If you have been charged with Driving While Intoxicated in Northern Virginia, it is important that you know what you’re facing and that you have an experienced lawyer working for you. DWI law is extremely complex, so you should hire a lawyer who works on these cases regularly and who knows the courts well. The attorneys at Zinicola, Blanch & Overand have tried numerous DWI cases in every jurisdiction in Northern Virginia and are prepared to try your case or to get you a plea offer that protects your interests.
Ten Things to Know About Virginia DWI Law:
- Virginia Does Not Distinguish Between DUI and DWI
In fact, there is no charge in Virginia called “DUI” or “Driving Under the Influence.” In Virginia, these charges are referred to as DWI, or Driving While Intoxicated. DWI applies to any driver whose Blood Alcohol Content is 0.08 or higher or is under the influence of alcohol or any other intoxicant to a degree which impairs his ability to operate a motor vehicle safely. Virginia has some of the harshest penalties in the nation for DWI convictions.
- You Don’t Have to Drive to Get a DWI
Virginia’s DWI laws prohibit not only driving a motor vehicle, but also “operating” one. Virginia’s courts have interpreted “operating” to mean simply putting the key in the ignition and activating the electrical equipment, such as the radio, without even turning on the car’s engine. As a result, sitting in your car to listen to the radio or to warm up on a cold night can get you convicted of DWI if you have been drinking.
- You Can Be Convicted of DWI Even if You Have Had Nothing to Drink
Virginia’s DWI laws apply to both alcohol and drugs. If an officer has probable cause to believe that you are under the influence of intoxicating drugs, the law permits him to take a sample of your blood. You can be convicted of DWI for using illegal drugs or for legal drugs for which you have a prescription. In drug cases, the prosecutor generally must introduce into evidence the results of the blood test and explain what they mean. This requires numerous additional witnesses to prove the case. As a result, proving these cases can be difficult, expensive, and time-consuming. If you are charged with a DWI Drug offense, you should hire an attorney who has handled these cases before, understands the toxicology of drugs, and knows how to prevent the prosecution from using their drug evidence against you.
- You Are Not Required to Perform Field Sobriety Tests
If you are pulled over by the police and they suspect that you have been drinking, they will ask you to perform Field Sobriety Tests (“FST”) to determine whether to arrest you. These tests may include standing on one leg, walking the line, touching your fingers to each other or to your nose, or reciting the alphabet backwards.Every person living in Virginia should know that these tests are completely voluntary and that you are free to refuse to do them. In most cases, it is in the driver’s best interest to refuse these tests, even if the driver is not drunk, or even if the officer is threatening to arrest you if you do not perform them. These tests are highly subjective and are not based on any reliable scientific evidence. Whatever the officer might tell you, your performance on these tests will be used against you in court, and even the slightest deviations from the officer’s instructions will cause the officer to tell the Judge that you “failed” the test.
- You Are Not Required to Give a Roadside Breath Sample
If you are pulled over by the police and they suspect that you have been drinking, they will also offer you a Preliminary Breath Test (“PBT”) on the side of the road. This is a small handheld device used to test for the presence of alcohol. Like the FSTs, this test is voluntary and you do not have to do it. The PBT devices are not scientifically reliable, are often not properly calibrated, and can give false high readings. If you have had anything to drink, taking the PBT will not help you. Virginia law provides that any positive result for alcohol is sufficient for an officer to arrest you and take you to jail.
- You Are Not Required to Answer the Police Officer’s Questions
When the police pull you over, you are a suspect in a criminal investigation. As in any criminal matter, you have a Constitutional right not to answer any questions. If you tell a police officer that you have been drinking, how much you have had to drink, where you are coming from or going, or anything else, you can expect to have those statements used against you in court. While you should always be respectful when speaking to a police officer, it is generally in your best interests to answer the officer’s questions by saying, “I do not want to answer any questions and I want to speak with my lawyer.”
- If You Are Arrested Without Probable Cause, Your Case Will Be Dismissed
If you are suspected of a DWI, the police have the right to pull your car over to investigate. However, there are limits to how long they can hold you, and to arrest you, they need sufficient evidence to establish probable cause for your guilt. One of the reasons that you should not talk to the police, perform Field Sobriety Tests, or give a roadside breath test (PBT) is that these things give the police evidence to establish Probable Cause and justify your arrest. But if the Court finds that you were arrested without Probable Cause, your case will be dismissed. The law for what constitutes probable cause is extremely complicated and fact-specific. It is vital that your attorney know these cases inside and out so that he is prepared to argue them in Court.
- If You Are Arrested, Failure to Provide a Breath Sample at the Jail Can Result in the Suspension of Your License
If you have been arrested for DWI, and the arrest occurred on a public roadway, then the police are entitled to a sample of your breath or blood to determine how much you have had to drink. Refusing to provide this sample makes it much harder for the prosecution to prove its DWI case, but comes with other consequences. If you refuse to give a breath or blood sample at the jail or police station, you will be charged with the offense of Refusal.A first offense Refusal is a civil, rather than a criminal, offense. The only penalty for Refusal is a mandatory one-year license suspension. This suspension is issued by the Department of Motor Vehicles, which means that no restricted driving privileges are available. If you have previously been convicted of a DWI or Refusal, a second Refusal is a criminal offense that can result in a three-year license suspension, up to 12 months in jail, and a fine of up to $2500.
- The Result of Your Breath or Blood Test Will Be the Most Important Piece of Evidence Against You in Court
The Blood Alcohol Content (BAC) is the most important evidence against you in a DWI case. Virginia Law states that if the BAC is 0.08 or higher, the Court may infer that you are intoxicated and may find you guilty of DWI. If your BAC is below 0.08, then it is extremely unlikely that you will be convicted of DWI. If there is no BAC in your case, it becomes much more difficult for the prosecutor to prove her case. In such cases, the prosecutor will rely on your driving behavior, any statements you have made to the police, and your FSTs to prove your guilt. This is another reason that providing this information to the police is rarely in your interests.
- DWI Cases Involving Car Accidents Are Harder to Prove, But May Result in Harsher Penalties
Many Virginia DWI charges involve car accidents. Defendants sometimes think that if there is a car accident, they cannot fight the charges and do not need a lawyer. In fact, the opposite is true. First of all, accident cases give rise to numerous defenses that do not apply in standard DWI cases. They are much more difficult for the prosecutor to prove and thus may be more likely to result in an acquittal at trial or a plea to a reduced charge. Second, if you are convicted of a DWI following an accident, you are much more likely to face harsher punishments than a standard case. Both of these factors mean the same thing – if you have a DWI accident case, you need the help of an experienced lawyer.
Penalties for First Offense DWI Cases
Even if your Driving While Intoxicated (DWI) case has no defenses likely to lead to your acquittal, you should still retain counsel to attempt to negotiate a plea agreement that results in a reduction of the charge, or at least the minimum punishment possible, and a restricted license so that you can keep your job and care for your family. If you are charged with a DWI, you should read our Ten Things You Need to Know About Virginia DWI Law page. In addition, you should know what kind of penalties you may be facing if you are convicted. Every DWI carries five separate types of possible penalties:
- Jail Sentance
The court may imprison you for up to 12 months on a first offense DWI. Courts may also impose a “suspended sentence” in DWI cases. That means that the court can sentence you to jail, but not require you to serve the jail sentence so long as you comply with the terms of your probation. In many instances, the court will impose both an active jail sentence and a suspended jail sentence. If your case involves a car accident, personal injury, a high Blood Alcohol Content (BAC), or other dangerous or reckless behavior, you are more likely to go to jail on your court date.In high-BAC cases, jail time is mandatory. If your BAC is 0.15 to 0.20, the Court must impose five days in jail. If your BAC is 0.21 or higher, the court must impose ten days in jail.In addition to an active jail sentence, if you are convicted, you will almost certainly be placed on probation for a period of one year. If you violate your probation, the court may impose your suspended jail sentence. Behavior that may result in a probation violation includes being convicted of a new traffic offense, driving when you are not permitted to do so, and failing to complete the court-ordered alcohol education program (“ASAP”).
- License Suspension
If you are convicted of a DWI, the court must suspend your driving privilege for one year. The court may grant you a restricted license to drive to work and for other purposes if it believes that you are not an ongoing danger to the community. As your BAC gets higher, the odds of getting a restricted license get lower.If you drive while your license is suspended for a DWI, or if you drive outside of your restricted license, the police will impound your vehicle and charge you with Driving on a Suspended/Revoked License, which carries up to one year in jail, up to $2500 in fines, and an automatic one year loss of your driving privilege (on top of your DWI license suspension). The court may also revoke your restricted license for the DWI charge, find you in violation of your probation, and impose your suspended jail sentence.
- Virginia Alcohol Safety Action Program (VASAP)
Every person convicted of a DWI must enroll in and complete the VASAP program, which is the probation entity for DWI charges. The standard VASAP program is a 10-week educational course with a fee of several hundred dollars. If the VASAP program believes that you are a substance abuser in need of treatment, VASAP will refer you to court-mandated substance abuse counseling and treatment at additional cost. Failure to complete these requirements is a violation of your probation, and the court may impose your suspended jail sentence or fines and/or revoke your restricted driving privileges.
- Ignition Interlock Device
Beginning on July 1, 2012, anyone who is convicted of a DWI offense will be required by law to install an ignition interlock device on their vehicle before the Court will issue a restricted driver’s license. The ignition interlock device requires the driver to blow into the machine and demonstrate that there is no alcohol on his breath before the car will start. Placing this device on your vehicle is expensive and difficult, and any samples which show alcohol on the driver’s breath can be reported to the probation office and VASAP.While the law requires an ignition interlock device for drivers who commit offenses after July 1, 2012, some courts have already indicated that they will begin enforcing this requirement for all cases heard after July 1, 2012, even if the offenses were committed before the law took effect.Virginia law also requires an ignition interlock device in all DWI cases in which the driver is convicted with a 0.15 or higher Blood Alcohol Content (BAC). This requirement applies regardless of whether your case is heard before or after July 1, 2012.
- Fines, Costs, and Fees
If you are convicted of Driving While Intoxicated, the court may fine you between $250 and $2500 dollars for a first offense. If your BAC is above 0.15, you may be subject to additional mandatory fines. In addition to fines, Virginia levies additional court costs if you are convicted of a DWI offense, which can be hundreds of additional dollars. In addition, you will be assessed fees for the ignition interlock device and the VASAP class. In all, fines, costs, and fees arising out of a DWI conviction will easily exceed $1000 in most cases. Along with the costly premiums for additional state-mandated insurance required of people with DWI convictions, being convicted of a DWI is very expensive.
Penalties for Second Offenses
Second offense DWI convictions come with a mandatory minimum jail sentence of at least ten (10) days and as many as forty (40) days, depending on your BAC and how recently you were convicted of your first offense. The court must impose a fine of between $500 and $2500 in these cases. In addition, the court must suspend your driving privilege for three years. A restricted license is unavailable until either four months or one year after your conviction, depending on how recent your prior offense was. In some cases, an experienced attorney may be able to prevent the prosecutor from using your prior conviction against you, or to negotiate a settlement where you are punished as a first offender rather than a repeat offender.
Penalties for Felony Third and Subsequent Offenses
Conviction for three or more DWIs in a ten year period is a felony punishable by up to five years in prison. In addition to a felony conviction, the Court is required to sentence the defendant to between three months and one year in jail, depending on how many prior DWI convictions the defendant has and how recent they are. The court will also suspend your license indefinitely and impose a fine of at least $1000. A felony conviction will prevent you from voting, owning a firearm, and receiving certain public benefits, as well as making it extremely difficult to get a job. These are very serious charges, which require an attorney experienced in handling them.