A DWI lawyer Fairfax, Va and State Legislator on Virginia’s DWI law in plain English!
In addition to being an experienced DWI lawyer Fairfax, Va, Dave Albo has also served in the Virginia House of Delegates for 24 years. The way the laws are written is admittedly confusing. That is because they must be written in a manner so that no unintended interpretations will be made. But here is what Mr. Albo believes was meant to be stated in “plain English”.
Note: Our lawyers practice in Fairfax, and all other counties of Virginia. We have offices in Fairfax, Arlington, and Staunton. We reference Fairfax, Va. in this article because it is the largest jurisdiction in Virginia with the most rigid procedures. Work done to Fairfax standards meets or exceeds the standards in every other jurisdiction in the Commonwealth, so it is common to use it as a benchmark.
First thing a DWI lawyer Fairfax, Va should explain to a client is that in Virginia DUI (Driving Under the Influence) and DWI (Driving While Intoxicated) are the same thing. Some states, the District of Columbia, and the Federal Government have separate statutes. Generally, in those states, DUI is driving in a manner that is unsafe due to intoxication. On DUI in these states, “intoxication” is generally proven by the defendant’s demeanor, speech, coordination and driving behavior. On top of DUI, these states also have a separate DWI statute, which is driving a blood alcohol level of 0.08 or more. This is proven by a blood or breath test. If one tests at 0.08 or more, the person is automatically guilty of DWI in those states. As you will see below, in Virginia, the legislature put both into one Code section, Virginia Code § 18.2-266.
The Virginia Code for DWI and DUI is § 18.2-266. An experienced DWI lawyer Fairfax, Va should be able to explain this in simple English. There are five ways to violate Virginia’s DUI law — (1) operating a vehicle with a blood alcohol level above 0.08, (2) operating a vehicle while “under the influence” of alcohol; (3) operating a vehicle while “under the influence” of drugs; (4) operating a vehicle while “under the influence of both alcohol and drugs; and (5) operating a vehicle with a blood cocaine level of 0.02, a blood methamphetamine (“speed,” “meth,” “ice”) level of 0.10, a blood phencyclidine (“PCP,” “angel dust”) level of 0.01, or a blood 3,4-methylenedioxymethamphetamine (“MDMA,” “ecstasy”) level of 0.10.
- 18.2-267 is the Code Section dealing with the Preliminary Breath Test. This test is used by Prosecutors at trial to justify why the accused should have been arrested in the first place. Remember, it is not illegal to consume alcohol and drive. It is only illegal to be intoxicated. This Preliminary Breath Test helps the police know who is “intoxicated” and, therefore, who should be arrested. Before being arrested, an accused can submit to a preliminary breath test if one is available. This test cannot be used against you at the trial for DUI, and your DWI lawyer Fairfax, Vashould object of a prosecutor tries to use it, but it can be used against you during pretrial motions and other non-DUI charges. There is no penalty for refusing this preliminary breath test and the arresting officer must advise you of this.
- 18.2-268.2 discusses the “Three Hour Rule.” This often creates loopholes for a DWI lawyer Fairfax, Vato argue in accident cases. In such a case, the Police arrive after the driving has occurred. So, the Police may not know when the actual driving occurred. If the Prosecutor cannot prove that the arrest occurred within three hours of the alleged drunk driving, the breath or blood test could be stricken from evidence.
You have probably heard about “Refusal.” § 18.2-268.3 is the Code section that causes many clients to agree to take the Blood or Breath test. In plain English from a DWI lawyer Fairfax, Va: If you unreasonably refuse to take the official breath or blood test (usually given at the police station or hospital after arrest), you will lose your license on a civil basis. If you have been previously convicted of Refusal and refuse for a second time, it is criminal offense (up to six months in jail) and you will lose your license for three years. If you refuse a third time, it is a more serious criminal offense (up to one year in jail) and you will lose your license for three years. The fact that you refused can also be used as evidence in the DUI trial. A recent United States Supreme Court case states that for the criminal charges, the Police must get a search warrant to force someone to take a blood test.
The breath alcohol test is another way to measure blood alcohol. The breath alcohol machine basically calculates that a person with X molecules of alcohol in his breath has Y% of alcohol in his blood. Since the breath test is not a direct measure of blood alcohol, Virginia Code § 18.2-268.9 sets forth very specific laws and regulations. These regulations are intended to help assure fair tests. A good DWI lawyer Fairfax, Va will attack the test to show how it may not have properly conformed to these regulations.
One of the hardest things for a DWI lawyer Fairfax, Va to explain is all the possible punishments for DWI/DUI cases. Virginia Code § 18.2-270 is the punishment section of the law. The punishment for DUI depends upon whether the offense is a first, second, or subsequent offense. It also depends upon whether the blood alcohol level exceeded certain amounts or upon whether a child was in the car at the time of the arrest. A DUI conviction can be either a misdemeanor or a felony. For a first offense, where one has a blood alcohol level below 0.15, and their driving behavior did not endanger anyone, jail would be unusual. However, there is a mandatory 5-day jail sentence for having a blood alcohol level of 0.15 or above, and a mandatory 10 day jail sentence for having a blood alcohol level of 0.21 or above. Second and subsequent offenses have increased mandatory minimum penalties. A second offense within lest than 5 years results in a mandatory 20 days in jail upon conviction. A second offense within 5-10 years results in a mandatory minimum jail sentence of 10 days upon conviction. Things get even worse if one has multiple DWI charges AND a high blood alcohol. For these, the blood alcohol level of 0.15-0.20 results in a mandatory 10 days, and a blood alcohol level of 0.21 or more results in 20 days upon conviction. A DWI lawyer Fairfax, Va should be able to explain that these punishments are cumulative. So, a person who has a second offense in less than 5 years and has a blood alcohol level at 0.21 or above would get 20 days + 20 days, for a total of 40 days. For a third or subsequent conviction within 10 years, the charge is a Felony. Ultimately, a felony DUI carries a mandatory minimum penalty of six months in jail.
A good DWI lawyer Fairfax, Vas should always explain that the mandatory minimum punishments set forth above are the actual minimums. Meaning that the Judge could increase the punishment. The maximum penalty for a misdemeanor DUI is one year in jail; the maximum for a felony DUI is 5 years in prison. (In addition to jail, there are other penalties, such as a license suspension, alcohol education/treatment, and an ignition interlock device).
New to the law, and for a DWI lawyer Fairfax, Va to deal with, is the technology known as ignition interlock. Virginia Code § 18.2-270.1 states that the court must require one convicted of DUI to install an “ignition interlock” device on their car. This is a breath test device that one must blow into to start the car; and to blow into when directed to do so by the device while driving. There is a loophole in this law only available for first offenders with blood alcohol levels below 0.15. Make sure your DWI lawyer Fairfax, Va knows this “loophole” for people who do not want a interlock.
A DWI lawyer Fairfax, Va also must deal with a very confusing set of rules about where a person may drive if he gets convicted of DWI and has a restricted license. Virginia Code § 18.2-271.1, in plain English, states that if convicted of DUI, one will lose his or her driving privileges in Virginia for one year. A second conviction will result in a three-year loss of license. A third conviction will result in an indefinite loss. (This means one loses his license forever, but can petition the Court for a restricted license after 3 years and for a full restoration after at least 5 years). A DWI lawyer Fairfax, Va will be able to tell you what activities are allowed under a restricted license. While there are many, the most commonly requested permissions are driving to and from work, during work, to and from ASAP and other things required by Probation, to and from Medical appointments for yourself or children or ab elderly parent under your care, to and from school or day care for your child, and to and from visitation of your child.
Finally, you will want to ask your DWI lawyer Fairfax, Va about the Alcohol Safety Action Program (ASAP). Virginia Code § 18.2-271.1 states that those convicted of DUI must enter and complete an alcohol education program administered by the state. For most people this will be a 12-15 week course taught one day a week for up to two hours per session. Also, attendance to some AA meetings is usually required.
It is important is to know that the above explanation is just a summary. For the full text of the law, you can log onto the Virginia Code and read these for yourself. If you click here, you will be directed to the first statute, Virginia Code §18.2-266 and you can read each section until the end, which is Virginia Code §18.2-273 Also, there are relevant sections in other areas of the Code, such as Title 46.2 which talks about how the effects of DUI on one’s license. A DWI lawyer Fairfax, Va will also have to consult the regulations dealing with how blood and breath tests are administered. Click here for a link to the Virginia Division of Forensic Science Breath Alcohol Division.