The Initial Stop
A DWI arrest typically begins in one of three situations: (1) a police officer pulls a vehicle over because of some perceived violation of law, (2) a police officer arrives at the scene of a motor vehicle accident or (3) a vehicle comes upon a police roadblock (also called a “sobriety checkpoint”). Each of these situations presents its own set of factual and legal issues.
In order for a police officer to pull you over in the state of Virginia, the officer must have “reasonable, articulable suspicion” that you have broken a traffic law or probable cause that you have committed some other crime. Certain driving behaviors, like weaving in and out of traffic, driving too slowly, crossing the center line or driving below the speed limit, may give the officer cause to believe you are driving intoxicated. Of course, when a traffic stop is challenged in court, the personal, subjective opinion of the officer is not the proper inquiry; instead, the judge should consider whether this Fourth Amendment seizure of you is objectively reasonable, and not just based on the officer’s hunch.
Once you have been pulled over on suspicion of a DUI, the officer will make observations about your physical appearance, including whether you have blood shot eyes, smell of alcohol and/or are slurring your speech. The officer may also ask you to perform field sobriety tests, like saying a portion of the alphabet, walking back and forth in a straight line or following the officer's finger with your eyes. Virginia law does not directly require or limit which tests are used, but judges may give certain tests more weight (if administered properly) based on federal studies, or may not allow one to be used without a proper foundation under the rules of evidence. You, however, are under no legal obligation to perform these tests and have the right to refuse to do them. This issue is not as clear as it once was because in 2009, the Virginia Court of Appeals held that a judge may take into account the fact that a DWI suspect declined to perform field tests (on the theory that the suspect was concerned he may fail the tests due to intoxication). Though that case involved a defendant who had a previous DWI arrest, it shows that DWI law is complicated, constantly evolving and may at times defy common sense.
Blood Alcohol Testing
In a typical DWI investigation, after field sobriety tests are performed but before you are arrested, the officer may ask you to perform a preliminary breath test (PBT) by using a portable breathalyzer the officer may have in his or her vehicle. The results of this test cannot be used against you to prove guilt in your DUI case, but they may be used to prove that the officer had probable cause to arrest you for a DUI. Virginia law allows you to refuse this roadside preliminary breath test, and doing so could weaken the officer’s overall basis to arrest you. Some officers will suggest that you will be allowed to drive home if this roadside test shows low enough breath alcohol concentration (“BAC”), but keep in mind that the officer may have already decided to arrest you and is just looking for a final piece of evidence to justify this decision.
In most cases, the main breathalyzer test will be performed either at the police station or the jail. The person administering the test must be a licensed breath test operator, and Virginia law allows the breath technician to be the arresting officer (provided he or she is a licensed operator). Also, specific procedures most be followed in administering the test, such as having a twenty-minute observation period during which time the test subject is not supposed to burp, belch, hiccup, etc... Also, the tech is required to physically check the inside of the suspect’s mouth prior to the breath test.
In some cases, you may be asked to take a blood test rather than a breath test. Under Virginia law, a blood test may be administered in three circumstances:
- If you are physically unable to perform the breathalyzer
- If a breath test is unavailable
- If the officer has probable cause to believe you are under the influence of drugs (whether illegal, prescription, or even over-the-counter).
Implied Consent
Under Virginia's implied consent law, you do not have the right to unreasonably refuse to submit to a breath or blood test to determine the amount of alcohol or illegal drugs in your system. What’s the reasoning behind this law? By driving or operating a motor vehicle on a public roadway in the Commonwealth of Virginia, you have (implicitly) given consent to the state to perform either of these tests incident to a valid arrest for DUI. So, can you still refuse? Technically yes, but if you are obligated to take the test, and you unreasonably refuse, you will be charged with a separate offense (known as “Refusal”) and face additional penalties, including a mandatory license suspension, and in some cases, jail time and fines.
Under Virginia law, it is not considered reasonable to refuse to consent to the test because your attorney told you not to or because you have requested that your lawyer be present while you take the test. Indeed, it seems that few Refusal cases are dismissed on the issue of “reasonableness”. Rather, defense attorneys who succeed in these cases often do so by arguing that Implied Consent law did not actually apply (perhaps because the vehicle was not on a public road, or because the officer unlawfully arrested the driver), or by arguing that the wrong test was given. The police officer is required by law to read you a list of the consequences of refusing a reasonable blood alcohol test before asking for your consent. Under Virginia law, the first refusal is treated as a civil offense and results in a 12 month license suspension.
However, subsequent refusals are treated as criminal offenses with much harsher penalties. For example, a second refusal that occurs within 10 years of a prior refusal or DUI conviction results in a three year license suspension, up to six months in jail and up to a $1000 fine. These penalties are in addition to any you receive from a DUI conviction. Also, there is no opportunity to receive a restricted driver's license if you are convicted of having refused a breath or blood test.
Challenging the Test Results
Let’s assume you did not refuse, and there is a test result that the prosecutor is eager to use against you. If you have taken a breath or blood test and the results show that you had over the legal limit of alcohol in your system, this does not automatically mean you are guilty of committing a DUI. The machines and procedures used to conduct these tests are not fool-proof and there can be multiple reasons for a false-positive result, including:
- Human error in conducting or interpreting the results of the test
- Poor/inadequate training of the testing operators
- Faulty machine readings, including false positives from radio frequency interference
- Individual factors of the accused, including weight, height, age, gender, diet, drinking habits
- Medical or other health issues of the accused, like acid reflux disease
- Medications taken by the accused
To be clear, DWI law is usually drafted to favor the government, and such statutes and regulations will try to thwart these arguments against the breath machine or its results. However, a skilled and experienced DWI attorney will work to find the best way to use whatever arguments you may have in a court of law.
Additionally, the police are required to follow specific procedures in conducting the tests and in collecting and storing blood samples. The testing equipment also must meet certain standards. For example, the breathalyzers must be calibrated and tested during regular intervals. They also must be certified by the Department of Forensic Science of Virginia and their operators must hold valid operator licenses obtained within the last two years. If these and other conditions are not met, then the results of breathalyzers and other chemical tests may be inadmissible.
How a Lawyer Can Help You
An attorney experienced in handling DUI cases can help you challenge not only the breath or blood test results, but also the other evidence the police will try to use against you. For example, a knowledgeable lawyer may also challenge:
- The reasons for your initial stop - did the officer have probable cause?
- The results of any field sobriety tests - are there factors that make these results unreliable?
- The accuracy of the conclusions drawn by the officer based on your appearance
Remember - just because you have been charged with drunk driving does not mean you are guilty of the crime. DUI punishments in Virginia for even a first time drunk driving offense are serious and include the loss of your driver's license, possible jail time, an alcohol program and large fines. With the help of an experienced DUI attorney, you may be able to have the charges against you reduced or dismissed altogether. You should never plead guilty to a DUI offense without first speaking with an attorney.
