything wrong because you aren't driving, right? Wrong.

You would be shocked how many DUIs involve cars that aren’t even in motion. The Supreme Court of Virginia has said that “operation” of a car includes putting the key in the ignition without even turning the car on. It doesn’t matter if you’re trying to do the right thing by sleeping it off. Sitting in the driver’s seat with keys in the ignition (even with the engine off) equals operation for DUI purposes. So if you’re hammered and need to sleep it off, lay in the passenger seat or climb in the backseat. Better yet, call an Uber.

2. You Can Get A DUI Under The “Legal Limit” of .08
 

It’s important to know that, although .08 is “the legal limit”, ​you

can still get a DUI, even if you’re below a .08​.

Virginia courts define being under the influence as consuming enough alcohol to affect a person’s “​manner, disposition, speech, muscular movement, general appearance or behavior, as to be apparent to observation.​”

 

All that needs to be proven is that alcohol affected any one of those things. That means that you can get convicted, even with a BAC under .08. Under the law (​Virginia Code 18.2-269​):

●  Blowing .08 or above means the judge ​can ​determine you were intoxicated, based on the test alone. And they almost always will.

●  Blowing .06 or .07 means the judge ​can’t​ determine anything from the test alone. Other evidence would need to come into play. However, we have seen cities where the prosecutors still routinely push cases even when the BAC is .06 or .07.

 

●  Blowing .05 or below means ​the test alone is evidence that you were not intoxicated​.

 

However, believe it or not, we’re seeing an increasing trend of prosecutors attempting to prosecute, even in .06 and .07 cases 

based on “extrapolation” testimony that your BAC ​would​ have been higher at the time of driving.

3. Understand the Two Breath Tests

Many people don’t realize that there are two breath tests involved in every DUI investigation: The preliminary breath test (PBT), and the official station test. You may be surprised to learn that ​the preliminary breath test is mostly risk-free​.

The preliminary breath test (PBT) is offered by the officer at the scene of the DUI. The results of the PBT ​cannot​ be used against you in court, with the exception of challenging probable cause for the arrest (a rarely successful defense).

That means that it’s a mostly risk free test. If you blow below a .08, there is a decent chance that the officer will just let you go. Even if you’re PBT is extremely high, the results can’t hurt you in the courtroom.

If an officer is offering you the PBT, they’ve almost always already decided to arrest you. So, you might as well take your chances.

The second breath test at the police station, however, ​is admissible in court​. This is the official test that is used in the courtroom. In most circumstances, you should decline this test. When people who know the system (like prosecutors, police officers, or defense attorneys) get popped for drunk driving, they almost always refuse the second breath test. That’s because if you blow .08 or above on that test, it’s going to be an uphill battle to get out of a DUI conviction. And even worse, if you blow .15 or above, you’re looking at mandatory jail time, even on a first DUI. It’s a sad irony that being a good, honest, and cooperative person is a liability, but the truth is that there is a good chance that you’re handing your case to the prosecution if you agree to blow.

There is a downside to refusing the breath test, though. You will get hit with a refusal charge. But first offense refusal is only a civil penalty. A civil penalty means no jail time, although it does carry a one year license suspension (see ​Virginia Code 18.2-268.3​). That sucks (and you’re not eligible for a restricted license if convicted of refusal), but it’s better than gift wrapping a conviction for the prosecution and exposing yourself to mandatory jail time.

Even more reason to refuse the breath test, is that ​refusing the test can’t be used against you as evidence of intoxication​ in the DUI prosecution (see ​Virginia Code 18.2-268.10​). Furthermore, there are lots of judges/prosecutors who will dismiss refusal charges if you end up pleading guilty to the DUI in court (see ​Virginia Code 18.2-268.4​). 

  

4. You Can Decline Field Sobriety Tests (FSTs)

We've represented hundreds of people charged with DUI and seen thousands of hours of body cam footage of field tests being conducted. Our experience has taught us that field sobriety tests (FSTs) are extremely unreliable, and you should decline to do them.

 

The three most commonly used Field Sobriety Tests are:

1. the “walk and turn”
2. the “one leg stand”, and
3. the “horizontal gaze nystagmus” (HGN) test.

These tests are all championed by the National Highway Traffic Safety Administration (NHTSA). The ​NHTSA training guide​ is considered to be the DUI field test bible across the nation.

 

However, they’re not scientists, and NHTSA has used extremely questionable research methods to determine the legitimacy of the field tests. Unlike the standards employed by actual scientists, NHTSA hasn’t opened their findings up to any meaningful sort of peer review.

A look at the NHTSA website will show you that their expertise relates more to vehicle safety and technology - not scientific studies or the physiology of the brain and body.

The FSTs

Regardless of how much we might bitch and moan about them, FSTs are used. These are the tests that courts consider everyday when convicting people of DUIs, so let’s review them.

The Walk And Turn

 

In this test, the police ask you to take 9 heel to toe steps (usually on an imaginary line), turn around with a series of small steps, and then repeat 9 heel to toe steps in the opposite direction. They'll record if you start the test too early, whether you step off the imaginary line, whether you raise your hands for balance, whether you fail to maintain heel to toe contact, whether you take the proper number of steps, and whether you turn using a small series of steps. Any failure is considered a sign of impairment. Being that this is the first time that you've ever attempted this test, that your adrenaline is likely pumping, and that an officer is actively looking for you to screw up, you're probably not going to ace this test.

The HGN Test 

The HGN test, or horizontal gaze nystagmus, involves an officer conducting an ophthalmological medical examination on the side of the road and diagnosing you as drunk. The officer moves a pen or finger across your field of vision, and you’re supposed to track the object with your eyes. The theory is that if your eyeballs jerk too much as you track

the object (indicating what is known as nystagmus), you’re probably drunk. The problem is that officers aren’t eye doctors and are completely unqualified to give a medical diagnosis. Nystagmus is a vision condition in which the eyes make repetitive, uncontrolled movements - but it can be caused by a variety of factors outside of intoxication. Unfortunately, that hasn’t stopped HGN testimony from being a standard part of almost every DUI prosecution. To make matters worse, we've dealt with a number of officers who don’t even know how to conduct the test properly. They don’t know how far to hold the object, how fast to move it, or what to look for. They use phrases like “sustained and distinct nystagmus at maximum deviation and onset prior to a 45 degree angle.” But when you question them about what that means, you often get a blank stare.

 

The One Leg Stand

 

Basically the cop says, “stand on one foot and count... ready, go!” Then the police officer stares at you watching for you to raise your hands for balance, sway, or put your foot down. It doesn't matter if you naturally don't have great balance, it doesn't matter if it's 3:00 AM in the morning and you're exhausted. Any mistakes are proof that you're probably drunk. Confirmation bias​ is a very real thing, but unfortunately it isn't something they focus on in police school.

You Are Not Required To Do The Field Tests

 

Let us make something very clear: ​you do not have to do the field sobriety tests​. Say what? Then why does everyone do them? We’re not sure. Maybe they don’t know their legal rights, because they didn’t get this handy DUI guide.

If you’re stopped by the police you must give basic identifying information and, if they ask, you have to step out of the vehicle for

officer safety purposes. ​That’s it.​ You don’t have to answer questions without an attorney present, and you can decline to do sobriety tests.

A little free advice though: be as nice as possible to the police when asserting your rights. They have tough jobs as it is and being a jerk will get you nowhere. Plus, the word "belligerent" is not your friend in a court of law. Our advice is to politely decline to take the tests and tell the officer that you want to have an attorney present for any questioning or tests. If you’ve truly had nothing or very little to drink, tell the officer that you’re happy to comply with a preliminary breath test.

 

The bottom line is that if you opt to do the FSTs, you’re putting yourself at the mercy of an officer’s subjective perceptions.  And that officer has very likely already concluded that you're impaired before you've taken the first test. The reality is that all you're accomplishing is giving the officer ammunition for the future prosecution. 

5. Don’t Get Comfortable With the Officer

 

Be careful about everything you say and do when you’re pulled over.​ Savvy officers will chat you up in a very friendly and conversational manner. But while you're chumming it up, the officer will make a note of absolutely anything and everything you do to help build a case against you. For example:

● “SLIGHT SWAY WHILE STANDING!!”

Geez, everyone sways a bit when they stand. Imagine the perfectly symmetrical statue of a person you’d need to be to stand perfectly still without occasionally shifting your weight.

● "LEANED ON THE CAR FOR BALANCE!!"
What the hell? That means I’m drunk? It's not like you told me not

to lean on my car.


● “GLASSY, WATERY EYES!!”

Yes, eyeballs have a natural watery lube in them. They'd hurt otherwise.

● “SLURRED SPEECH”
Not sure how an officer who's never heard you speak knows how

you should sound.


● “BLOODSHOT EYES”

It’s 3:00 in the morning. I’m tired. I’m wearing contacts. I have allergies. Etc.

I’m sure you get the point. Everything is evidence in the eyes of the police. The more you interact with them by doing their tests, the more you help them build their case against you.

Final Thoughts

We’re sick of all the DUI marketing BS. Our firm lives by the rule of telling prospective clients the truth even when it means they will be less likely to hire us. Our motivation for writing this guide is to provide you the no-nonsense real truth about getting through a DUI.

 

We hope that this information was useful to you. Being charged with a DUI is incredibly stressful, but arming yourself with the knowledge here is one of the best things you can do.

We know you don’t want to fork over your hard earned money for a lawyer, but if you’ve been charged with a DUI, it’s an easy call. It’s truly an investment in your future, and well worth the cost of having the peace of mind that a professional is watching your back, and doing everything possible to achieve the best possible outcome for you.

If you’re charged in Virginia Beach or anywhere else in the Hampton Roads area, feel free to give us a call. We give free consultations, and we’re always 100% honest, even when it means that we end up turning away business.