Category Archives: Fairfax

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!

Fairfax 1st Offense DUI and DWI Guide

Fairfax County ranks amongst one of the wealthiest counties in America.  It is no wonder that approximately 2,800 people are arrested and charged with DUI, DWI, or drunk driving (used interchangeably in Virginia) related offenses every year.  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, scared of losing your license, and much more.  With the right lawyer, you may be able to avoid being convicted of a DUI, DWI, or drunk driving offense in Fairfax 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.

FAIRFAX DUI PUNISHMENT

First, to put your mind at ease, a first offense DUI in Fairfax often times does not result in a jail sentence longer than a weekend (or 48 hours) As long as your BAC was .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 Fairfax 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 Fairfax 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 Fairfax 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.  Furthermore, the court may grant you a restricted license to drive to and from work, to and from school, to programs required by the court, child day care issues, church on Sunday, etc.  Essentially, Virginia law permits the Court to allow individuals to do their ‘necessary’ driving.  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.

Finally, the court will require you, if convicted, to complete the Virginia Alcohol Safety Action Program (VASAP) as a term of your sentence.

Elevated Blood Alcohol Concentrations (BACs) in Virginia carry specific mandatory minimum jail sentences that neither the prosecutor nor the judge have the discretion to do away with.  If your BAC was between a .15 to .20, there is a mandatory minimum jail sentence of 5 days.  If your BAC was 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 will have to serve every minute of that 5 day or 10 day sentence if convicted.

DUI FACTORS CONSIDERED BY JUDGE AND PROSECUTOR IN FAIRFAX

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 are on your court date.  An experienced criminal defense attorney who specializes in DUI cases can help you navigate the Fairfax Court system and provide the insight and guidance you desperately to mitigate your case effectively.

FAIRFAX 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 can not 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 Fairfax 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 Fairfax 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 Fairfax 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 Fairfax

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 Fairfax.

Challenging the PBT in Fairfax 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 Fairfax

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 Fairfax, 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 Fairfax 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 Fairfax.  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 Fairfax.

Breath Tests

Currently in use in Fairfax 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 Fairfax.  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 Fairfax 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 Fairfax 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 Fairfax.  The presumption of innocence remains with you throughout the process and Fairfax judges will find you not guilty until the government proves their case beyond a reasonable doubt. Fairfax DUI lawyers win DUI cases in Fairfax 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 Fairfax 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 Fairfax 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.

Reckless Driving In Fairfax County, Virginia

If you have been charged with Reckless Driving in Fairfax County, below are few things you should know before going to court.

Reckless Driving is a Criminal Charge

A conviction of reckless driving in Fairfax County is a criminal conviction and will be put on your criminal record.  Once convicted, you can not obtain an expungement to clear you criminal record of a reckless driving charge.

Reckless Driving stays on your DMV Record for 11 years

A Fairfax 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.

Fairfax County Courts Do NOT Offer Driving School.

In Fairfax County, Judges do not offer a first offender or other type of driving school program to reduce or otherwise dismiss any traffic charge.  In some jurisdictions, the Courts will offer first offenders or people with good driving records the opportunity to take a driver improvement course.  If a person successfully completes this course, the charge is dismissed or reduced to a lower NON CRIMINAL offense.  In Fairfax County, there is NO such program.  Also, Virginia Law does not permit probation before judgement (PBJ) or other special deferments on Reckless Driving cases.

Fairfax Prosecutors Will Not Talk to Individuals Charged with Reckless Driving Who Are Not Represented By Counsel

In Fairfax County, you will not be able to talk to the officer or the prosecutor without an Attorney.  The policy of the Commonwealth Attorney’s Office is that they will not get involved in a case where the defendant is not represented by counsel.  Police Officers in Fairfax County do not have the authority negotiate a plea agreement in Fairfax County traffic Court.

Unless you are at risk of going to jail, Fairfax County Courts will not appoint you an Attorney for a Reckless Driving Charge.

In Fairfax County, Judges will not appoint counsel for indigent defendants on Reckless Driving charges unless there is the possibility that they will impose a jail sentence.  A very good indicator that your reckless driving charge in Fairfax County may result in jail time is that the Judge will ask you if you would like to have an attorney represent you or offers to appoint the public defender.

Restricted Licenses Are Not Automatic And Many Times Not Granted On Reckless Driving Charges

If your reckless driving case in Fairfax County warrants a license suspension, a restricted license must be requested from the Court.  To do so, you must fill out an application (Form DC-263 – Application for Restricted License).  However, just because you are prepared to request one, does not mean the judge will grant it.  And even if the judge grants it, listen closely to what he grants.  Many times, Judges in Fairfax County will suspend your license for 30 or 60 days but if you request a restricted license will change the license suspension period to six months (giving you a restricted for the entire time period).  Other times, the judge simply denies the request for a restricted license because they feel the case was severe enough to warrant no driving privileges.

HIRE A LAWYER

In Fairfax County, there is no better advice to give for a Reckless Driving charge than hire a lawyer.  There are over ten judges that regularly preside over matters in Fairfax County Traffic Court and this doesn’t include the numerous retired and substitute judges that can be called upon to hear traffic matters on any given day.  A common saying in the legal community is that reasonable minds can, and often do, differ.  Never is this saying more true than amongst the Judges in Fairfax County regarding their opinions as to the appropriate punishment on a Reckless Driving case. Punishments can vary immensely between cases.  Factors judges consider are speed at the time of the offense, weather conditions, traffic conditions, time of day, driving record, etc.  Minor differences in any one of these factors could change a case from being one where just a fine is appropriate to one where jail is possible.  Do not take the risk – an experienced traffic lawyer can help.  

As a former prosecutor in two Northern Virginia jurisdictions, I have handled hundreds of these cases and can many times opine regarding the anticipated outcome of a Reckless Driving case depending on the facts and circumstances peculiar to your situation.  I offer free telephone consultations for Reckless Driving cases in Fairfax County.  Call Today!

DISCLAIMER:  The information provided this website is not, nor is it intended to be, legal advice. You should rely on any of the information contained on this website.  The material is not guaranteed to be correct, complete, comprehensive or current. You should consult an attorney foradvice regarding your individual situation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.