DUI DEFENSE

What to look for in a DUI lawyer

The internet is packed with lawyers sporting 5-star reviews and glossy websites. How do you cut through the marketing to help you select the best DUI lawyer for your case?

1. Prioritize expertise and experience. DUI Law is a very specialized subset of criminal law-making expertise and experience highly valuable. Tom Carter has had over 2,000 DUI cases so far in his career. Early on, he clerked for the Fairfax County Circuit Court, then was a prosecutor in Alexandria (teaching police officers DUI law during those years), then went into private practice concentrating in DUI defense (meanwhile teaching Continuing Legal Education classes in DUI law to lawyers).

2. Select a “Lawyer’s Lawyer.” If a lawyer is charged with a DUI, who would they hire for the best possible defense? They look for someone like Tom Carter, with deep expertise and experience in DUI defense. Approximately 50% of Tom Carter’s cases are referrals from other lawyers.

3. Trust independent reviews. Lawyer reviews like AVVO and SuperLawyers have earned a reputation of independence and accuracy.

Virginia’s DUI Statute

The acronym DUI stands for driving under the influence. The term, DWI (Driving While Intoxicated), is often used in Virginia in error but it’s the same offense as DUI. VA Code §18.2-266 is Virginia’s DUI statute. It provides prosecutors several ways to obtain a DUI conviction. These are:

1. Driving while having a blood or breath alcohol content of .08 percent or more.
2. Driving while under the influence of alcohol.
3. Driving while under the influence of any drug that impairs one’s driving.
4. Driving while under the influence of any combination of drugs and alcohol.
5. Driving while having a blood concentration of certain drugs at or above stated levels.

DUI arrests must be supported by Probable Cause to arrest. This means that the police officer must have enough information in hand to establish that the suspect more probably than not was under the influence. This is accomplished by the officer’s careful observation of the suspect’s driving behavior, physical coordination, and mental acuity. Additionally, formal Field Sobriety Testing occurs in almost every case. Likewise, a Preliminary Breath Test on the street is involved in almost every case. If the officer believes he or she has seen enough to justify an arrest . . . on go the handcuffs. Next stop . . . the Police Station.

Implied Consent to Blood and Breath Tests

Holding a driver’s license in Virginia is a privilege. As part of this privilege, all drivers on Virginia’s highways give their implied consent to submit to post-arrest testing to determine their blood or breath alcohol content. VA Code §18.2-268.2, requires all drivers to provide samples if the DUI arrest occurs within three hours of the defendant’s last driving or operating the vehicle.

An officer making an arrest upon suspicion of DUI due to alcohol can require a driver to submit to a breath test. It is only if a breath test is unavailable that a driver is required to submit to a blood test. An officer can require a driver to submit to a blood test if the arrest is based on suspicion of DUI due to drugs.

While the law requires that all drivers submit to these tests upon officer request, the decision about whether to do so may prove significant. Prosecutors have a more difficult time proving DUI without this scientific evidence. However, defendants should be aware that a refusal to submit to a test can have consequences.

VA Code §18.2-268.3 provides that a first offense refusal to submit to a requested breath or blood test is a civil offense. A conviction of first offense refusal results in a suspension of one’s driving privileges for one year. Subsequent offense refusal convictions are criminal offenses with longer periods of license suspension. In all, the decision to refuse a blood or breath test carries strategic implications with a high risk/reward factor.

Criminal Penalties for a DUI Conviction

The penalties for a DUI conviction cover a broad range. First Offense DUI is a Class 1 misdemeanor. This means that the court may sentence a defendant to a jail sentence of up to 12 months and a fine of up to $2,500. However, this penalty only applies to a first offense without any aggravating factors. 

Perhaps the most common aggravating factor in a DUI case is an enhanced state of intoxication. If a blood or breath alcohol reading indicates an alcohol level of between .15 and .20 percent, the court is required to sentence the defendant to at least five days in jail. Additionally, a blood or breath alcohol level of more than .20 requires at least ten days in jail.

Another common aggravating factor in DUI cases is the presence of a prior conviction. 

VA Code §18.2-270 provides that a second conviction within a period of five years after the first requires a defendant to pay a fine of no less than $500 and to serve a minimum jail term of at least 20 days in jail.

A second conviction within five to ten years after the first requires a defendant to pay a fine of no less than $500 and to serve a minimum term of at least 10 days in jail. 

A third conviction for DUI committed within ten years is a felony. A conviction requires a defendant to pay a fine of no less than $1000 and to serve a minimum term of at least 90 days in jail.

A third conviction for DUI committed within 5 years is also a felony. A conviction requires a defendant to pay a fine of no less than $1000 and to serve a minimum of 6 months in jail.  

In addition to the above, any felony DUI conviction makes your vehicle subject to seizure and forfeiture. You don’t want to be convicted of DUI while driving a car that’s paid for or in which you have lots of equity. A Virginia DUI lawyer can negotiate with the Commonwealth and keep you from losing your vehicle.

DUI Cases Involving Underage Drinkers

The alcohol laws in Virginia, like the rest of the country, strictly prohibit the consumption of alcohol for all persons under the age of 21. Under VA Code §18.2-266.1, it is illegal for any person under the age of 21 to drive after illegally consuming alcohol. A blood or breath alcohol concentration of as little as .02 is enough for conviction. A Virginia DUI lawyer can help Underage Drinkers avoid conviction and the resulting penalties.  

Potential Administrative Penalties

While the criminal penalties for any DUI conviction are certainly harsh, the administrative penalties can be even worse. Under VA Code §18.2-271, a  conviction for a first offense DUI requires a one-year loss of driving privileges from the date of conviction. A second conviction within ten years of the first requires a loss of driving privileges for three years. Any further convictions, or a conviction connected to any felony DUI offense, will result in an indefinite (usually 10 years) license revocation.

Restricted Licenses can be granted in First Offense DUI cases unless the defendant has a CDL. Restricted Licenses can also be granted in Second Offense DUI cases but not until required waiting periods have run.  

Additionally, VA Code §46.2-391.2 requires an immediate administrative license suspension. This statute states that for first offenders any blood or breath alcohol test of .08 or more or a failure to submit to these tests when requested will result in an immediate license suspension of seven days. This is in addition to any loss of license for refusing the test under VA Code §18.2-268.3. A Virginia DUI lawyer could help defendants to understand the potential effects of a DUI conviction on their driving privileges, what happens to their car after an arrest, and fight to protect those rights. 

The Effect of a DUI on a License

In addition to any penalties that a criminal court may hand down after a DUI conviction, the Virginia Department of Motor Vehicles will also take action. Just as the Commonwealth considers drunk driving a serious criminal offense, the DMV also classifies DUI as a serious type of moving violation that can affect a person’s driving privileges. The DMV maintains a driving record for every person in Virginia and assigns points to a person’s license after convictions for moving violations. DUI convictions stay on one’s DMV record for at least 11 years.

Any DMV penalty is in addition to any penalties imposed by the court. For this reason, a defendant should fight back to protect not just their freedom but also their driving privileges. A Virginia DUI lawyer could help individuals to understand the potential impact that a DUI conviction could have in regard to DMV consequences.

DUI as Reckless Operation

DUI, standing alone, is a serious criminal charge. However, matters get even more serious when police officers charge additional offenses. 

Reckless Driving by Speed is commonly charged along with DUI. This is so because many traffic stops resulting in DUI arrests were for driving too fast. Additional penalties include fines, jail terms, and further license suspensions.

Also, if passengers under 18 were in the car, even more serious charges can be brought against the driver. Fortunately, few people drink and drive with children in the car so these charges are pretty rare. However, anyone accused, and convicted, of DUI with minors in the car is subject to severe penalties. A Virginia DUI lawyer can keep a DUI client in this situation from going to jail.