What things should your attorney do to prepare for your DUI Trial?

What things should your attorney do to prepare for your DUI Trial?

What things should your attorney do to prepare for your DUI Trial?

DUI Attorney Fairfax VA

If you have been charged with DUI in any Northern Virginia Court, the preparation required by your attorney to put on a zealous defense of your case is nearly identical for every jurisdiction, except for some procedural differences required by the different courts and Prosecutor’s offices.  This answer is directed at what a good DUI Attorney Fairfax VA will do to prepare for your case in the Fairfax County General District Court. Other articles will address Alexandria City Court, Arlington County Court, and Prince William County Court.

The proper preparation that any experienced DUI Lawyer will do is the following:

  • Talk to you on the phone when you initially call.  The attorney is usually seeing if he would be able to assist you, and you should be “feeling the attorney out” to see if you want to invest time to go meet with him in person.
  • The initial consultation.  Expect this to take 90+ minutes.  This is a very important meeting because at this meeting, the attorney will likely be able to identify your best defenses.  So, make sure you tell him everything and be honest! Remember, you have an attorney-client relationship, so your attorney – even if you don’t hire him – can’t tell anyone what you said.  At this meeting the attorney will ask, among other things, about:
    1. What and when you ate
    2. What you drank (alcohol).
    3. When you had your first, second, third, etc. drinks.
    4. What kind of drinks were they?  (What type of alcohol content on the beer, wine, or mixed drink).
    5. When you left to drive home or to your next destination.
    6. What you were doing when the Police first noticed you.
    7. EXACTLY what the Police asked you.
    8. EXACTLY what you said to the Police.
    9. Any details about your driving behavior.
    10. The coordination tests (aka Field Sobriety Tests) you were asked to perform.
    11. How you think you did on these tests, in detail.
    12. The Results of any Preliminary Breath Test.
    13. Any statements Police made to you when arresting.
    14. Any statements Police made to you when transporting you to the Police Station.
    15. Any statement Police made to you when you were at the station.
    16. What do you remember about the process of taking the official breath test at the station or any blood test.

If you retain this DUI Lawyer, the DUI Attorney Fairfax VA will go to the Court and file a “Notice of Appearance” which makes him your official attorney of record.  He will also likely file an objection to the Certificate of Analysis. This will make the certificate not automatically admissible in your case. In many jurisdictions, attorneys file Discovery Motions.  In Virginia, the Prosecutor is only entitled to give you statements that you made and any evidence showing possible innocence. In Fairfax, the Prosecutors give all of this without filing of a motion. They do this at your first Court date.  This is called the Discovery Day. At that date, you will have to go to court, but you won’t be doing much. Your attorney will wait in line to speak with the Prosecutor. The Prosecutors usually just give the attorney a copy of the Police Officer’s report, which will contain, among other things, all statements you made, the Police Officer’s recollection of your driving behavior, your appearance and demeanor, and results of your Field Sobriety Tests.  Most importantly, if a video exists, the Prosecutor will have this video to your DUI Attorney Fairfax VA, and you and your attorney will then go before the Judge and select your trial date.

After your Discovery Day, your attorney goes to work!  After viewing the video, your DUI Lawyer will know if there is a defense based upon an improper stop or based upon lack of Probable Cause.  On this web site there is lots of information on these two defenses. In short, if you did not violate any traffic law and were pulled over, then you were stopped without “reasonable articulable suspicion.”  This is against the Constitution, and if this is shown at trial, the Judge should dismiss the case based upon an improper stop. If you passed all your Field Sobriety Tests, then you may have been arrested without Probable Cause.  It is not illegal to consume alcohol and drive. It is only illegal to be intoxicated. Thus, if you passed all your tests, then there is an argument that you were arrested without a reason to believe you broke the law. Again, if this is shown, the Judge should dismiss the case for lack of Probable Cause.

If the video shows that you did break some traffic law and therefore, the stop was justified, and if you did not pass all the coordination tests, then your lawyer will look at technical defenses.  An experienced DUI Attorney Fairfax VA will know how to obtain all the records of the breathalyzer. (Note: When I served in the Virginia House of Delegates, I was able to get the Division of Forensic Science to post these on the internet.)  Your DUI Lawyer will be looking for things like: Was the machine properly serviced? What the machine reading high? Was the person who gave the test properly licensed? Etc. Etc.

If your Blood Alcohol level was close to the legal limit of .08, your attorney should have a Forensic Toxicologist review the amount of alcohol you consumed and the timing of the consumption. Based on your weight and what you had to eat, the Forensic Toxicologist will be able to calculate what your actual blood alcohol level was at the time you were driving.  Remember, it is driving WHILE intoxicated. Not driving and being intoxicated two hours later at the Police station. To illustrate this defense, here is a typical example. A person is drinking about one beer an hour for four hours and then drives home. His body processes alcohol at a rate of one beer an hour. So, if he pulls out of the parking lot of the restaurant and is pulled over, he would test at a BAC of 0.00.  But if he was drinking one beer and hour and did four shots just before driving home and was pulled over as he left the parking lot, then by the time he takes the breath test at the police station 90 minutes later, he tests at a .09 because the alcohol from the shots got from his stomach into his blood. A good DUI Attorney Fairfax VA would know to hire a forensic toxicologist as an expert. This expert could explain to the Judge that when the Defendant was driving, the alcohol was just sitting in his stomach and had not been processed by the body. So, while his blood alcohol was .09 90 minutes later, at the time of driving, it was a 0.00.

There are many other defenses a DUI Lawyer will look at.  For example, in an accident case, can the Police prove that the Defendant was actually driving.  What if he was standing outside of the car when the Police come and he never admits to driving? In this same situation, can the Prosecutor prove that the Defendant was intoxicated while he was driving?  What if he got out of the car and chugged alcohol? The Prosecutor has the burden of proof, so the Prosecutor must prove the Defendant had nothing to drink. The list goes on and on. Suffice it to say, to be sure that all your defenses are analyzed, hire a DUI Attorney Fairfax VA.  



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