Montagna & Montagna:
Intoxicated Related Offenses
A. Driving While intoxicated
1. Section 18.2-266
2. Five ways to convict:
a. While a person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided under Article 2.
b. While under the influence of alcohol
c. While under the influence of any narcotic or self administered intoxicant or drug to which it impairs the person's ability to drive safely.
d. While a person is under the combined influence of alcohol and drugs that impairs his ability to operate a motor vehicle.
e. While such a person has a blood concentration of any of the following substances at a level that is equal to or greater than 0.02 milligrams of cocaine per liter of blood, 0.1 milligrams of methamphetamine per liter of blood, 0.01 milligrams of phencyclidine per liter of blood, or 0.1 milligrams of 3,4 methylenedioxymethamphetamine per liter of blood.
3. First Offense
a. A class I misdemeanor, up to 12 months in jail and a $2500.00 fine, with a mandatory minimum fine of $250.00. If the defendant's BAC is at least .15 but less than .20, the defendant must serve a mandatory minimum sentence of five days. If the BAC is .20 or higher, the defendant must serve a mandatory minimum 10 day jail sentence.
b. Defendant must complete Virginia Alcohol Safety Action Program (ASAP), if ordered.
c. Suspension of driver's license for 12 months, with court discretion for a restricted driver's license.
d. If the BAC was .15 or more, installation of an ignition interlock system is mandated for a minimum of six months on any vehicle registered to
or owned by the defendant.
4. Second Offense:
a. Within 5 years: a Class I misdemeanor and a mandatory minimum fine of $500 and a jail sentence not less than one month, with a mandatory minimum jail sentence of 20 days; if the BAC is greater than .15 but less than .20, an additional 10 days is added to the mandatory minimum sentence; if the BAC is .20 or greater, the additional mandatory jail sentence is 20 days.
b. Within 5 to 10 years: a Class I misdemeanor and a mandatory minimum fine of $500.00 and a jail sentence of not less than one month with a mandatory minimum jail sentence of 10 days; if the BAC is greater than .15 but less than .20, the defendant must serve an additional mandatory jail sentence of 10 days and the total mandatory fine is $1000.00; if the BAC is .20 or greater, the defendant must serve an additional mandatory jail sentence of 20 days and the total mandatory fine is $1000.00.
c. Driver's license suspended for three years.
d. Restricted license may be obtained after four months, if second offense occurred between 5 and 10 years ago.
e. Restricted license may be obtained after 1 year if second offense is within 5 years.
f. All restricted licenses require ignition interlock system for a period of time not to exceed the period of license suspension and restriction, but not less than 6 months.
5. Third Offense within 10 years:
a. A Class VI felony, up to 5 years in the penitentiary and a $2,500.00 fine
b. If third offense is within 5 years, mandatory minimum $1,000.00 fine and mandatory minimum jail sentence of 6 months.
c. Mandatory minimum jail sentence of 90 days, if not within 5 years.
d. Indefinite license suspension.
6. Fourth or Subsequent Offense within 10 years:
a. Class VI felony, mandatory minimum sentence of 1 year and $1,000.00 fine.
What are Field Sobriety tests?
A. Used to assist officers in evaluating whether an individuals impaired.
B. Most common field tests: Horizontal Gaze Nystagmus (HGN), nose touch, alphabet, one leg stand, walk and turn, and preliminary breath test (PBT).
1. HGN: measures involuntary jerking of eyes.
2. Nose touch: touching nose with finger.
3. Alphabet: reciting alphabet from A to Z or from any letter to another, without singing.
4. Standing on one foot with other foot raised six inches off the ground for 30 seconds.
5. Walk and turn: walking nine steps, up and back, on a real or imaginary line.
6. PBT: not admissible at trial, but may be offered at suppression hearings to justify. probable cause; a small hand held breath testing device.
The police officer never told me of my rights, is that Ok?
A. A police officer is not required to mirandize everyone. An individual must only be advised of his rights if he is in custody. Generally, a police officer does not need to advise an individual of his rights it' he is stopped only for an investigative detention. However, the police officer must have stopped the individual based on a reasonable, articulable suspicion.
I was charged with driving on a suspended license. What can I do?
A. Obtain a copy of DMV record, pay off all fines and reinstatement fees, and have valid license with you in court.
B. Talk with an attorney to determine if officer had reasonable basis to stop me.
What is implied consent?
A. See Section 18.2-268.2
B. Basically means that if you drive a motor vehicle on a highway, as defined in the code, that you agree to submit to the breathalyzer or blood test to determine the presence of alcohol or drugs.
¤ 18.2-266. Driving motor vehicle, engine, etc., while intoxicated, etc.
It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article, (ii) while such person is under the influence of alcohol, (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, (iv) while such person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, or (v) while such person has a blood concentration of any of the following substances at a level that is equal to or greater than: (a) 0.02 milligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c) 0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3,4-methylenedloxymethamphetamine per liter of blood, A charge alleging a violation of this section shall support a conviction under clauses (i), (ii), (iii), (iv), or (v).
For the purposes of this article, the term "motor vehicle" includes mopeds, while operated on the public highways of this Commonwealth.
¤ 18.2-268.2. Implied consent to post-arrest testing to determine drug or alcohol content of blood
A, Any person, whether licensed by Virginia or not, who operates a motor vehicle upon a highway, as defined in 46.2-100, in the Commonwealth shall be deemed thereby, as a condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, if he is arrested for violation of ¤l8.2-266, 18.2-266.1, or subsection B of ¤18.2-272 or of a similar ordinance within three hours of the alleged offense.
B. Any person so arrested for a violation of clause (i) or (ii) of ¤18.2- 266 or both, ¤48.2-266.1 or subsection B of ¤18.2-272 or of similar ordinance shall submit to a breath test. If the breath test is unavailable or the person is physically unable to submit to the breath test, a blood test shall be given. The accused shall, prior to administration of the test, be advised by the person administering the test that he has the right to observe the process of analysis and to see the blood-alcohol reading on the equipment used to perform the breath test. If the equipment automatically produces a written printout of the breath test result, the printout, or a copy, shall be given to the accused.
C. A person, after having been arrested for a violation of clause (iii), (iv), or (v) of ¤18.2-266 or ¤ 18.2-266.1 or subsection B of 18.2-272 or of a similar ordinance, may be required to submit to a blood test to determine the drug or both drug and alcohol content of his blood. When a person, after having been arrested for a violation of ¤18.2-266(i) or (ii) or both, submits to a breath test in accordance with subsection B or refuses to take or is incapable of taking such a breath test, he may be required to submit to tests to determine the drug or both drug and alcohol content of his blood if the law-enforcement officer has reasonable cause to believe the person was driving under the influence of any drug or combination of drugs, or the combined influence of alcohol and drugs.
Weisberg & Zelesky:
In Virginia, it is illegal to operate a motor vehicle with a blood alcohol concentration of .08% or greater. For most adults, this can be as few as 2 or 3 drinks over the span of a couple hours. Click here for a website that estimates your BAC based on your weight, the number of drinks, and the amount of time.
Virginia police will ask you to perform a roadside sobriety test and then may ask you to take a breathalyzer. The breath test is designed to test the amount of alcohol in your bloodstream. But, if youÕve recently had a drink, the results of the test may be much higher than your actual BAC. This is because, during the absorption stage, your bodyÕs alcohol level is not evenly distributed. This uneven distribution can create an inaccurate reading on the breathalyzer.
To measure alcohol using a breathalyzer, you have to blow through a tube. The breathalyzer works by mixing your breath with sulfuric acid, potassium dichromate, silver nitrate, and water. These chemicals mix with the alcohol in your breath and the breathalyzer creates a computer read-out that shows your BAC.
It can take your body up to 45 minutes to absorb your last drink. Even after your stomach has filtered the alcohol out to your bloodstream, it may still take some time for the alcohol in your blood to fully distribute (reach an equilibrium) across your entire body. The presence of food in your stomach may delay full absorption until up to two hours after your last drink. So, if you have that Òone last drinkÓ at the restaurant or bar before going home, you may be greatly increasing your risk that your breath test is higher than your true BAC, thereby greatly increasing your risk of a DUI.
Your first DUI conviction in Virginia is punishable by up to $2,500 in fines and up to a year in jail. Virginia requires all first offenders to attend an Alcohol Safety Action Program, commonly referred to as ÒASAP,Ó which meets over a period of a few months. You will also lose your license for a mandatory period of one year. Finally, a DUI conviction will surely spike your car insurance rate.
There are many personal handheld breathalyzersavailable for purchase that may help you determine whether you should take a taxi home.
Miller, Reagan & Associates:
If you are a law-abiding citizen, your chances of being arrested are slight. It is important, though, that you know "Your Rights If Arrested." An informed and alert citizenry is the best guarantee that these rights will be upheld for the benefit of all persons at all times.
Do not resist a law enforcement officer who attempts to arrest you - even if you are innocent. The fact that you are innocent will not make the arrest illegal if the officerÕs action conformed to the requirements of a legal arrest as stated above. If the arrest is legal and you resist, you may be guilty of the crime of resisting lawful arrest. If the arrest is illegal, you are entitled to bring an action against the law enforcement officer for false arrest.
Do not resist a law officerÕs attempt to search or "frisk" you. It is legal for an arresting officer to search your person and the area in your immediate presence. Even if he does not arrest you, an officer - after identifying himself - may stop you in any public place if he has reason to believe that you have committed, are committing or are about to commit a crime. He may demand your name and address and an explanation of your actions. If he reasonably suspects that he or another is in danger of being attacked, he may search you for weapons.
Your Rights After Arrest
The U.S. Supreme Court has ruled that as soon as you are taken into custody you must be informed of the following:
1. You have a Constitutional right to remain silent.
2. Anything you say can be held against you.
3. You have the right to legal counsel and that if you cannot afford a lawyer, one will be appointed for you.
4. If you choose, you may have a lawyer present during interrogation.
In addition to advising you of your rights, the arresting authorities must respect your rights. For example, you cannot legally be required or forced by a police officer or any one else to talk, to answer questions, or sign any papers. If by threats, by persistent questioning or other means of coercion, you are forced to give incriminating information, you can prevent its use against you in court.
Within a reasonable time after you have been taken into custody, you have a right to make a reasonable number of telephone calls or otherwise communicate with an attorney of your choice and a member of your family. If you are transferred to a new place of custody, this right of communication is renewed. If you are not a U.S. citizen, you must be informed without delay of your right to contact your local consulate or embassy. Consular officials may visit you, help you arrange for legal representation, and contact your family.
You have a right to an itemized receipt for all money and property taken from your person after you are taken into custody.
You have a right to be "booked" within a reasonable period of time. "Booking" is the entry of a charge against you in a record called the "arrest book" or "police blotter."
Should your detention go beyond a reasonable period of time without booking (more than several hours or perhaps overnight), your attorney may go to a judge and obtain a writ of habeas corpus. This is a Court order instructing the police to bring you before the Court so that a judge may decide whether you are being held lawfully.
David McCormick:
If you ever find yourself in the unfortunate position of being charged with a crime, you must remember that, if convicted, you will carry that conviction with you for the rest of your life. This is not the time to represent yourself in order to save money. Depending on the severity of the charge, you may either be able to just pay a fine (without a court appearance), or you may be at risk of receiving a jail sentence.
Decker, Cardon, Thomas, Weintraub & Neskis:
Whether resulting in a minor speeding or traffic violation, or a DUI or other serious traffic offense, split second road decisions can result in unavoidable consequences.
Jon Eichler:
The laws surrounding Driving Under the Influence of alcohol/Driving While Intoxicated are unique and ever changing. It is important to have an attorney that understands this complex area of law and keeps up with the changes to ensure quality representation.
Virginia has legislated severe punishments for anyone convicted of DUI/DWI. The punishments get more severe for repeat offenders. Judges will sentence you to prison time for your second or third DUI/DWI offense. In addition to any fines you may be ordered to pay, or jail time you may be ordered to serve, your driverÕs license may be suspended for one year, even if it is your first offense. Not only will you have to deal with the inconvenience of not having your own transportation at your disposal, but you will have he added embarrassment of having to ask family or friends for rides when you need them.
In addition to the substantial punishment provided by law, many insurance companies will drop your motor vehicle coverage based on a DUI/DWI. Those companies that will insure you will only do so at a greatly increased premium. It is easy to see how important it is to protect your rights and have a lawyer that can fight to help you avoid the stigma and punishment that comes with a DUI/DWI conviction.
Ghent Law
Offices:
There is no greater feeling of panic one can experience than being charged with a criminal offense. That
applies whether or not you are guilty of the offense. Even a DUI conviction can have a lasting impact on your
life and reputation.
Mark Kantro:
If you are charged with a offense that could result in jail time or loss of your licence, you need a lawyer. The
offenses that meet this criteria are; DUI (drunk driving), reckless driving, hit and run, involuntary manslaughter,
habitual offender, or driving on a suspended or revoked license.
Perez & Burris:
DUI In Virginia
A Dozen Points to Consider
Be responsible when drinking. Choose a designated driver, call a cab,
or phone a friend instead of getting behind the wheel of a car. It is
no fun being arrested for DUI, and the danger you put yourself and others
in when you drink and drive simply is not worth it.
It is against the law in Virginia to operate a vehicle with a blood
alcohol concentration of .08 or more. Depending on your size, this may
be as little as only 2-3 drinks.
If stopped by police, always be polite, courteous, and respectful.
The police officer is only doing his job.
Do not consent to a search of you or your vehicle.
If a preliminary breath test is offered and available, more often
than not, a person should usually take it. The police officer may ask
you to perform a series of field sobriety tests such as standing on
one leg, finger to nose test, walk and turn test, horizontal gaze nystagmus
test, or reciting the alphabet. If you feel you can perform well at
the tests, you should usually take them.
You may refuse to take a chemical analysis test, which is usually
a breathalyzer that measures your blood alcohol level, but you also
risk additional charges with civil penalties that include loss of driving
privileges for one year, and the court may allow evidence of your refusal
to be used against you in a criminal trial.
The court may convict you of a DUI even without blood alcohol content
level test results if you had enough to drink to affect your manner,
disposition, speech, muscular movement, general appearance and behavior.
If placed under arrest, firmly and clearly say, “I would like
to speak with an attorney before answering any questions.”
A DUI in Virginia is a class one criminal misdemeanor and carries
maximum penalties of up to one year in jail.
A DUI conviction also carries a fine of up to $2,500.00 and penalties
include loss of driving privileges for one year and more expensive automobile
insurance premiums.
You may be allowed under some circumstances to obtain a restricted
driver’s license after a drunk driving conviction in order to continue
working.
Always retain an experienced criminal and DUI attorney to represent
you through the court system.
Dan Miller:
When pulled over in your vehicle always ask why you were pulled. Failure to
stop a vehicle with out probable cause or reasonable suspicion constitutes an
unreasonable seizure in violation of your legal rights.