What is illegal under Virginia's DUI law?
Virginia's DUI laws really set out 4 different offenses . . . 3 involve your level of impairment and do not require proof of the amount of alcohol/drugs in your system. The 4th involves the amount of alcohol in your system and does not require proof that you were impaired.
The 3 related offenses that all involve your level of impairment are (1) driving under the influence of alcohol, (2) driving under the influence of drugs and (3) driving under the influence of a combination of alcohol and drugs.
In alcohol cases, a BAC of .08 or more creates a presumption that you were under the influence of alcohol. More importantly, it is illegal to drive with a BAC of .08 or more, whether you are under the influence of alcohol or not.
Why was I arrested if my BAC was less than .08?
Because even though your BAC was less than .08 you can still be prosecuted for driving under the influence of alcohol and/or drugs.
Why was my license suspended for 7 days when I was arrested?
Virginia law requires the automatic suspension of your Virginia driver's license for 7 days if your breath test result was more than .08, or more than .02 if you are under 21 years of age, or if you refused to submit to the breath test.
Can I get my license back prior to the expiration of the 7 day period?
You can challenge the suspension during the suspension period. If your challenge is successful your license to drive will be reinstated immediately. Otherwise, you can not drive during the 7 day suspension period, and your license will be returned to you at the expiration of the suspension period.
What happens at the arraignment?
At the arraignment, the Court will make sure you understand the charge against you, inform you of your right to be represented by an attorney and inform you of your next court date.
Do I have to go to court for the arraignment?
Yes, you must go to court for the arraignment unless you have hired a lawyer and have been told otherwise. Some courts excuse defendants from appearing for the arraignment if they have hired a lawyer and the lawyer appears for the client.
However, unless you have specifically been told by your lawyer that you do not need to appear for the arraignment, you must be present. Failure to appear in court for the arraignment can result in your arrest.
Since the test result indicates my BAC was .08 or more, am I going to be found guilty?
Not necessarily. There are many tactics and strategies to use when defending DUI cases. In certain circumstances we can successfully challenge the procedures used when administering the test and the accuracy of the test result. Please see my Challenges page for some specific examples of defense tactics and the outcome of some of my recent cases.
What if I burped within twenty minutes of blowing in the machine?
The breath machine may have measured alcohol from your stomach rather than from your lungs. If this happened, the result may be incorrect. The presence of dentures may also cause the test results to be inaccurate.
If I am convicted of DUI, will my license be suspended, and if so, for how long?
Yes, if you are convicted of DUI in Virginia your license will be suspended. The length of the suspension depends on the facts and circumstances of your case. Virginia law requires a 12 month suspension for a first offense; a 3 year suspension for a second offense and an indefinite suspension for 3rd or subsequent offenses.
Will I be able to drive for work during the suspension period?
It depends on the facts and circumstances of your case. If you are found guilty of a first offense, the Court has the authority to issue a restricted license allowing you to drive for limited purposes such as for work, school, doctor visits and to transport children.
Most courts will limit the number of hours per day and the number of days per week you can drive on a restricted license. In addition, most courts will not issue a restricted license until the fine and court costs are paid in full.
If this is a second or subsequent offense, you can not be issued a restricted license until some period of time has passed. It can be as short as 4 months or as long as 3 years, depending on the facts and circumstances of your case .
If I am convicted of DUI will I have to undergo alcohol treatment?
Yes, you should expect to have the Court order you to successfully complete Virginia's Alcohol Safety Action Program (VASAP). The length of the treatment/education required also depends on the facts and circumstances of each case. In addition, since completion of VASAP is routinely imposed as a condition of a suspended jail sentence, failure to successfully complete VASAP can cause you to go to jail.
Will I be able to get my case dismissed because I was not read my rights?
Probably not. But if you were interrogated after being placed in custody, your statements can not be used against you.
Can I have a jury trial?
There are no jury trials in either the General District Court or the Juvenile and Domestic Relations District Court in Virginia. All trials in those courts are conducted before a judge. If you are found guilty in either of those courts you have the automatic right to appeal the case to the Circuit Court for a new trial. At this new trial in the Circuit Court you have the right to insist on a jury trial, as does the Commonwealth and the judge.
Why is a jury trial is advisable:
Seven people have to agree on your guilt instead of one.
If I am found guilty, will I go to jail?
It depends on the facts and circumstances of your case. If this is your first offense and there are no aggravating circumstances such as a high BAC, dangerous driving or fighting with the officer you probably will not go to jail.
On second or subsequent offenses, going to jail becomes more probable, but an experienced attorney may be able to keep you out.
If my Virginia license is suspended, may I get another license from another state?
In most cases, no.
If I obtain an international driver's license, may I drive in Virginia , even though my Virginia license is revoked?
Am I a bad person, because I was arrested for DUI/DWI?
No, but you are well advised never, never smell like alcohol while behind the wheel.