An Educated Client is the Best Client - Get Your Virginia DUI Questions Answered Here
Many people who have been cited for reckless driving or arrested for drunk driving in Virginia have common questions, and our Manassas DUI defense lawyers developed this section on our website to educate, inform and help you through this difficult time. When you are facing a challenging case, look for your answers here. If you cannot locate the answer to your specific question, please give us a call, and our qualified Northern Virginia criminal defense attorneys will answer your legal questions.
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If the court requires me to put an ignition interlock device on my vehicle, does the court system pay for it?
No, the court will not pay for your ignition interlock device. Since 2012, any Virginia driver convicted of Driving Under the Influence (DUI) is required to have an ignition interlock device installed on his or her vehicle before restricted driving privileges will be granted.
About Ignition Interlock Devices
An ignition interlock, sometimes called a breath alcohol ignition interlock, is a device that requires the driver to blow into a mouthpiece before starting the vehicle. If the device measures a blood alcohol concentration (BAC) over the legal limit, it prevents the vehicle's engine from starting.
Once the vehicle has been started, the ignition interlock requires periodic breath samples. If the sample shows an unacceptable BAC, an alarm sounds until the vehicle is shut off or a clean sample is provided.
Cost of Ignition Interlock Devices
If you're required to have an ignition interlock on your vehicle as a condition of getting a restricted license, you must pay for the device yourself. There are several different companies offering ignition interlock devices for Virginia drivers, which helps keep prices competitive. In most cases, you'll pay about $80 per month. Installation is typically free, but the monthly maintenance fee is necessary to make sure the device is working appropriately. If you fail to comply with the monthly maintenance of the device, you'll lose your restricted license.
Unfortunately, people who are unable to afford the cost of an ignition interlock have limited options. The device is required by law to obtain a restricted driver's license. If you can't afford the fee, you can simply opt not to request a restricted license and seek alternative transportation for work, medical appointments, and Alcohol Safety Action Program (ASAP) meetings.
Driving a borrowed vehicle is not a way around the ignition interlock requirement. Offenders are required to have an ignition interlock device on every vehicle they drive, even if it's not registered in their name.
Seeking Legal Representation
If you've been charged with a DUI, it's vital that you find a skilled attorney to advocate for your interests throughout the process. Please call today to schedule a free, no-obligation case review with Virginia DUI defense attorney T. Kevin Wilson.
Is drag racing a form of reckless driving?
A need for speed can get you into big trouble with Virginia law enforcement officers, especially if you're caught drag racing. Virginia considers drag racing a form of reckless driving that’s punishable with hefty fines as well as jail time. Convicted offenders will also find themselves with a criminal record, creating problems when it's time to get a job or rent an apartment.
Drag Racing Defined
Drag racing is defined as a race between two or more vehicles on Virginia's public streets or highways, or in the driveway or premises of a public business, school, church, or recreational facility. The race must have defined start and end points.
Drag racing is generally considered a misdemeanor, with a six-month to two-year license suspension. Misdemeanor offenders also receive six demerit points on their driving record. This form of reckless driving can be a felony if someone is seriously hurt or killed as the result of your actions. As a Class 6 felony, drag racing is punishable by one to five years in prison.
Potential Drag Racing Defenses
The most obvious defense for a drag-racing related reckless driving charge is that you weren’t actually engaged in a race. Since drag racing is defined by a predetermined start and end point, two vehicles speeding alongside each other aren't automatically considered racing. Reckless driving cases centered around allegations of drag racing typically depend heavily on witness testimony, which can be subjective. If the witnesses don't agree you were racing, you may have a viable defense.
If you were on private property, you may have a defense if the property owner or someone who lawfully represents the property owner is willing to testify that you had permission to be operating your vehicle in the area.
To protect your rights, you'll want to enlist the services of a reckless driving attorney familiar with cases involving drag racing. Virginia defense attorney T. Kevin Wilson provides superior representation in both misdemeanor and felony reckless driving cases. Please call today to schedule a free, no-obligation case review.
Should I have my speedometer calibrated?
You may think a safe driver pays careful attention to the car's speedometer, but this device isn't always an accurate indication of how fast you're going. Having your speedometer calibrated can give you a more accurate indication of your speed while serving as valuable evidence in a reckless driving by speed case.
Speedometer Discrepancies Add Up Over Time
Typically, your car comes direct from the factory with a speedometer variance of one to three miles per hour. As you drive, this discrepancy slowly increases. Part of this is simply attributed to the general wear and tear on your vehicle, but problems with your tires or transmission can accelerate the process.
Getting Your Speedometer Calibrated
If you've been charged with reckless driving by speed, Virginia courts will allow you to use a speedometer calibration certificate as evidence in your case. However, the certificate must be from a shop within the state of Virginia. Calibrations from other states are often inadmissible because they don't meet the court's requirements for authentication.
The most accurate speedometer calibration is done using a dynamometer. This machine works by having your car placed with the wheels resting on the dynamometer's cylinders. As your car's wheels turn, the dynamometer shows how fast your car would be traveling if it was on the road. If there's a difference between the dynamometer reading and what your car's speedometer says, this evidence can be submitted to possibly reduce or drop your charge.
Handling Evidence That Hurts Your Case
If you're not 100% positive your speedometer is inaccurate, you might wonder if obtaining a calibration is risky. Although it's possible a calibration could hurt your case, you don't need to provide the certificate to the court unless the prosecution requests it. In most cases, a calibration certificate that shows you were actually driving faster than what the officer who ticketed you listed belongs to you alone.
Protecting Your Rights
Virginia treats reckless driving by speed as a serious offense, with stiff fines and the potential for jail time. To protect yourself, seek the assistance of an experienced defense attorney. Contact attorney T. Kevin Wilson to schedule a free, no-obligation case review.
When can entrapment be used as a DUI defense?
If you've been charged with a DUI in Virginia, you may find yourself wondering if entrapment works as a viable defense. Although TV courtroom dramas often make it seem like arguing entrapment will get any criminal charge dropped, the reality is that entrapment is almost never a successful DUI defense.
Entrapment Seldom Works as a DUI Defense
Entrapment means that someone has been encouraged, enticed, or essentially tricked into committing a crime by a law enforcement officer. In terms of a DUI defense, entrapment is rarely successful.
To have a viable claim for entrapment, an officer has to have persuaded you to do something you otherwise wouldn't have done. The most common scenario in which an arrested driver unsuccessfully tries to claim entrapment occurs when an officer is patrolling outside a bar waiting to pick up people who get behind the wheel after having too much to drink. Since the officer is in a public area and not interacting with the bar's patrons beforehand, this conduct isn't entrapment. The patrons who drive drunk would have gotten behind the wheel regardless of whether the officer was present.
A more viable defense for a DUI would hinge on whether the officer had a valid reason to pull over the driver. Simply exiting an establishment where alcohol is served doesn't give the officer a reason to pull over a driver. However, speeding, swerving, or running a red light would all be valid reasons to pull over a driver. Even something as minor as a broken tail light could be considered a valid pretext for a DUI stop.
Challenging the validity of the stop is often successful as a DUI defense because evidence from an illegal stop is inadmissible. This means that there's typically no case if the stop wasn't legal.
Protecting Your Rights
If you've been charged with a DUI, possible penalties include fines, jail time, license suspension, and the stigma of having a criminal record. To protect yourself, it's vital that you hire an experienced defense attorney. Contact attorney T. Kevin Wilson to schedule a free, no-obligation consultation.
Can a police officer search my car after pulling me over in Virginia?
Although the Fourth Amendment prohibits unreasonable police searches of your vehicle following a traffic stop, it doesn't specifically state what type of search is unreasonable. However, vehicle searches conducted without a warrant can be broken down into four general categories:
- Probable cause. A law enforcement officer is allowed to search your vehicle if he has probable cause to believe there is incriminating evidence inside.
- Searches incident to arrest. If you're arrested following a traffic stop, an officer can conduct a search of your vehicle to look for weapons or evidence relating to the arrest. However, the weapons justification for a search is only valid if you're within reaching distance of the vehicle at the time of arrest. An officer can't search your car using a safety justification if you're already handcuffed in the back of a squad car.
- Consent to search. Barring other legal justification, an officer is allowed to search your car if you give him permission. However, your consent must be freely and voluntarily given. If you've been coerced into allowing the officer to search your car, the evidence obtained can't be used against you.
- Inventory search. After a DUI arrest, your vehicle may be impounded. When this happens, law enforcement officers can conduct a search to inventory the contents. The purpose of this type of search is to make sure any items in the car are accounted for and can be returned to the owner when the vehicle is released. However, officers can use any incriminating evidence they find as a result of this type of search.
Protecting Your Legal Rights
When you are stopped by a law enforcement officer, you must provide your name, driver's license, and vehicle registration card. You are not legally obligated to answer any other questions or to provide consent to search your vehicle. It's best to remain calm, assert your rights politely, and refrain from physically interfering with the officer's work. If appropriate, your attorney can later challenge the validity of the search.
To learn more, call to schedule a free, no-obligation consultation with T. Kevin Wilson at 703-361-6100 or fill out a contact form here and we will speak with your soon.
How Does a DUI Affect My Employment Opportunities?
Virginia law makes DUI charges and convictions a matter of public record. This can create significant problems for job seekers, since a drunk driving arrest will show up on a routine pre-employment background check.
How Employers Use Background Checks in the Hiring Process
It has been estimated that 90-95% of employers run background checks for either some or all of their available job openings. Background checks can be ordered from law enforcement agencies or third-party data brokers. Employers should not adopt a blanket policy of excluding all applicants with a criminal record. Instead, the Equal Employment Opportunity Commission (EEOC) recommends evaluations on a case-by-case basis.
The problem with a DUI conviction is that it can draw into question your ability to safely operate a motor vehicle for work-related purposes—creating a problem if you work in a field that requires regular business travel. If it's a second or third offense, a DUI may also cause your potential employer to believe you have a substance abuse problem.
Protecting Yourself From Discrimination
Virginia law prohibits employers from asking about criminal records that have been expunged. Unfortunately, while some states allow DUI charges to be expunged, Virginia only allows for expungement if you're later proven innocent or were wrongly accused of the crime.
The best way to protect yourself from the negative effect of a DUI charge on your future employment opportunities is to hire an experienced attorney. An attorney familiar with Virginia's DUI laws may be able to get the charges dismissed or reduced. While the arrest will still show up on a background check, this will be much less damaging than a conviction. Employers are more likely to give a qualified candidate the benefit of the doubt when an arrest can be explained as an isolated misunderstanding.
Avoid Problems With Getting A Job With A DUI On Your Record With Help From an Attorney
To learn more about building a strong DUI defense, contact the Wilson Law Firm. Attorney T. Kevin Wilson, an experienced Northern Virginia DUI defense lawyer, is committed to helping clients minimize the impact of a DUI arrest on their future.
Is a DUI a Misdemeanor in Virginia?
Depending upon the circumstances, a drunk driving charge in Virginia can be prosecuted as either a misdemeanor or a felony. How a DUI is classified makes a significant difference in terms of what punishment you will be facing.
Misdemeanor vs. Felony
As a general rule of thumb, courts in the United States consider a crime punishable by incarceration for up to a maximum of one year to be a misdemeanor. If the crime carries a penalty of incarceration for one year or more, it is considered a felony.
In the majority of cases, a Virginia DUI arrest is considered a misdemeanor. You will only be charged with a felony if it is your third offense within a 10-year time period. A third offense DUI is prosecuted as a Class 6 Felony.
Penalties for a Misdemeanor DUI
Do not make the mistake of failing to take a DUI charge seriously because it's classified as a misdemeanor. Penalties for a first-time DUI offense for a person age 21 or over include:
- A mandatory minimum $250 fine
- License revocation for one year
- Mandatory minimum 5-day jail term if your BAC is 0.15% to 0.20% or a mandatory minimum 10-day jail term if your BAC is 0.20% or higher
- Mandatory 5-day jail term if you were transporting a passenger age 17 or younger at the time of your arrest, plus an additional fine of between $500 and $1,000
DUI penalties are assessed regardless of whether you cause an accident. If someone is hurt or property damage is involved, you may be facing additional charges.
Virginia law enforcement officers automatically report a DUI to the Central Criminal Records Exchange at the time of your arrest, leaving you with the potential for a criminal record that can impact your future employment opportunities and general reputation.
Protecting Your Rights
If you've been charged with a DUI, enlisting the services of a skilled attorney is a must. Even a first-time DUI conviction can have major consequences for your future.
T. Kevin Wilson is on the cutting edge of DUI defense, with specialized education, training, and experience in areas such as breathalyzer accuracy and field sobriety testing. Call today to schedule a free, no-obligation consultation.
Can I Cross State Lines With A Suspended License?
Yes, at least temporarily. In the USA, each individual state honors licenses to drive issued by sister states. This allows you to drive in states other than your home state even though you don’t have a license in that particular state. For example, if your license was issued by Virginia, that license allows you to drive in every other state as long as it remains valid, assuming you have not had your privilege to drive in some other state revoked. If you have had your privilege to drive in some other state revoked, then your Virginia license allows you to drive everywhere except that state.
On the other hand, the suspension or revocation of your privilege to drive in some other state has no immediate effect on your Virginia license. In theory, word of that out-of-state suspension will be communicated to Virginia eventually and chances are good that the Virginia DMV will take some action against your Virginia license at that time. However, until such time as you are notified that the Virginia DMV has taken some action to suspend or revoke your Virginia license, it remains valid despite your privilege to drive being suspended in another state.
If you have been arrested or ticketed and accused of Driving on a Suspended or Revoked License, or some other Criminal or Traffic violation and would like to speak with a Virginia DUI / DWI Criminal & Traffic Defense Lawyer, call The Wilson Law Firm at 703-659-9740 and we’ll be happy to discuss your situation with you in more detail.
What is Administrative License Suspension in Virginia?
If you find yourself in the unpleasant situation of being arrested for DUI, there will be a lot of things going through your mind. There’s nothing pleasant about being arrested nor about the unwanted attention you’re likely to get in the community. However, one concern that may come up over and over is: will I still be allowed to drive?
There’s a lot of misinformation about how license suspension works in Virginia. You’d probably assume that your license cannot be suspended unless you’re actually convicted of DUI. After all, everyone is innocent until proven guilty, right? But in Virginia and many other states, license suspension begins as soon as you’re arrested for DUI—even though you haven’t gone to trial yet. This is called Administrative License Suspension, or ALS.
ALS is handled by the Department of Motor Vehicles, not by the courts. It’s the state’s way of making sure that potential drunk drivers aren’t back on the road during the time from arrest to trial. If that sounds unfair to you, you aren’t alone; most people charged with DUI are shocked to learn that this takes effect before their trial. ALS is issued automatically after virtually every DUI charge.
The duration of the ALS is not the same for everyone, however:
- For first time offenders, ALS will suspend your license for seven days.
- For a second offense the ALS lasts for 60 days, or until you go to trial, whichever is quicker.
- For a third offense and beyond, the ALS will last until you go to trial, no matter how long that takes.
ALS doesn’t only apply to DUI charges as such, however. Refusing to take a breath test when accused of DUI is also illegal, and ALS will kick in if you refuse the breath test as well. It’s always best to cooperate with police and accept the breath test, even if you think you may be over the legal limit.
Even the first time ALS of seven days can be a major burden. Missing up to a week of work can be a disaster, especially if you’ve already missed days due to being in jail. The longer ALS periods are even more severe.
There are ways to get limited driving privileges, however. It’s possible to apply for restricted driving privileges from the DMV even while ALS is in effect. This can allow you to drive to work, school, and doctor’s appointments, which can help you keep your life on track as you await the next step of the legal process.
If you have been arrested for drunk driving, don’t try to navigate these complex rules on your own. The Wilson Law Form can help you apply for restricted driving privileges and will fight for you both in and out of court. Call us today for a FREE consultation on how to proceed with your case.
Can a Medical Emergency Be Mistaken for DUI?
Not long ago we wrote about a local school bus driver who was arrested for DUI with a bus full of kids. That driver has now been vindicated and was not under the influence of any substance. So what happened? The answer is an important lesson for both law enforcement and drivers.
The driver in question is 60-year-old Dorothy Youngs. She was arrested in June after Virginia Beach Police received reports that her school bus was swerving. The bus was pulled over and Youngs was asked to perform field sobriety tests in a nearby parking lot. When she failed, she was arrested on suspicion of driving under the influence.
Her bus was full of 5- to 12-year-old children. Parents and the public were understandably upset.
However, investigators have now cleared Dorothy Youngs of all charges. She was never under the influence at all. Rather, she was having a medical emergency when she was arrested.
The new information helps solve a puzzle that never made sense in the original story. No one accused Youngs of drinking and driving—she was accused of driving under the influence of drugs. Witnesses reported that she was completely unaware of her surroundings, and police helped hold her up. It seems unusual that a 60-year-old woman with no drug history would be using so many illegal drugs that she couldn’t even walk. A health problem that affected her driving makes a lot more sense.
Investigators did not disclose the nature of the health problem. It could have been critically low blood sugar, a seizure, or any of dozens of other conditions that can strike with little warning. What is clear is that it affected not only her driving ability, but the safety of her passengers as well. This comes with two lessons:
- Police should be trained to recognize health problems. Instead of rushing Youngs to the hospital police forced her to complete sobriety tests and then took her to jail. Thankfully Youngs is alive, but if she had been having a stroke it could be a very different story.
- If drivers are experiencing distress, they should pull over immediately. Whether it’s a migraine, dizziness, chest pain or symptoms you cannot explain, you should not be behind the wheel. Pulling over and calling for help not only means you won’t be mistaken for a drunk driver, it will also help prevent a potentially serious accident.
We’re glad Ms. Youngs had a talented legal team that was able to gather evidence and clear her name. It is much harder to fight a DUI charge alone. If you need an experienced DUI defense lawyer, contact The Wilson Law Firm for your free consultation today.
Can I Avoid a DUI Checkpoint in VA By Turning Around or Pleading the Fifth Amendment?
Checkpoints are interesting. The general rule is that police have to have a good reason, before they can stop you, to prevent you from going about your business. That’s rooted in the Fourth Amendment, which says you’ve got to have protection against unreasonable searches and seizures. And our courts have decided that in order for the search or the seizure to be reasonable, they need to at least have some reason to believe you’re doing something wrong.
That is completely different in the situation of a checkpoint. Police set up a checkpoint, or a roadblock, or whatever they want to call it, and they’re stopping everybody on the road, and they have no reason to believe that anybody has done anything wrong. That is exactly what is prohibited by the Fourth Amendment.
That is the definition of an unreasonable search and seizure. The police are stopping you even though they don’t think you’ve done anything wrong. But, our courts decided that drunk driving is such a big problem that they’re going to allow a very limited, sort of they’re chipping away at that Fourth Amendment, they’re going to allow that sort of a very brief limited stop if it’s done in a certain way.
They’ve got to have written procedures and stick pretty close to that. It’s got to be a brief encounter. It’s supposed to be no more than a few seconds. And that’s why … because otherwise, it’s an absolute violation of the Constitution.
When you see one can you avoid it?
Yes. You do not have to go through a checkpoint, if you can drive away from that checkpoint without breaking laws. Sure. All my clients seem to slam on the gas and make a U-turn, crossing double yellow lines, and cutting somebody else off, and drawing attention to themselves by committing other violations trying to avoid the DUI checkpoint.
But if there are signs that say, hey, a mile ahead there’s a DUI checkpoint, and there’s a road to turn down, you’re free to turn down that road before you get to the checkpoint. There’s nothing wrong with that. What you can’t do is commit some other violation.
What to do at DUI Checkpoints in VA
Once you pull up to the checkpoint, and you’re engaged with an officer, now you have that same decision to make. What am I going to do here? Am I going to answer his questions or am I going to not answer his questions?
If there’s any reason to believe that you’re somebody that needs to be further screened, they’ll move you over to a second staging area, and go into the full DUI investigation. If you sort of pass that initial screening, they’ll just waive you on your way and you’ll pull right on through.
Most of the checkpoints they don’t talk to every vehicle. I shouldn’t say that. I guess it depends on how busy the traffic is. But they will have a plan. That plan that they have for the checkpoint will dictate whether they’re talking to every vehicle, every third vehicle, and every fifth vehicle, whatever it is. And the others have to be able to pass through without being stopped at all.
But if you’re one of the ones they’re engaged in conversation with, and if they smell alcohol, they’ll process you over, push you over to that other staging area and have that same old DUI investigation that they would have had if they’d caught you speeding, or doing some other violation.
When Is A DUI A Felony In Virginia?
You may have experienced that terrible moment when you glanced in your rearview mirror and wondered if you might be over the legal limit. Perhaps you had three beers, but it was spread over several hours time. Or maybe you had one strong drink just 10 minutes ago. There are a million questions that may flash through your mind, one of which may be: Is DUI a felony offense in Virginia?
The answer is … it depends.
Your first move after an arrest should be to obtain competent legal counsel. At The Wilson Law Firm, our Virginia DUI defense attorneys can tell you whether or not your DUI arrest constitutes a legitimate felony charge, and offer you much more. At our law firm, we have the knowledge, skills, and determination to see our clients through a vigorous defense against DUI charges.
When is DUI a Felony in VA?
Many DUI arrests result in a drunk driving misdemeanor charge; however, some arrests will result in a felony charge. According to Virginia law, anyone who has three DUI offenses “committed within a 10-year period shall upon conviction of the third offense be guilty of a Class 6 felony.”
A DUI can also be charged as a felony when there is an accident with injuries. In addition to the criminal charges there could also be separate personal injury litigation. In the most famous instance of this, O.J. Simpson was found not guilty of murder at his criminal trial, but liable for wrongful death in his civil litigation.
Penalties for a Class 6 Felony Conviction:
- A Class 6 felony is a serious matter, and a conviction can result in:
- A mandatory minimum sentence of 90 days in jail
- A mandatory minimum fine of $1,000
- A mandatory loss of driver’s license for an indefinite period of time
- Potential loss of certain professional licenses or certifications
- A required Ignition Interlock system for every vehicle you own, co-own, or operate on a regular basis
A defendant convicted of a third DUI in Virginia may be declared a habitual offender if all three of their DUI convictions took place within a 10-year period. Habitual offenders may lose their driving privilege indefinitely, although in most cases they will be able to petition for reinstatement of restricted privileges in three years, with full privileges in five years.
When you’ve been charged with a Class 6 felony for drunk driving, there are several options that a capable DUI criminal defense attorney will discuss with you. Our lawyers will not only look at the facts of your case to see if there is a chance to have your case thrown out completely, but we will provide you with other legal options as well. Some potential felony DUI options include:
- Get the traffic stop disallowed and the charges dropped if there is proof you were stopped illegally.
- Negotiate to downgrade the felony charge to a misdemeanor charge
- Challenge a previous DUI conviction to reduce collective prior DUIs to one DUI conviction
- At The Wilson Law Firm, we provide you with options, but the decisions are always yours.
Contact an Experienced Virginia Felony DUI Attorney Today
Is a DUI a felony in Virginia? The Virginia DUI lawyers at The Wilson Law Firm will give you the guidance you need to obtain the results you deserve. Contact us to schedule your free, confidential initial consultation today.
How Common Is a False Breathalyzer Reading?
A Breathalyzer device is a machine or device commonly used by law enforcement officials to measure the blood alcohol content (BAC) of an individual, such as a driver during a traffic stop who is suspected of DUI. Some devices are portable so they can be easily transported by law enforcement officers. Other models are designed to be stationary and placed in police stations. These devices are marketed and sold under various brand names, including Alcosensor, Intoxilyzer, BAC Datamaster, and Alcoscan.
Although many Breathalyzer devices are on the market, they all work in basically the same manner. Breathalyzers measure the alcohol content in a person’s breath, as opposed to alcohol blood tests, which directly measures BAC. Through an alcohol content measurement, the Breathalyzer device estimates the person’s BAC. It is well-established that alcohol blood tests are the most accurate way to determine a person’s BAC. However, due to their expense and inherently intrusive nature, i.e. drawing blood from a person’s body, Breathalyzer machines are the most common tool used by law enforcement to evaluate an individual’s BAC. Law enforcement agencies in all states rely heavily on Breathalyzer tests to charge individuals with DUI. Likewise, prosecutors often use Breathalyzer results as the basis for DUI convictions. Nonetheless, a variety of outside factors can directly affect the accuracy of breath test results, as can errors in the administration of Breathalyzer devices. As a result, some studies estimate that about 23% of individuals tested using this method will have an actual BAC that is significantly lower than the BAC reading, sometimes by up to 15%. Since BAC levels can govern whether a person is convicted of DUI, and in some states, the degree of the crime charged, having potentially false or misleading BAC results is extremely problematic. Let’s take a closer look at some of the outside factors and errors in administration that may affect the outcome of a Breathalyzer test.
Gastroesphageal Reflux Disease (GERD) and Breathalyzer Results
There are some medical conditions that directly impact an individual’s BAC reading. For instance, gastroesphageal reflux disease (GERD) is one medical condition that can directly affect the results of your Breathalyzer test. In fact, it can create a false positive reading or a test reading error. Most Breathalyzer machines are designed to measure alcohol content in the lining of your lungs. However, medical experts advise that it is the air deepest in an individual’s lungs that provide the most accurate measure of blood alcohol content. In an individual who suffers from GERD, alcohol actually can move from the stomach to the back of the throat. Therefore, an individual with GERD may register a much higher and wholly inaccurate BAC reading when taking a Breathalyzer test.
Likewise, even individuals without GERD may register incorrect BAC readings from a Breathalyzer if they have recently eaten a meal that produces a great deal of acid reflux, such as meals that are extremely greasy or spicy. The presence of acid in one’s breath or mouth can skew the BAC results to produce a false outcome. As a result, the presence of GERD in an individual may serve as a defense to DUI charges based on Breathalyzer test results.
Breathalyzer Results and Other Chemical Compounds
A Breathalyzer machine does not really measure alcohol, per se. Rather, it typically measures the level of the methyl group of chemical compounds, which the device assumes is ethyl alcohol. This is particularly the case with infrared breath testers. There are 70 – 80 different types within the methyl group structure. The problem with this fact about Breathalyzers is that other chemical compounds may be present in an individual’s breath that can cause false positive Breathalyzer test results. Some of these chemical compounds may exist in a person’s breath from the following activities:
- Breathing in gasoline, oil-based paint, propane, or varnish fumes
- Acetone production, commonly found in the breath of diabetics, as well as individuals who have gone on the Atkins diet or other types of low-carb diets involving fasting.
- Production of so-called “mouth alcohol” from the following:
- Burping and belching
- Periodental disease
- Consumption of Listerine, other types of mouthwash, breath strips, and breath spray
- Usage of some medications, including:
- Cough syrup
- Cold medicine
- Toothache medicine
- Consumption of certain bread products
- Consumption of foods containing liqueurs
- Usage of lip balm
- Usage of smokeless menthol tobacco
- Prescribed use of inhalants, such as salbutamol, salmeterol, and budesonide, which are commonly used to treat asthma
One study estimates that the presence of acetone, for instance, can add a 0.06% BAC reading to any existing alcohol content, or even create a 0.06% BAC reading in someone who has drank no alcohol at all. On the other hand, it is a myth that substances that mask the odor of alcohol affect Breathalyzer results. Eating mints, onions, and garlic may cover up alcohol odors, but will not affect a Breathalyzer reading one way or another. Therefore, while the substances listed above can impact a Breathalyzer test result, substances that merely alter the odor of alcohol will not impact it.
Air and Body Temperatures and Breathalyzer Results
Another outside factor that can significantly alter Breathalyzer test results is temperature, include body temperature and air temperature. Having a fever at the time you undergo a Breathalyzer test can result in inaccurate results, as well. On average, for every 1 degree that your body temperature is above normal, your BAC reading will increase by 8%.
Likewise, an individual’s breathing rate also can have a direct impact on his or her BAC reading, as measured by a Breathalyzer. Vigorous exercise, hyperventilation, or holding one’s breath for only 30 seconds can substantially affect a BAC rate, by as much as 10%.
Finally, weather temperature can affect BAC readings, as well. If the Breathalyzer device is not calibrated or adjusted in order to account for the outdoor temperature, a Breathalyzer test that is administered outdoors may display an incorrect reading.
Radio Frequency Interference (RFI) and Breathalyzer Readings
With any instrument that contains electronic circuitry, including Breathalyzer devices, there is the chance that electromagnetic interference (EMI) from other devices can interfere with the instrument’s readings or results. This phenomenon is perhaps best illustrated by the effect that a microwave can have on a person’s pacemaker.
Other instruments, however, including many instruments commonly found at police stations, such as dispatch radio transmitters, walkie-talkies, cell phones, computers, and even fluorescent lighting can create such interference. As a result, the presence of these instruments can skew Breathalyzer result readings. Again, this type of interference can be the basis for challenging the accuracy of Breathalyzer test results in DUI cases.
Lack of Proper Maintenance and Testing
Another potential flaw in Breathalyzer devices is a lack of routine maintenance and appropriate testing. As highlighted by a recent Oklahoma Supreme Court case, Breathalyzer results may be insufficient to establish DUI where the results may be flawed due to a lack of maintenance or testing standards for the Breathalyzer used in the case. More specifically, the police department involved in the case had no written standards or procedures governing the testing or maintenance of these devices; as a result, the machines were used for about five years without any testing to determine that their readings were still accurate.
Another issue related to the maintenance of Breathalyzer machines is the need to calibrate the devices on a regular basis. If these devices are not regularly maintained and calibrated as needed, the results of an individual’s Breathalyzer test can be inaccurate. Law enforcement officials must maintain accurate records of calibration and maintenance of every Breathalyzer device used. If they fail to do so, then these elements are easily challenged in many DUI cases.
Lack of Training and Officer Inexperience
Police officers should be properly trained in the use of Breathalyzer devices in order to ensure that they are appropriately administered. For example, these devices often need to be calibrated prior to use. An inexperienced officer may fail to properly calibrate or otherwise ready the device before administering a Breathalyzer test during a traffic stop. This improper administration of the test may render results that are simply incorrect.
Be Cautious in Evaluating Breathalyzer Test Results
As these many examples illustrate, Breathalyzer test results can be affected by a wide variety of factors, ranging from environmental factors to medications, from consumption of certain products to operator error. The documented lack of accuracy in Breathalyzer test results can be an integral part of a strong defense to DUI charges. Given the many different circumstances that can affect a BAC reading taken from a Breathalyzer test, there are many alternatives available for challenging the test results. These challenges can lead to grounds to negotiate a lesser charge or penalty, or even to the dismissal of charges in some cases.
A Lawyer Can Help Find False Positive Breathalyzer Readings
Contact the Wilson Law Firm and speak with attorney T. Kevin Wilson, an experienced Northern Virginia DUI defense lawyer. Call toll free at (800) DUI - LWYR or (703) 361-6100 and get your legal questions answered. We will fight hard for your rights. Also, visit our website and download your FREE copy of DUI/DWI Arrest Survival Guide - The Guilt Myth, written by attorney T. Kevin Wilson. Read this book and avoid common mistakes that could hurt your case. Lastly, you can fill out the short form below.
What Happens to My Car and Other Property After a DUI
A DUI arrest comes with many complications. During the arrest itself, your mind will likely be on the big picture: will you go to jail? Will you lose your license? How much will this cost you? But soon after your release, you will have to deal with dozens of smaller factors as well. One of those is getting your car back.
Your car’s fate depends on the circumstances of your arrest. There are three main outcomes, depending on the officers’ attitude and your driving record: they may leave it on the roadside, impound it short term, or impound it long term.
Left on the Roadside
If you have a valid driver’s license at the time of your DUI arrest, the arresting officers have some leeway in how to handle your vehicle. The best case scenario is that they simply leave it on the side of the road where they first arrested you. They may tag or mark it so Highway Patrol knows it has already been dealt with, or they may leave it as-is.
If this is the case, you can ask a trusted friend or loved one to come get it for you. You can also get it yourself once released as long as your temporary license is still valid. But you should act quickly: if it sits there too long, it could be considered abandoned and be towed.
Short Term Impoundment
Alternately, officers can choose to impound your vehicle. This is completely at their discretion. Leaving it on the roadside is the better of the two options, because it costs you nothing. But they may choose to impound it for several reasons:
- They don’t want to deal with calling your friend or relative to come get it.
- They want to search it for evidence. If it’s impounded, they have a right to.
- They want to make your life harder.
This last reason is surprisingly common. It’s usually the result of disrespectful or uncooperative behavior. It’s best to be polite and cooperative with the police, and if you are, they may not impound your vehicle.
If your vehicle is impounded in this manner, you will be able to get it back within a few days. You will have to pay the towing and impound fees, and will need ID to claim it.
Long Term Impoundment
If you were driving on a suspended license, police have little leeway. They have to impound your vehicle. This is true if your license was suspended administratively or as part of a criminal penalty—such as from a previous DUI. If this is the case your car will be impounded for a full 30 days upon your arrest. If you’re convicted, it could be impounded up to 90 more days.
The fees for impoundment are not cheap. They include the cost of towing, which is often $200 or more on its own, plus a per-day fee. The fee varies with location but can easily be $50 or even $70 per day. That can total over $8,000 in four months.
If the car is not yours, there is a ray of hope. The registered owner can come get the car out of the impound lot. But if they knowingly let you use the car without a valid license, they may face criminal charges of their own.
If you have been arrested for DUI, don’t let a conviction deprive you of your car—or cost you thousands. Call The Wilson Law Firm and get a free consultation today.
What Should I Do After A DUI?
The good news: by doing the research you are doing right now, you have already started putting yourself in a better position to defend your DUI charges. In addition to retrieving information from valuable sources, The Wilson Law Firm submits the following suggestions in preparation for your pending case:
Document the situation to the best of your ability.
Your case will likely not be resolved in court for another 30 to 90 days and the chances that you will forget certain potentially important details is high. That is why It is important to document as many details as possible while the incident is still fresh in your mind. Every detail in your case has the potential to be important.
Be sure to include details surrounding events leading up to the actual arrest, including your meals eaten that day. Your food consumption and beverage intake during the period before the arrest may impact your Blood Alcohol Content (BAC). Also remember to include names of any witnesses and check with them to see what, if anything, they might be able to add to your recollection.
Consult with an experienced DUI firm.
If you have discussed your situation with anyone, it is likely they know someone who has been convicted of DUI and they want to tell you all about it. Your mailbox is probably flooded with advertisements from different attorneys. When you ask for information on a DUI charge, a Google search routinely delivers millions of results.
With all of these available sources of information, it is possible that you have actually come across some misinformation about DUI defense. Take some time to contact an experienced Virginia DUI firm so you can rid yourself of misinformation and get any remaining questions answered accurately.
Pre-enroll in VASAP.
Anyone convicted of an alcohol-related driving offense in the state of Virginia will be required to complete Virginia Alcohol Safety Action Program (VASAP). VASAP is a system of educational programs organized and operated by the state to “improve highway safety by decreasing the incidence of driving under the influence of alcohol and other drugs.”
Once you are arrested for a DUI, your information is automatically transmitted to VASAP. You will have the option, in most jurisdictions, to pre-enroll in the program. We recommend that you do this as it shows the courts you have taken the initiative to put yourself in a better position relating to your pending case.
Pre-enrolling in VASAP is not an admission of guilt. VASAP can help your case by providing positive feedback as to your admittance and attendance in the program.
Obtain a copy of your driving record.
A copy of your driving record covering ten (10) years of driving history provides much needed background information. The state will obtain this information and we will need to know what they are going to see to be prepared. If you have had a license in different states over the past ten years, contact each state’s DMV to obtain the necessary history. Most states allow you to request the report online, although some may require that you call to make the request.
Gather all commendations to help your defense.
Awards, certificates, letters of recommendation and proof of military status can have an impact on potential plea negotiations. Understanding who you are and from where you came can help to build a strong defense to get the charges against you reduced or dismissed entirely.
Contact a Virginia DUI Defense Attorney Today
For more information about DUI defense, call The Wilson Law Firm at (571) 364-6693 to speak with a qualified attorney today. We can educate you about Virginia DUI laws and help you take the appropriate steps toward an effective defense.
What Is Considered Drugged Reckless Driving In Virginia?
Most people associate DUI with drunk driving, but few people realize that drugged driving is just as serious. A conviction of driving while under the influence of drugs (DUID) in Virginia can lead to an array of consequences that can seriously impact your life.
You may have little understanding of the laws and procedures of the criminal justice system when it comes to DUID, and being arrested and charged is an stressful experience. Consulting with an experienced attorney will help to ease the pressure you are under by:
- Thoroughly investigating your case.
- Providing you with a strategic defense.
- Taking action to reduce your charges and penalties or even get your case dismissed entirely.
When arrested for DUID, you need the legal advice and guidance of an experienced DUI attorney who understands the complexities of DUID, which combines science with law. The Wilson Law Firm serves clients throughout the state of Virginia by providing results-oriented legal services to make a difference in the outcome of your case.
Virginia Drugged Driving Laws
Under Virginia law, it is unlawful for anyone to drive or operate a motor vehicle while under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs that impairs his or her ability to do so.
You can, therefore, be charged with a DUID if impaired by a street drug, prescription drug, or even an over-the-counter drug or a combination of these types of drugs found in a blood sample. A doctor’s valid written prescription is no defense if your driving was observably impaired. Many prescription drugs as well as over-the-counter drugs affect the nervous system, motor skills, and judgment. For example, cough syrups, allergy or cold medicines, and sleep aids are known to cause drowsiness that can affect one’s driving.
Virginia law also provides “per se” drugged driving violations, and the following specific drug amounts found in your blood while driving constitute a DUID:
- 0.02 mg of cocaine per liter of blood
- mg of methamphetamine per liter of blood
- mg of phencyclidine (a synthetic compound found in hallucinogens) per liter of blood
- mg of 3, 4, methylenedioxymethamphetamine (MDMA known as Ecstasy) per liter of blood
For all other drugs, including marijuana, specific DUID amounts are not addressed under Virginia law.
Call Us For Experienced DUID Legal Representation in Virginia
Nabbed for drugged driving in VA? Understand what the law prescribes and how a Virginia drugged driving lawyer can defend you.The attorneys at the Wilson Law Firm provide personalized service that is highly responsive to your needs along with proven experience and professionalism. Contact us to schedule your free consultation today – 24/7 availability. Call today.
What Does the VA DMV Do After a DUI?
If you are arrested for drunk driving, you will not only need to attend a court hearing but you will also be subject to administrative action by the Virginia Dept. of Motor Vehicles (DMV). The DMV actually plays a major role in determining when, or if, you can get your driver’s license back and what you must do in order for your license to be reinstated.
Many people who are arrested for impaired driving are surprised to find themselves coping with an administrative license suspension by the DMV. Others may not know how to navigate the agency requirements for reinstating a suspended license or getting a hardship license.
It is important to understand your rights and to be prepared for actions the Virginia DMV will take against you. The Wilson Law Firm can represent you both in your court proceedings and in administrative processes involving the DMV. Call or contact us online today to learn more.
Drunk Driving Triggers Action by the VA DMV
While you may be concerned that a judge is going to order a suspended license if you are convicted of drunk driving, the DMV is actually the first to act. As soon as you are arrested for impaired driving, the Department of Motor Vehicles will suspend your license. Depending upon whether you have any prior offenses, this administrative license suspension can remain in effect until your court trial at which time your license may be revoked for a period of time.
The DMV has imposed reinstatement requirements for getting driving privileges back after your license has been revoked or suspended. According to the Virginia DMV, there are a variety of requirements that you may need to fulfill before the agency will give back your license. Requirements may include:
- Providing the DMV with proof that all fines and court costs have been paid
- Providing the DMV with an SR22 or FR44 Certificate of Insurance from a licensed insurer in the state of Virginia
- Providing proof of successful completion of the Virginia Alcohol and Safety Program
- Completing an intervention interview with VASAP
- Providing proof that fees owed to the local regional jail or correctional facility have been paid
- Paying DMV reinstatement fees, which can range from $40 to $220
- Providing a court order demonstrating that restricted driving privileges are permitted
The DMV provides a Compliance Summary and Driver Transcript with information on the specific requirements that you must fulfill in order for your license to be reinstated.
Contact Us for a Free Consultation
At The Wilson Law Firm, our experienced Virginia DUI lawyers are not only prepared to represent you in court but we can also help you in navigating the DMV maze. From fighting an administrative suspension to getting your license reinstated, our attorneys will do everything that we can to help you protect your right to drive.
To learn more about how we can help you with the Virginia DMV, contact us today to speak with a member of our legal team.
Can Problems with Police Procedure Get Your DUI Charge Dropped?
As Virginia DUI lawyers, we often meet with clients who believe the case against them is unbeatable—that they will be convicted of DUI no matter what. In many cases that isn’t true, even if the evidence against them is strong. To prove that point, one of the first things we look at is police procedure. If the police didn’t follow the rules, your rights were violated. The entire DUI case could be dropped or key evidence could be suppressed.
Police can make mistakes at any of stage of the process: the initial traffic stop, talking to you on the roadside, or during the arrest.
The Traffic Stop
Police cannot just stop any vehicle for no reason. There are rules around who they can stop and why. In particular, these rules exist to prevent discrimination and to avoid harassing law abiding citizens.
Generally, police cannot pull over a vehicle unless they have some reason to believe a crime has been committed. For example, if they see you run a stop sign, they witnessed the law being broken and can pull you over. Or if they see you swerve, they might reasonably suppose you’re drunk or distracted. But they cannot pull you over just because you “look suspicious.” The reason for pulling you over should be noted in their report and lack of probable cause could get a DUI charge thrown out.
The exception to this is DUI roadblocks (“checkpoints”). At a roadblock they do not need probably cause because they screen all traffic equally, without bias.
Once the police pull you over they will ask you for your license and registration, which you have to provide them. They will also look around and ask you questions. They’re trying to determine whether there are signs of alcohol, drugs, or any other broken law. But there are limits:
- They cannot search your vehicle unless they have a warrant, or you consent.
- They can ask you to take field sobriety tests (like balancing on a line) but you are not required to comply.
- They can ask you to take a PAS (roadside Breathalyzer test) but you are not required to comply if you haven’t been arrested.
Misleading you on any of these points, or forcing you, is a violation of your rights and could lead to evidence being censored.
Plus, as we’ve covered before, squad cars outfitted with video cameras are supposed to use them—with audio on—and failing to do so can get your charges dropped.
When the police arrest you they must read you your Miranda rights. This is the famous “right to remain silent” talk. If they don’t, once again your entire case could be challenged.
After the arrest, you are legally obligated to submit to a blood alcohol test. This can be a blood, breath or urine test. Refusing it is a crime in its own right. However, police are supposed to inform you of this when asking you to take the test. If they did not explain that refusing is a crime, the charge of refusal could be dismissed.
The only way to take advantage of these violations is to understand due process and your legal rights. That’s where your DUI lawyer comes in. If you’ve been arrested for DUI in Virginia, contact us and get a free case review today.
What Does "Rising BAC" Mean in a DUI Case?
Recently we discussed the mouth alcohol defense, Breathalyzera defense that’s used when trace amounts of alcohol in the mouth throw off a breath test. But breath tests aren’t the only kind of chemical test that police use in DUI cases, and some factors can fool all of them across the board. One of the most serious is “rising BAC.”
What is Rising BAC?
Rising alcohol refers to the fact that your blood alcohol concentration (BAC) continues to go up long after you had your last drink. BAC is the truest measure of how intoxicated you are, because it measures the actual amount alcohol in your bloodstream, not just how many drinks you consumed or when. Different individuals can feel very different in terms of inebriation after having, say, three drinks each. But two individuals with the same BAC will experience a nearly identical level of impairment.
“Impairment” here is the key word. The law says you cannot drive if you are impaired by alcohol, and the threshold is set at .08% BAC. If you’re pulled over and have your BAC tested immediately, then — if done properly — the result should be a very accurate measure of how impaired you are.
But what if the test isn’t done until hours later?
Common sense would tell us that you would be less drunk, i.e., you’d have a lower BAC. But that’s not the case. Instead, BAC continues to rise for hours after you stop drinking, because it takes time for your body to absorb all of the alcohol. The result: you could be within the legal limit while driving, get arrested for DUI, and be over the limit by the time they finally test you.
Rising BAC as a DUI Defense
Judges don’t always like the rising BAC defense. This is partly because it’s hard to prove, and partly because law enforcement can’t always issue a proper blood or breath test immediately. They may have to take other calls before getting you back to the station, or may need time to get the equipment ready before they test you. In some cases, the jail facility is simply busy.
However, the science is clear that delaying a blood or breath test can cause an unfairly high BAC result. And there are plenty of cases where rising BAC has been enough to give a jury reasonable doubt and lead to an acquittal, or simply get a favorable offer from a prosecutor. Generally, the defense works best if your tested BAC was close to the legal limit, and if there was a clear, documented delay of an hour or more before you were tested.
Could rising BAC have affected your case? If so, you may have a strong defense against your DUI charge. Let the experienced DUI attorneys of The Wilson Law Firm help you with that defense.
Can I get my blood result before my DUI trial?
In most Virginia DUI / DWI cases, the breath or blood of the accused is taken and analyzed in an attempt to come up with an estimated breath / blood alcohol concentration. If the accused blows into a breath testing machine, it will immediately print a certificate with a number on it which represents the estimated breath alcohol concentration of the accused at that time. On the other hand, if the case is one in which a blood sample was taken instead of a breath sample, the blood sample must be sent to the state laboaratory for analysis. Once the analysis is completed, a certificate reflecting the estimated blood alcohol concentration (BAC) is returned to the Court. When done properly, blood alcohol testing is more reliable than breath alcohol testing, but it can take weeks or even months to get the certificate from the state lab. In fact, it is common for the government / prosecution not to have the blood test result on the first court date - which often results in those cases being continued / delayed to allow additional time to get the BAC estimate from the lab. Eventually the analysis will be completed and the BAC estimate will be filed with the Court. Once that has happened, a copy of it can be obtained by the accused or counsel for the accused.
If you have been accused of a DUI / DWI in Virginia and would like to know more about DUI / DWI law in Virginia, the punishments for DUI / DWI in Virginia or some of our amazing DUI / DWI victories, give us a call at 703-361-6100 and we'll be happy to discuss your situation with you in more detail.