Dave Albo served as a Member of the Virginia House of Delegates from 1994-2017, and served as Chairman of the House Courts of Justice Committee from 2005-2017. This is the committee that writes all of Virginia’s criminal laws
If you are reading this, you, a friend or loved one is probably facing the Class 1 Misdemeanor known as Driving Under the Influence (DUI) / Driving While Intoxicated (DWI). By clicking on the above DUI/DWI icon, you will receive more detailed information regarding your situation. In this introductory article, I thought you would like some general information on how Virginia’s DUI/DWI law and process works, and what makes Virginia’s laws and procedures different.
I have a lot to offer you in this article. That is because for over two decades I wrote or co-wrote all the DUI/DWI laws for Virginia. And, for over a decade, I was the Chairman of the Committee responsible for writing these laws that you, your friend, or loved one face. There is no one in Virginia who can better understand the pending against you than me.
First, unlike many other states, in Virginia DUI and DWI are the same thing. For example, some state laws make DUI for anything under a blood alcohol level of .08, and DWI for anything over .08. In Virginia, we don’t have a law that says that anything below a .08 is a lesser offense (Note: There is an exception. If a person is under 21 years old, they can be found guilty of a lesser offense of driving after illegally consuming alcohol if their blood alcohol level was over .02)
The best way for me to explain DUI/DWI (from now on, let’s just refer to it as DUI), is for me to explain its history. In 1876, Carl Benz (of Mercedes Benz) filed his patent for his “vehicle powered by gas engine.” People loved it and started buying them. Then, people started consuming alcohol and driving, which caused them to get into accidents. So the legislature passed a law that said: It is illegal to drive while intoxicated. Note that there are only two elements of the offense:
(1) Was the person driving, and
(2) Was the person intoxicated.
In America, a Prosecutor must prove each element beyond a reasonable doubt. Usually, it is easy to prove a Defendant was driving. If the Defendant was caught behind the wheel, then he was obviously driving. So, the whole case was usually all about whether the Prosecutor could prove intoxication. Back in the 1900’s, Prosecutors had no scientific evidence, so unless the Defendant was obviously “drunk”, they could not prove it. So, in the 1920’s the government commissioned a famous study where a group of scientists tested the level of alcohol in people’s blood and determined how much alcohol would make a person intoxicated. By the 1980s, it was 0.12 (when I was in High School). In other words, the law stated that anyone whose blood alcohol level is above a .12 is presumed intoxicated. And, if a Defendant is “presumed” to be intoxicated, then game over – he will be found guilty. Over time, the level was dropped from 0.12, to 0.10 (when I was a young prosecutor), to .08 in about 1995 (when I was in the legislature — the Federal Government threatened to take away our Federal transportation funding if we did not lower the presumptive intoxication limit to 0.08.)
(Note: Back in the 1920’s all that was available was a blood test. Now, the state also uses a breath test. Think of these things as just two different systems to measure the same thing – blood alcohol level. Just like a Celsius thermometer and a Fahrenheit thermometer. They both can tell you what the freezing point of water is. One says 0 degrees Celsius and the other says 32 degrees Fahrenheit).
So, today, if one is arrested for DUI and tests at 0.08 blood alcohol level or above, one is “presumed” to be intoxicated. (The actual standard, to comply with a US Supreme Court decision is “permissible inference of intoxication.” But the bottom line is that if the blood alcohol test comes into evidence and it is above a .08, generally speaking, it is “game over” and the Defendant will be convicted.) The main reason Defendants need a lawyer is to make every effort to make sure that this blood alcohol test is not admitted into evidence. If it is not admitted, then the Prosecutor is back where he would be in the 1900’s and having to prove guilt beyond a reasonable doubt without scientific evidence – and just like in 1900, it is extremely hard for a Prosecutor to win without scientific evidence.
Below are my answers to the most common question I get: Why hire a DUI lawyer?
Why hire a DUI lawyer?
Everyone uses a DUI lawyer to represent him or her in a DUI or DWI case. (Note: In Virginia, a DUI and DWI are the same thing.) It is a Class 1 Misdemeanor crime – a very serious charge. The maximum penalty is up to one year in jail, up to $2,500 in fines, and (at least) 12 months of a license suspension. This is the same level crime as a Shoplifting and Assault & Battery.
Few people get the maximum charge. However, experienced and honest DUI lawyers will tell you that the following punishments are quite common for a first offense:
- Jail: Jail is rare in most first offense, low blood alcohol level cases, with no accidents. If one’s alcohol level is over 0.15, jail is mandatory (even for first offenses).
- License Suspension: The mandatory suspension is 1 year. Ask your DUI lawyer to file a motion with the court granting permission to drive to and from work, school and some other categories (Judges have discretion to permit this);
- Ignition Interlock: Everyone convicted of DUI must install an ignition interlock machine in their car. This is a breath test device installed on the car. (There is a “loophole” in this law for first offenders who don’t move the court for a restricted license);
- Fines: Usually net fines are $250 to $500;
- Demerit Points: 6 DMV demerit points are assigned to DUI convictions; and
- Insurance: While it is not a legal issue for your DUI lawyer, you should check with your insurance company for how much your rates will increase. One is required to get “high risk” insurance.
As one can see, the punishments are stiff. So, what can a DUI lawyer do for you?
Your experienced DUI lawyer will have a first goal — to win your case. In America, the government must prove a criminal case “beyond a reasonable doubt.” That means that a DUI lawyer does not have to “prove” anything. The government must prove the case. But a good DUI lawyer doesn’t just sit and do nothing. In addition to making the government prove it, an experienced DUI lawyer will investigate many paths of defense. To name a few:
(1) Were you lawfully seized? Did the Police have a lawful reason or ordering you to pull over? A DUI lawyer will want to make sure that the Police can articulate a lawful reason why you were pulled over. As an example, our firm has won cases where the Police stated, “The Defendant was swerving within his lane.” However, the lane is designed to allow you to use the entire lane. Swerving outside the lane is illegal, but maintaining a path within the lane is legal unless the drifting within the lane is excessive.
(2) Were you lawfully arrested? A DUI lawyer will want to make sure there was Probable Cause (or a Warrant) supporting your arrest. The Constitution states that the government must show there is a reasonable reason to believe you may have been intoxicated. It is not illegal to consume alcohol and drive. It is only illegal to be intoxicated. The government must show some evidence of intoxication, or the DUI lawyer will get the case dismissed for an illegal arrest. Recently we won a case because, even though our client had a very high alcohol level of 0.17, he was talking normally without a slur, had good balance, and did not perform any coordination tests (commonly called “Field Sobriety Tests”). There was simply no lawful reason or him to have been arrested.
(3) Was the breath or blood test accurate? For breath test cases, your DUI lawyer will want to consult the Division of Forensic Science records to see if the breath test machine used on you was properly certified, reading accurately and operating properly. An experienced DUI lawyer will obtain the test and certification records from the Diving of Forensic Science on all cases. While it is not common for a machine to malfunction, it does happen. Recently, we found hand written notes on the certification papers, “Out of Tolerance.” Obviously, if it is out of tolerance, it is not reliable, and if it is not reliable, it is not admissible in Court. As for Blood Tests, the Virginia Code gives an extremely detailed list of requirements for accuracy. For example, the arm must be cleansed with non-alcohol sterilizers, the vials must be labeled in a certain way and mailed in a certain way, and you have the ability to get your own independent analysis done.
(4) Are there any other defects in the case? At your trial, an experienced DUI lawyer will be able to recognize holes in the Prosecutor’s case. For example, did the Prosecutor prove you were actually driving? If the Police came to the scene of an accident, and he did not actually see you driving, can he prove you were actually driving? Or, if multiple Police Officers were working the case, can the arresting Officer show that he observed you the entire time and did not see you consume any alcohol after driving. Remember the charge is Operating Under the Influence – not being under the influence after one stops operating a car.
The bottom line is that a top DUI lawyer is necessary for your best chance to win your case or fight for lower punishments. We would be honored to be your attorney. We charge a fair fee for the work we do because we undertake a great amount of legal work prior to court so that we know the possible defenses available to our clients. Then, when in court, our attorneys generally handle only one serious case a day. That way you get individual attention.
In addition, few other firms feature attorneys who:
- Are Former prosecutors,
- Teach criminal law to other lawyers,
- Teach judges about legal updates to the law,
- Speak often on national networks such as Fox News, CNN, MSNBC, and NBC’s “Today Show”;
- Are regularly featured in the media as “Top Lawyers” (such as by the Washingtonian and Northern Virginia magazines), and
- Have had their legal defenses reported state-wide to other attorneys in the Virginia Lawyers Weekly.