DWI Lawyer Fairfax, VA

Guidance and Protection Through DUI Convictions in Virginia

In addition to being an experienced Fairfax, VA DWI lawyer, Dave Albo has also served in the Virginia House of Delegates for 24 years. The way that Virginia State laws are written is admittedly confusing. That is because they must be written in a manner so that no unintended interpretations will be made. However, it is possible to clarify the laws in specific ways, based on an individual’s unique circumstances. Below, you’ll discover a plain English explanation of what the state’s impaired driving laws might mean for you and your case. 

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.

The first thing that a Fairfax, VA DWI lawyer generally explains to a client is that in Virginia, DUI (Driving Under the Influence) and DWI (Driving While Intoxicated) are the same thing (per Virginia Code § 18.2-266). Some states, the District of Columbia, and the Federal Government treat these offenses as distinct infractions. However, in Virginia, the terms are used interchangeably. Therefore, when DWI Defense Strategy is discussed within these pages, the points discussed apply to DUI cases and vice versa. 

The Virginia Code for DWI and DUI is § 18.2-266. Per Virginia law, there are generally 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 or higher.

• 18.2-267 is the Code Section that addresses preliminary breath tests. A preliminary breath test helps the police know who is “intoxicated” and, therefore, who should be arrested. Before being arrested, a motorist can submit to a preliminary breath test if one is available but they can also refuse to participate in this kind of testing. If you have been subjected to a preliminary breath test, this test cannot be used against you at the trial for DUI, and your attorney should object of a prosecutor tries to use it to advance their case.  
• 18.2-268.2 discusses Implied Consent for Post-Arrest Testing. While a motorist is legally permitted to refuse a preliminary breath test without consequence, Virginia’s implied consent law prohibits the refusal of post-arrest testing. Anyone who violates this section of the state’s Code will be subject to automatic consequences as a result of their post-arrest refusal.

Fairfax DWI Infographic

You have probably heard about “Refusal.”

• 18.2-268.3 indicates that 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 convicted of Refusal within the past 10 years 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. The fact that you refused can also be used as evidence in your DUI trial. 

A breath alcohol test is another way to measure blood alcohol.

A 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 regarding its use. These regulations are intended to help assure fair tests. A good Fairfax, VA DWI lawyer will question whether a test administered to a client properly conformed to these regulations.

Virginia Code § 18.2-270 is the punishment section of the law.

The punishment for a DUI conviction depends upon whether the offense is a first, second, or subsequent offense. It also depends upon whether an individual’s 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 classified as 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 less 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. A skilled Fairfax, VA DWI lawyer should be able to explain the ways in which these punishments escalate in the event that someone has been convicted of subsequent DUIs under aggravated circumstances. For example, a person who has a second offense in less than 5 years and has a blood alcohol level at 0.21 or above would be sentenced to a minimum of 20 days for the subsequent offense + 20 days for the aggravated nature of the offense, for a total of 40 days minimum. For a third or subsequent conviction within 10 years, a charge is classified as a felony. Ultimately, a felony DUI carries a mandatory minimum penalty of six months in jail if the three convictions occurred within a 5-year period, and a mandatory minimum of 90 days in jail within a 10-year period. 

An experienced DWI lawyer should always explain that the mandatory minimum punishments set forth above are only minimums. Meaning, a judge could potentially increase an individual’s punishment beyond the minimum, provided that any sentence does not exceed any maximum clarified by law. In addition to jail sentences, a judge can also impose other penalties, such as a license suspension, alcohol education/treatment, and the installation of an ignition interlock device.

Virginia Code § 18.2-270.1 states that the court must require one convicted of DUI who is subjected to a restricted license to install an “ignition interlock” device on their car for no fewer than six months. 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 Fairfax DWI lawyer explains this loophole, in the event that you can potentially take advantage of it. 

A DWI lawyer 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.

A Fairfax DWI lawyer will be able to tell you what activities are allowed under a restricted license. While there are many, the most commonly requested permissions involve driving to and from work, during work, to and from ASAP and other programming required by probation, to and from medical appointments for yourself or children or an elderly parent under your care, to and from school or day care for your child, and to and from visitation of your child. Learn more about possible DWI defenses to better ensure that you’re not subjected to these restrictions as a result of your alleged wrongdoing.  

Finally, you will want to ask your attorney 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 at 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 the law 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. 

When Should I Visit a Lawyer?

If you are facing any kind of criminal charge, then now is the time to contact a lawyer. Do not try to represent yourself, as the everyday person just doesn’t have the legal knowledge and connections within the justice system to navigate their case as successfully as possible. Our lawyers understand the nuances of criminal defense law, and can protect your interests from the very start. Unfortunately, by waiting too long to hire a lawyer, you could unintentionally undermine the strength of your case. When it comes to DUI/DWI or other criminal charges, we urge you to get a lawyer’s representation immediately. You may think you don’t have the money to afford a lawyer, but many work on a contingency basis. We can discuss the financial aspect more with you during your consultation.

How Can I Protect My Best Interests?

One of the biggest mistakes people make is they try to explain their way out of an arrest. Once an officer decides that they are placing you under arrest, there’s almost nothing you can say that will change their mind. In fact, everything you say during your arrest may be used against you. You have the right to remain silent, so you should take advantage of that. Law enforcement may try to interrogate you during your booking, but this is not a conversation that is good for your best interest. Law enforcement often tries to get people accused of a crime to make statements that can be interpreted as guilt. Stay quiet, except for providing your name or other necessary identification information, and then ask for a lawyer. 

What Evidence May Be Used Against Me?

The evidence used against you will vary depending on your arrest and exactly what happened. The prosecution may use photographs, video footage, witness statements, expert testimony, and your own statements as evidence against you. You may think that as soon as you are placed in handcuffs that you are assumed guilty, but that is not the truth even if it feels that way. Remember, you are innocent until proven guilty in court. You have the option of seeking skilled legal guidance and mounting a strong defense strategy that may, indeed, prove successful. 

What Factors Does a Judge Consider When Sentencing?

If you have a criminal background or history of drinking-related offenses, that can affect the outcome of your case. Have you been convicted of a DUI/DWI charge in the past? Have you been charged with other crimes that are either non-violent or violent? When meeting with your lawyer, these are questions you must answer honestly. If we do not understand the scope of your history, we cannot devise a strategy that fully protects you. And most of the time, the truth comes out anyway, so your lawyer should be someone you are transparent with. After all, they are on your side and they are required to keep nearly all conversations with you confidential. 

Do I Have a Strong Case?

One of the primary benefits of connecting with a skilled Fairfax, VA DWI lawyer at the offices of Dave Albo – Attorney right away is that you won’t have to lay awake at night wondering about where you stand. After our team evaluates your circumstances, we’ll be straight with you about both the potential strengths and weaknesses of your legal position. That way, you’ll be able to make informed decisions about your options instead of wondering “What if?” for better and for worse, over and over again. 

Shouldn’t I Just Plead Guilty?

As our Fairfax DWI lawyer team can attest, it can be very tempting for individuals in your position to plead guilty, especially because film and television scenarios would have you believe that in doing so, you’re guaranteeing yourself greater judicial leniency. However, this is a common misconception that needs to be clarified before you commit to any particular way forward. There are times when pleading guilty is the best strategy for a defendant, but this is rarely the case. Before you enter a plea, discuss your situation with the Dave Albo – Attorney team so that we can help you to make whatever decision is truly in your best interests. 

Is It True That I Should Stay Off of Social Media?

Yes. Social media platforms – unlike email accounts and the texts on your phone – are public by nature. Prosecutors don’t have to get a warrant to scroll your social media accounts and activity because they are public. As a result, they’re easy targets for evidence gathering. Because even the most seemingly-innocent post could be misinterpreted or twisted and used against you, it’s best if you stay off of social media until your legal situation has concluded. If you can’t stay off of social media entirely, act as if you’re being watched… because you probably are. 

Could My Situation Impact My Child Custody Arrangement?

Some areas of law are – often, frustratingly – interconnected. While there is nothing in the law that explicitly ties criminal defense law and family law, there’s no question that a DUI or DWI conviction – especially if your child was in the car with you at the time of your alleged impaired driving – could impact your child custody situation. This is just one of the many realities that makes it so important to be proactive in mounting a strong defense to the charges you’re facing. 

Can I Represent Myself in Court?

Statistically speaking, you’re very unlikely to be successful if you opt to represent yourself in criminal court. While you theoretically have the right to represent yourself, the Supreme Court itself acknowledged in Gideon v. Wainwright that “Lawyers in criminal courts are necessities, not luxuries.” This is because the criminal legal system was not built with self-represented defendants in mind. To better ensure a favorable outcome to your impaired driving charges, it’s important to connect with a skilled and respected Fairfax DWI lawyer as soon as you can, accordingly. 

Choose an Attorney with Criminal Defense Experience

When it comes to your rights, choosing a DWI lawyer to represent you could make the difference between jail time or a dismissal. Do not jeopardize your life by hiring a lawyer who is not familiar with criminal defense charges. Here at Dave Albo – Attorney, we have more than two decades of experience representing the interests of people with very similar cases to yours. You can trust we have only your best of intentions at heart and that we know how to get results.

We Will Protect Your Rights

The Fairfax, VA DWI lawyer team at Dave Albo – Attorney, aims to alleviate (or, at least, minimize) the hardships that come along with going through a criminal defense trial. Whether this is your first offense or a felony DUI charge, you can rest more easily knowing that we’ll be working relentlessly to prove your innocence. 

It is key that you take your situation seriously and hire a Fairfax DWI lawyer who has experience in this area of the law because the stakes of your situation are so high. Combatting the legal system alone with a case like this could result in unnecessary penalties and suffering. Your life could change forever for the worse. We will work to keep your life in order and to inspire it for the better. By contacting a skilled Fairfax, VA DWI lawyer at Dave Albo – Attorney on the day of your arrest, you’ll allow us to start protecting your rights from the very beginning. 

Contact Dave Albo – Attorney When You Need a DWI Lawyer in Fairfax, VA

By calling us today, we can get you scheduled for a consultation with an attorney who is passionate about protecting the rights of our clients. Your first consultation is free. Do not wait until the last minute to seek a criminal defense lawyer. Give us a call today at Dave Albo – Attorney to reach a Fairfax, VA DWI lawyer who can review the many details of your case and start safeguarding your rights and interests immediately. We look forward to speaking with you.