Category Archives: Arlington

Arlington, VA – DWI / DUI – So you’ve been arrested for a DUI / DWI (Part I)

No one ever plans on being arrested for a DWI / DUI. A charge of Drunk Driving can be a daunting experience and many people arrested for DWI / DUI in Arlington do not know what to expect next. This post seeks to explain the process to help you understand what to expect after your arrest.

If you are charged with a DWI in Arlington, Virginia, you likely want to know what you are facing. If you are charged with DWI / DUI in Virginia under § 18.266 & 18.2-270 of the Code of Virginia, the maximum penalty for a 1st (First) offense is up to 12 months in jail and a fine of not more than $2,500.00. DWI / DUI first offenses in Arlington, Virginia are Class 1 Misdemeanors. A DWI / DUI second offense is still a class 1 misdemeanor but includes mandatory minimum jail sentences and fines. A third (3rd) offense is a felony as is any offense after being convicted of a felony DUI / DWI. Please see the below chart for the mandatory sentences required for DUI Offenses in Arlington, Virginia

OffenseSentenceMandatory Jail Not Subject To SuspensionFine

Min/Max

ASAPDL SuspensionRestricted DLIgnition Interlock
1st0 – 12 MonthsBAC ≥.15 but ≤.20 = 5 days

BAC > .20 = 10 days

$250/ $2500Required12 MonthsMay Order ImmediatelyRequired
2nd in 530 Days – 12 Months20 Days:

BAC ≥.15 but ≤.20 = 10 days

BAC > .20 = 20 days

$500/ $2500

Elevated BAC:  $1000 Min

Required3 YearsAfter 1 year SuspensionRequired
2nd in 1030 Days – 12 Months10 Days:

BAC ≥.15 but ≤.20 = 10 addt’l days

BAC > .20 = 20 addt’l days

$500/ $2500

Elevated BAC:  $1000 Min

Required3 YearsAfter 4 month suspensionRequired
3rd in 5 [Class 6]1-5 Years or 12 Months plus $25006 Months$1000/ $2500NoIndefinite; May petition court after Min of 5 yrsMay petition circuit court after min of 3 yrsYes, at least 6 months upon restoration of DL or with restricted DL during time of Suspension
3rd in 10 [Class 6]1-5 Years or 12 Months plus $250090 Days$1000/ $2500NoIndefinite; May petition court after Min of 5 yrsMay petition circuit court after min of 3 yrsYes, at least 6 months upon restoration of DL or with restricted DL during time of Suspension
4th in 101-5 Years or 12 Months plus $2500One Year                                              [& probation for time operator’s license is suspended but not > 3 years.$1000/ $2500NoIndefinite; May petition court after Min of 5 yrsMay petition circuit court after min of 3 yrsYes, at least 6 months upon restoration of DL or with restricted DL during time of Suspension
*If a person convicted was transporting a person ≤ 17 y/o = additional fine of $500 – $1000 and a mandatory 5 days confinement.

**Can seek forfeiture of the ∆’s vehicle for a 3rd or subsequent offense within 10 years.

Va. Code § 18.2-166 through § 182-.2-272

Arlington DWI / DUI Arraignments

If you have been charged with DWI / DUI in Arlington, Virginia, you may have been surprised at how fast you had to appear in Court for your arraignment.  Usually, the Court will set this first appearance within 2 weeks of the initial offense – many times almost exactly 7 days after you were arrested.  If you were released from jail, your first appearance will be at 2 pm.  This first appearance is an arraignment.

Many people ask me how they should plead at their Arraignment in Arlington, Virginia.  People are often shocked when I tell them that the judge is not going to ask for a plea at their arraignment.  Two significant things happen at this hearing:  (1) the judge will advise you that if convicted of the charge of DUI / DWI, you will be facing a potential jail sentence; and (2) he or she will advise you of your right to counsel.  If you think you can not afford your own lawyer, the judge will have you fill out paperwork to see if you qualify for court appointed counsel.  Finally, the judge will set your trial date at the conclusion of that hearing.  This date is normally within 45 – 60 days.

Individuals who retain counsel prior to the hearing can, and most times will, have that hearing waived.  Because you have exercised your right counsel already, the lawyer can submit the appropriate documents to waive the arraignment and set the case directly for trial.  After that, the lawyer will work on getting discovery and preparing the case for trial.

DWI | DUI – How to Protect Yourself

A DUI / DWI charge around the holiday season can turn a joyful time into an anxious situation for anyone. However, if you happen to find yourself in this unfortunate situation, there are few things you should remember when dealing with the police in Virginia:

1. You have the right to remain silent. You do not have to answer the officer’s questions! Being silent protects you from making statements that might be used against you later in court. I think we all know we have this right but so few people in this situation exercise this right. Further, its important to remember that during an investigation, a police officer has no obligation to tell you of this right. Since you are not technically “in custody”, police officers do not have to read you Miranda warnings either. Even during the first interactions with the officer, you have the right to say nothing. If you feel you must speak, tell the officer that you do not wish to make any statements and that you wish to exercise your right to remain silent. You can simply tell the officer “I’m sorry but I do not wish to answer any questions or make any statements.” It is important to note, that exercising this right does not mean you do not have to follow lawful commands of the officer such as producing your identification, registration, and exiting the vehicle. Failure to follow his commands, could get you in more trouble; however, you can do so silently.

2. You do not have to do Field Sobriety Tests. In Virginia, performing Field Sobriety Tests are voluntary. You do not have to do them and, if you do choose to do them, this evidence will surely be used against you if charged with DWI / DUI. A police officer is under no obligation to tell you that you do not have to do these tests. In fact, the officer will likely try to talk you into performing them. In limited situations, a refusal to do Field Sobriety Tests could be used against you. But the inferences drawn from a refusal to do them far outweighs the evidence that they offer if you do take these tests. In the end, it is in most people’s best interest not to do these tests.

3. You have a right to refuse the Preliminary Breath Test: Under Virginia law, you have the right to refuse to submit to a preliminary breath test (also known as a roadside breath test) (PBT). The officer must tell you that you do not have to take the test and can not be used against you a prosecution for DUI; however, it can be used to prove probable cause to arrest you. In every situation, you should exercise your right not to take the PBT. This test rarely, if ever, helps you avoid arrest. By the time the officer is offering this test, he or she likely knows if they are going to arrest you. All performing this test can do for you is take away you lawyer’s ability to challenge probable cause.

The above three tips will help those of you who find themselves charged with a DUI | DWI in Virginia potentially avoid being convicted. If the officer is asking you questions about drinking or asking you to do Field Sobriety Tests, they already suspect that you are driving under the influence. Don’t think you can talk your way out of it or show them that you are not intoxicated by passing the Field Sobriety Tests. Think long-term and do the best to protect yourself from prosecution. Cooperating with the investigation and not exercising your constitutional and statutory rights only gives the prosecution more evidence to use against you.

Keep in mind that one of the first questions the prosecutor will ask the officer is if you were polite and cooperative with them. Never be rude to the officer or difficult. Be polite and courteous while exercising these rights.

If charged with a DUI | DWI in Arlington, Alexandria, Fairfax, Loudoun, Prince William, or Fauquier, I can help you potentially win your case. A good defense starts with you protecting yourself!

Arlington First Offense DUI and DWI Guide

Arlington County is the second largest city (if it were designated as such) in the Washington, DC area.  With its close proximity to D.C. and flourishing nightlife, it’s no surprise that thousands of people are charged with DUI every year within its 25 square miles.  However, it is important to note that not everyone arrested and charged will be found guilty; commonly referred to as being convicted.

Right now, if you have been charged, you are likely scared.  Scared that you will go to jail, that you will lose your job, and scared of losing your job.  In addition to those fears, you have the embarrassment and social stigma associate with being charged with a drunk driving offense.  With the right lawyer, you too may be able to avoid being convicted of a DUI, DWI, or drunk driving offense in Arlington County.  The facts of the arrest, the blood alcohol concentration (BAC) if any, and the procedures the officer did or did not follow could lead to your acquittal.

PUNISHMENT

First, to put your mind at ease, a first offense DUI in Arlington often times does not result in a jail sentence longer than a weekend (or 48 hours) if your BAC is .14 or below, you have a good driving record, you were cooperative with the police, and your driving behavior was not egregious or there was no accident.  In fact, many times, individuals meeting this criteria in Arlington may never see the inside of a jail cell other than the night they are arrested.  Even if you do not meet the aforementioned criteria, do not panic.  A skilled DUI lawyer can help you mitigate or avoid jail and potentially beat your DUI.

Many people do not realize that the penalty for a first offense DUI in Arlington is up to 12 months in jail, a fine not more than $2,500.00, and loss of your privilege to drive for 12 months.  In legal terms, DUIs in Arlington are punished as class 1 misdemeanors (the most serious level of misdemeanor).  Unfortunately, if you are convicted of a DUI, the license suspension is mandatory.  It is typical in Arlington court’s that a restricted license (a license that allows you to drive to and from work, to and from school, to programs required by the court, child day care issues, church on Sunday, etc) will not be granted without the approval of the Virginia Alcohol Safety Action Program (VASAP).  Essentially, this means that you must complete the VASAP program, which is mandatory if you are convicted of a 1st offense DUI, before you will be given a restricted license.  Additionally, as a term of the restricted license, you will be required to install an ignition interlock device in your vehicle for at least 6 months.

Elevated Blood Alcohol Concentrations (BACs) in Virginia carry specific mandatory minimum jail sentences that neither the prosecutor nor the judge has the discretion to do away with.  If your BAC is greater than a .15 but not higher than a .20, there is a mandatory minimum jail sentence of 5 days.  If your BAC is higher than a .20, there is a 10-day mandatory minimum sentence.  Despite what you may have heard about day for day good time on misdemeanors, this does not apply to mandatory minimum terms of incarceration.  That said, you would have to serve every minute of that 5 day or 10 day sentence if convicted.

FACTORS CONSIDERED BY JUDGE AND PROSECUTOR

The prosecutor, Judge, and arresting officer all play a factor in the outcome of your case and potential punishment.  As one can imagine, ‘reasonable minds can and often will differ’ when it comes to these types of offenses. Some prosecutors are particularly harsh when negotiating these cases and some Judges can be particularly harsh in sentencing.  Conversely, some prosecutors and judges are more understanding to your individual set of circumstances.  One thing that appears to be almost universal is the arresting officer’s perception of your demeanor and attitude the night of your arrest.  If that officer is not going to say nice things about you, negotiating your case is going to be much more difficult.

Other factors prosecutors and Judges consider is your BAC, your driving record, and the facts specific to your case.  Lower BACs tend to accompany lower fines and a jail sentences while the opposite is true the higher the BAC.  As one would expect, a good driving record is certainly a positive factor that the prosecutor and judge will consider.

Finally, the facts of the case, mainly the driving behavior leading up to the arrest is a major factor that is considered.  Cases involving high speeds, accidents, or endangerment to others are going be punished more severely than the case where there is minor or no driving behavior.

In the end, punishments related to your DUI are going to vary based on a variety of factors that include who your judge and prosecutor is on your court date.  An experienced criminal defense attorney who specializes in DUI cases can help you navigate the Arlington Court system and provide the insight and guidance you desperately to mitigate your case effectively.

DUI CHALLENGES

Challenging the stop

In order for a police officer to stop a vehicle, he or she must have reasonable suspicion to believe that a crime is being committed or that a traffic infraction has occurred.  Certain behaviors like speeding, weaving outside the lane, illegal U-turns, and a variety of other traffic offenses, if committed in the officers presence, can lead to a traffic stop.  Even equipment violations, like a broken windshield, expired inspection, or faulty headlights can justify a traffic stop.  Sometimes, even behavior that cannot be characterized as a traffic offense can lead to a DUI stop when coupled with the officer’s training and experience.

Often, once you are pulled over, the first sign that will give the officer reason to believe you are intoxicated will be the odor of alcohol. If that is present, the officer will also look for things like blood shot eyes, inability to follow directions, flushed face, and incoherent or slurred speech.

Attacking the Field Sobriety Tests in Arlington County

If a driver is suspected of DUI, the law enforcement officer may request that the driver perform a series of Field Sobriety Tests (FSTs). Field Sobriety Tests for DUI in Virginia are voluntary, which means that a driver may refuse to perform them. However, bear in mind that the Virginia Supreme Court recently said that a refusal to do field sobriety tests could be considered by the court as consciousness of guilt.  The purposes of these tests are to allow the police officer to assess whether or not the driver is intoxicated.  If, based on these tests, and other factors the officer feels he has probable cause he or she will arrest you.

Common Virginia Field Sobriety Tests

Field Sobriety Testing in Virginia are not standardized.  This leaves the officers in Arlington free to perform tests that he or she is comfortable with so that he or she can determine if you are intoxicated.  Common field sobriety tests in Arlington are the 9-step walk and turn, alphabet, counting, one-legged stand, finger to nose, and the Horizontal Gaze Nystagmus test (HGN).

  1. 9-step walk and turn:  The driver is instructed to walk nine steps, heel to toe, on an imaginary or real line, pivot or turn in a manner proscribed by the officer, and walk nine steps back, heel to toe.
  2. Alphabet: The driver is instructed to say the alphabet from A to Z or from one specific letter to another (such as D to O) without singing.
  3. 1-Legged Stand: The driver is instructed to stand on one leg with the opposite foot raised six inches off the ground while the driver counts aloud for 30 seconds by one thousandths.
  4. Finger to Nose:  The driver is instructed to hold his arms out parallel with the ground, tilt his head back, and told to touch the tip of his nose with the tip of his index finger.
  5. HGN:  The driver is instructed to follow a pen or other stimulus as it is moved from one side of their face to the other.  This test is designed to measure the involuntary movement of the driver’s eyes.

The Preliminary Breath Test in Arlington

Whenever a police office suspects a driver of being under the influence, he or she will often ask the driver to take a PBT (preliminary breath test),usually upon the completion of Field sobriety tests. These results cannot not be used against a driver in a prosecution (guilt or innocence).  However, the PBT can used by the prosecution to establish probable cause to arrest. The results of the PBT can only be introduced for the limited purpose of justifying the arrest at a pre-trial hearing in Arlington.

Challenging the PBT in Arlington is done by closely scrutinizing the warnings given to you prior to its administration, is it an approved device, was it not used in accordance with the instruction manual, and whether or not it had been properly calibrated.  If a fault is found in one of these areas, the officer may not be able to testify as to the devices result and could lead to you winning a suppression motion.

 “Challenging the Cert” – Challenging the BAC Certificate in Arlington

IMPLIED CONSENT

Anyone operating a motor vehicle on a in Virginia has impliedly consented (already agreed) to take the breath alcohol test with the Intoximeter EC/IR II.  In Arlington, the arresting officer will ask you if you want to take the test before administering it.  If you are indecisive or refuse, the officer is required to read you the consequences of refusal.  If you refuse after being advised of the implied consent law and the consequences of refusing the breath test, you can be charged with a second offense entitled refusal.

If the breath test is unavailable or you are physically unable to take the breath test, an officer in Arlington must take you to get a blood test to find out and accurate measurement of alcohol or drugs in the driver’s system.

An unreasonable refusal charge will result, if you are found guilty, in an automatic suspension of your privilege to drive for 12 months in Virginia.  If you are convicted of a refusal charge, you will NOT be eligible for a restricted license.  A first offense is civil; not criminal.  However, if you have a prior refusal offense or a prior DUI, the license suspension is longer and it becomes a criminal charge.

Keep in mind that the suspension does not take affect until you are found guilty of the offense.

Virginia’s implied consent law does not apply if you were driving a vehicle on private property in Arlington.  In these situations, you have not already consented to taking the breath test or blood test and the decision to do so is completely voluntary.  However, the results of the test would still be admissible against you to try and prove the case against you in Arlington.

Breath Tests

Currently in use in Arlington is the Intoximeter EC/IR II.  This is the machine that you took your test on back at the police station or the jail (ADC). These machines are frequently tested and must be calibrated every six months.  When properly maintained and used correctly, the Intoximeter EC/IR 2 can accurately determine a driver’s blood alcohol content (or BAC) at the time the test is given.  However, this device can also make many mistakes.  The Intoximeter EC/IR II may read chemicals other than alcohol and does not have safeguards that prevent high BAC readings as a result of stomach and esophageal health issues.  If it is not maintained or calibrated properly, its accuracy can also be called into question.  Many other complicated issues can arise that can call the accuracy of the device into question in Arlington.  What is important is that you have an attorney that identifies these issues and works to bring them to the forefront.

Blood Tests

Police Officers in Arlington have the discretion, if they believe that you are under the combined influence of drugs and alcohol or the breath test device is unavailable, to take you to have a sample of your blood taken instead of doing a breath test.  Implied consent applies in these situations as well and the consequences are the same for refusing the test.  Blood tests must be administered as provided for in the law of Virginia and many times there are issues relating to the blood draw that could cause the results to be inadmissible.

CONCLUSION

Challenging a DUI in Arlington is possible and the conviction is not imminent.  Even with a properly administered breath or blood test resulting in a valid reading, there are still many challenges that can be brought to win your DUI in Arlington.  The presumption of innocence remains with you throughout the process and Arlington judges will find you not guilty until the government proves their case beyond a reasonable doubt. Arlington DUI lawyers win DUI cases in Arlington courts daily.  Hiring an experienced DUI lawyer who knows how to effectively challenge all aspects of your DUI case is critical to avoiding a conviction.

At times, employing the help of an expert toxicologist to convince the court that the Blood Alcohol Content that was measured does not accurately reflect the amount of alcohol in the driver’s system at the time he or she was driving, may be necessary.

You can not assume you are going to be found guilty, lose your license and go to jail.  The justice system in Arlington must be used to your advantage and weaknesses in the government’s case can be identified to achieve a positive result at trial.  Using those weaknesses coupled with effective factual and legal arguments, you can successfully defend a Arlington DUI charge.

Sometimes prosecutors can be convinced to reduce the fines or jail time in a particular case.  In limited circumstances they can even be persuaded to reduce the charge to something other than Reckless Driving.  However, when negotiations break down, you need to be prepared to go to trial and fight the case.

Court in Arlington County for Reckless Driving & Traffic Offenses

If you have been charged with Traffic Offense (excluding DUI) in Arlington County, here are few things you should know before going to court.

Arlington Prosecutors Will Negotiate with Pro Se Defendants!

In Arlington, the assigned traffic prosecutor will negotiate your reckless driving or other traffic related case with you.  The prosecutor in Arlington will sit in a conference room located directly across the hall from Courtroom 3C.  They will be more than willing to discuss your case with you and offer a proposed resolution to your Reckless Driving or other traffic related offenses.  Before negotiating your case you should do the following:  (1) SIGN OUT of the Courtroom so the judge does not call your case when you are talking to the prosecutor; and (2) talk to your officer and see if he or she will go with you to the speak with the prosecutor (**This is important because typically the prosecutor will not do anything with your case until they have spoken to the officer**)

Driving School is an Option in Arlington County

Unlike other jurisdictions, Arlington offers a Driving Behavior Management Program taught by Art Von Herbulis.  Many times an offer by a prosecutor or a reduction by a judge will include a provision that requires entry into and successful completion of this program.  This program is not your typical driver improvement course.  Rather, it focuses on identifying and changing the behaviors that cause us to drive aggressively.  In fact, the course is designed as an aggressive driving course specifically for at risk drivers as an alternative to incarceration.  However, over the years, the prosecutors and Judges in Arlington have used it more and more to facilitate education prior to reducing serious traffic offenses.  The class is three weeks in duration for two hours one night a week.  This course is not a DMV approved Driver Improvement Clinic and does not qualify you to receive five good driver points.

Reckless Driving is a Criminal Charge, Six Point Offense, and stays on your DMV Record for 11 years

A conviction of reckless driving in Arlington County will be a criminal conviction and will result in you having a criminal record.  If convicted, you are ineligible for an expungement.  An Arlington County reckless driving conviction stays on your DMV record for 11 years and carries six (6) points.  Judges have no control over points.  Points in Virginia are assessed administratively by the DMV based on the conviction.

Bring a Lawyer to Court

In Arlington, like any other jurisdiction in Virginia, having counsel with you on the day of court is always beneficial.  Lawyers know the court system and the appropriate way to negotiate your case to optimize a reduction or acquittal of a charge.  Many times, if the offense is not serious, a lawyer can save you time, money, and a criminal conviction.  For example, many people do not realize that in Arlington, a conviction of the no point offense of failure to pay full time and attention could be determined by some authorities to be a misdemeanor due to the fact that a conviction of this offense could result in a ten day jail sentence.  In other jurisdictions, this offense is merely a traffic infraction.  Avoiding this offense in Arlington is important.

If you can not afford an attorney, one will be appointed for you if you face the possibility of a jail sentence for your charge.  Arlington is very firm imposing jail for high speed reckless driving cases.

Restricted Licenses Are Not Automatic If Your License Gets Suspended

In Arlington, a restricted license must be requested from the Court on a special form provided by the Court.  However, just because you are prepared to request one, does not mean the judge will grant it.  Restricted licenses are very difficult to get in Arlington when you license is suspended for anything other than a DUI.

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