Virginia DUI | DWI – A Lawyer’s Analysis

A lawyer analyzing a Virginia DUI | DWI case looks at three distinct phases in the arrest and trial process to ascertain the legal issues in your case. (This is not all they look at but is a good starting point for an analysis).  In doing so, a lawyer will ask themselves the following three questions:

  • Was the Initial Interaction with Law Enforcement Lawful?
  • Was the Arrest for the DUI supported by Probable Cause?
  • Is there enough evidence to prove the case beyond a reasonable doubt?

Assessing the lawfulness of the initial interaction with law enforcement is highly fact specific. Sometimes, DUI | DWI offenses are predicated on a consensual encounter with law enforcement. Other times, like when a police officer pulls you over for speeding, the initial encounter is based on reasonable suspicion that a law has been violated. Many Virginia DUI | DWI cases are won by challenging the “Stop.” Challenging the “stop” means that the officer did not have reasonable suspicion to pull you over or interact with you. In cases of encounters that did not involve an officer pulling you over, the “Stop” means the interaction that led to the arrest. Depending on the officer’s demeanor, exact wording of commands or requests, and the level of force used, you may have been unlawfully detained and your DUI | DWI could be thrown out.

Probable cause for the arrest is the standard the officer must apply to arrest you. This is the culmination of facts beginning with the officer’s initial observations through the time he puts handcuffs on you (for most situations). This includes the driving behavior observed, the statements you made regarding alcohol or drug consumption, performance on field sobriety tests, and the results of a preliminary breath test (PBT). If a reasonable person with the officer’s training and experience would believe that you committed offense, then the arrest is valid. Challenging the “arrest” involves pointing to specific facts and circumstances in your case that would show the officer was wrong in arresting you based on the information he knew at the time.

The concept of beyond a reasonable doubt is one that differs amongst lawyers, judges, and prosecutors. The axiom “reasonable minds can and will differ” often appears in this context. Defense attorneys are advocates who are trained to argue the case in the best possible light to you. Former Prosecutors usually have keen insight into the prosecutor’s and police officer’s position on cases. When assessing beyond a reasonable doubt, many attorneys will first determine what evidence is going to be ‘admissible’ and what is going to be ‘inadmissible.’ Cases hinge on the admissibility of evidence and in DWI | DUI cases, the most crucial piece of evidence is the Certificate of Analysis of a person’s blood or breath (Blood Alcohol Concentration or BAC). In Virginia DUI | DWI cases, if the certificate of analysis comes into evidence, the case is often easily proven by the government. Unless a person’s BAC is right on the edge (e.g. .08 or .09),admissibility of the certificate of analysis can mean the difference between a conviction and acquittal.

At the beyond a reasonable doubt stage all the evidence is considered. Driving behavior, statements to the police regarding drinking, performance on field sobriety tests, other indications of intoxication, and the BAC Certificate. At this stage, the evidence is assessed to see if all the elements of the offense are established. DWI | DUI Offenses in Virginia are proven when he following elements are established:

You were the driving or operating a motor vehicle and, at the time you had a blood alcohol concentration of 0.08 or more; a concentration of 0.08 grams or more of alcohol per 210 liters of breath; were under the influence of alcohol; were under the influence of a narcotic drug or other self-administered intoxicant or drug or a combination of such drugs to a degree which impaired his ability to drive or operate a motor vehicle safely; or were under the combined influence of alcohol and any drug or drugs to a degree which impaired his ability to drive or operate a motor vehicle safely.

As you can see, several issues become plainly apparent when looking at these elements. First, the government must prove that you were driving or operating. Driving, as an element, imports exactly what anyone expects it too. Operating on the other hand is not as intuitive. To be found to be operating a motor vehicle, you must be seated in the driver seat and the key must be in the ignition. The position of the key in the ignition and whether or not you intend to drive is irrelevant. Equally irrelevant is whether or not you are on a public highway. This means that you can get a DWI | DUI if you are sleeping in your car, in the driver’s seat, in your friends driveway, if the keys are in the ignition. Under this fact patter, you would have been deemed to be operating a motor vehicle.

In order for the government to prove that you were under the influence of alcohol. There are many legal propositions that are put forth. First, the per se offense indicates that if you have a blood alcohol concentration of a .08 or above, you are guilty of DWI | DUI in Virginia. Alternatively, some jurists take the position that there is no per se offense in Virginia; but, rather the judge can infer that you were under the influence of alcohol if you have a blood alcohol concentration of .08 or above. However, in cases where you do not have a blood alcohol concentration, the standard is much different.

In these cases, the courts must determine whether you were “under the influence of alcohol.” The element of being `under the influence of alcohol’ is established to the fact finder when they determine that the defendant has consumed enough alcoholic beverages to `so affect his manner, disposition, speech, muscular movement, general appearance or behavior, as to be apparent to observation.

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