Do you need a DUI attorney in Tidewater, Hampton Roads, Chesapeake or the Tidewater area? Law enforcement agents and prosecutors in Virginia are serious about investigating and prosecuting drunk driving allegations. The penalties for a conviction are severe. A first conviction may cost you up to 12 months in jail, up to a $2,500 fine, require that you attend alcohol classes, and cause you to lose your license for up to a year. If your Breathalyzer test registers blood alcohol levels of .15 or more, you will spend five days in jail. If it registers .20, you will be spending 10 days there.
What Is Probable Cause?
Before an officer in Virginia can arrest you for Driving Under the Influence (DUI aka DWI), he or she must meet two important constitutional tests. The officer must be able to articulate a reasonable suspicion that a traffic offense, equipment violation, or other criminal activity has occurred before he or she can stop your vehicle. From there, the police officer must establish "probable cause" to arrest you for DUI.
Are You Required To Submit To Officer's Requests?
Because of their misunderstanding of the law and no requirement that the police officer explain your rights to you during a DUI investigation, most drivers assume they are required to submit to the officer's requests. Usually, drivers provide the arresting officer with all of the probable cause he or she needs by submitting to standard Field Sobriety Tests or FSTs. These often include the Horizontal Gaze Nystagmus (HGN) test, the Walk and Turn (Walk the Line) test, the one leg stand test, the Alphabet test, the counting backwards test, and/or the Preliminary Breath Test (PBT). None of these tests are required by law. You have an absolute right to respectfully decline an officer's request to perform any field sobriety tests.
Do I Have To Answer An Officer's Questions?
You are also under no obligation to answer an officers questions regarding whether you have been drinking, where you are coming from, or whether you have taken any medications recently. You are required to produce your license and registration and if asked, to step out of the vehicle for officers safety reasons. Beyond that, as they say, anything you do or say can and will be used against you. Exercise your constitutional rights and politely decline to answer any questions by exercising your right to remain silent and against self-incrimination. Politely decline any request to submit to field sobriety tests, including the preliminary breath test (PBT). You will be told by the officer that the PBT cannot be used in court against you. That is not entirely true. If your lawyer chooses to contest the probable cause for the arrest, the Commonwealth can and will use the result of that test against if it was positive for alcohol. If you decline these tests and are still arrested for DUI, you will have greatly increased your attorney's ability to challenge the probable cause for your arrest.
The consequences from a DUI conviction in Virginia are very strict. In fact, some jail sentences are mandatory and suspension is not an option. That is why it is so important to understand what you are facing after being charged with drunk driving, especially if this is not your first DUI conviction. Every repeat and multiple conviction only increase the potential for significant jail time and fines. The following are just the minimum potential penalties for each type of DUI charge, starting with a first conviction. Each situation is different so it is essential that you consult with our attorney to discuss your specific circumstance.
- First DUI Conviction: Misdemeanor conviction and possible jail time, and at least $250 fine; mandatory jail time for a BAC above .15
- Second DUI Conviction: Misdemeanor conviction; if within five years, mandatory minimum of 20 days jail time; 30 days is BAC above .15, $500 minimum fine. If within five to ten years, 10 days jail time; 20 days if BAC above .15.
- Third DUI Conviction: within five years, a Felony conviction, mandatory minimum of six months confinement, $1,000 minimum fine
- Third DUI Conviction: If within ten years, a Felony conviction, mandatory minimum of 90 day confinement, $1,000 minimum fine
- Fourth DUI Conviction: Felony conviction, mandatory minimum of one year jail time, $1,000 minimum fine
Understanding Field Sobriety Tests
With the advent of technology, it is important to retain an attorney who understands the Police Department's Field Sobriety Tests (FSTs). In Chesapeake, virtually every DUI is videotaped by the arresting officers. Shoulder cameras are attached to his or her shirt. If there are several officers involved, it is highly likely that each has a shoulder cam and that numerous video files exist, potentially depicting the stop of your vehicle, your interaction with the police officer, your performance on FSTs, your trip to the police department, and your performance on the Breathalyzer machine at the station. These videos can mean the difference between being convicted of a DUI or not. In the past, convictions for DUI were based largely on the officer's perception or opinion of your speech, your mannerisms, behavior, and ability to perform Field Sobriety Tests. An officer's opinion testimony of your performance on these Field Sobriety Tests can be biased, influenced by the training they receive including how to testify in court, or an officer's desire not to have your arrest dismissed in court. Let's face it, police officers have a vested interest in seeing their arrests result in convictions. And as they say, a picture is worth 1000 words. If that's the case, a video is worth 10,000 words.
At Timothy J. Quick, P.C., we have been successfully challenging probable cause for arrests in Chesapeake and surrounding areas with the use of these videos. The videos often depict FSTs such as the Horizontal Gaze Nystagmus (HGN), the Walk and Turn (walk the line), the One Leg Stand, the Alphabet test, and the Counting Backwards test tests vastly different than the opinion testimony of police officers. What Judges have only been able to hear about for many years from the police officer's mouth, they can now see with their own eyes. With persuasive argument from a lawyer skilled in the analysis of Field Sobriety Test performance, your chances of successfully challenging a DUI can increase significantly.
Refusing A Breathalyzer Test
Under Virginia state law, motorists who are arrested for driving under the influence must submit to a Breathalyzer test at the police station. This is not to be confused with the preliminary breath test on the side of the road. There is no legal obligation to submit to a preliminary breath test, and it should be declined when requested, as it only helps the police officer build his or her probable cause to arrest you. Likewise, it is not legally required in Virginia that you submit to field sobriety tests such as the walk and turn test, the one legged stand test, the horizontal gaze nystagmus test, or the alphabet test. Again, these only help the police officer build his or her probable cause to arrest you. The law allows you to decline all field sobriety tests including the preliminary breath test. If asked to submit to them, politely and firmly decline to take them.
However, if you are arrested, you must submit to the Breathalyzer test at the police station. If you have never been arrested for DUI before, willfully refusing to do so may result in the suspension of your driver's license for one year. If you have previous DUI convictions, the refusal charge is considered a criminal charge and your license could be suspended for up to three years and the charge is considered either a Class One or Class Two misdemeanor and can result in jail time. Those who register for a driver's license in Virginia agree to submit to a Breathalyzer test as a condition of the privilege to operate a motor vehicle in Virginia.
Mandatory Ignition Interlock Devices
First-time DUI offenders are now required to use an ignition interlock device for at least six months under Virginia's strict DUI policy. The interlock device is wired directly into the vehicle's ignition system and requires a sample of the driver's breath to start the car. The car will start only if the alcohol content of the breath sample is at 0.02 percent or less. While many states mandate the installation of an ignition device for offenders with multiple DUI convictions, only twenty states have policies requiring the device be used for first-time offenders as well.
Upon arrest for a first offense charge of driving under the influence, your license is administratively suspended for seven days. After the seventh day, you may drive until you are found guilty in court. At that juncture, your privilege to operate a motor vehicle in Virginia is suspended for twelve months. Upon arrest for a second offense, your privilege is administratively suspended until you get to court, and if convicted of DUI, it is further suspended for three years. If convicted, you may be eligible for restricted privileges for work, school, child care, medical, ASAP, and religious purposes after certain waiting periods. A third offense DUI is considered a felony in Virginia, and your privilege is revoked indefinitely. You may petition for reinstatement after three years, provided you have:
- Paid all fines and jail fees.
- Filed your financial responsibility information form, which alerts the car insurance company of your DUI offense.
- Enrolled in and successfully completed your Alcohol Safety Action Program.
- Petitioned the circuit court for reinstatement.
Some DUI offenders may be required to re-apply for their driver's license, including retaking the driving, vision and written tests.
Contact Timothy J. Quick In Tidewater Or Hampton Roads
If you have been arrested for DUI, the time to call Timothy J. Quick is now to start building your defense. The success of your case may rest on our ability to challenge the basis for the stop, the probable cause for your arrest or the legality of the Breathalyzer test. Work with our office for an optimal outcome to your arrest. Call Timothy J. Quick in Hampton Roads or Tidewater today at 757-453-7674.