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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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.
Do you have to sign a traffic ticket in Virginia?
Yes, not only can you be arrested in Virginia for refusing to sign a summons, in fact you will be arrested for refusing to sign a summons in Virginia. Pursuant to Virginia law, officers are permitted, and in some situations required, to issue a summons to an alleged offender and then release the accused instead of taking the accused into custody and transporting him / her to jail. However, in order to be released without being taken into custody, the alleged offender must sign the summons as an indication of the promise to appear in court at the date and time noted on the summons. If the alleged offender refuses to sign the summons, Virginia law requires the officer to take the alleged offender into custody.
If you have been issued a summons, or were arrested and taken into custody, and are accused of a DUI / DWI, Criminal or Traffic violation and would like to speak with a Virginia DUI / DWI, Criminal & Traffic Defense Lawyer, call The Wilson Law Firm at 703-361-6100 and we'll be happy to discuss your situation with you in more detail.
Can police arrest without a warrant in Virginia?
In some situations, Virginia law permits officers to make an arrest in Virginia without having obtained an arrest warrant, and in other situations Virginia law prohibits doing so. The law in Virginia regarding the circumstances under which law enforcement officers can lawfully effect an arrest without having an arrest warrant in hand is a bit complicated.
In order to comply with the United States Constitution, all arrests require an officer to have probable cause to believe a specific person committed a specific offense. Assuming an officer has the required probable cause, Virginia law allows officers to arrest for felony offenses even though an arrest warrant has not yet been obtained. Felony offenses are more serious offenses and it makes sense to allow officers to go ahead and make an arrest, rather than having to take the time to go get a warrant and then return to make the arrest.
However, the rules are different in Virginia for misdemeanor offenses. As a general rule, officers in Virginia are not permitted to make arrests for misdemeanor offenses which did not occur in their presence. However, whenever you see the term "general rule" it indicates there are exceptions to that rule, and the same is true here. There are certain situations in which Virginia law allows officers to make an arrest for misdemeanor offenses, without first obtaining an arrest warrant, even though the offense did not occur in the officer's presence. Although there are more, a few of those misdemeanor offenses are: driving under the influence (DUI / DWI), boating under the influence, shoplifting, carrying a prohibited weapon on school property, assault and battery, and brandishing a firearm.
Get Help Defending Against Your Virginia Arrest Charge
If you have been arrested in Virginia, an attorney can help defend you possibly getting your charges reduced or dropped. Contact The Wilson Law Frm today for a free consultation.
Are police required to make an arrest when in an Assault and Battery case?
When police respond to a report of any crime, whether it is an Assault and Battery, Drug Possession, Burglary, Rape, Murder or any other offense, the police investigate the alleged criminal activity in an attempt to determine whether they think the evidence amounts to probable cause to believe a particular person committed a particular offense. If the opinion of the police is that there is probable cause to believe a certain person committed an offense, then the facts and circumstances of the alleged offense dictate the next step taken by police.
In some cases police can take a person into custody even though they do not yet have a warrant. In other cases police are not permitted to make an arrest without a warrant so the officer must either go get an arrest warrant and return to arrest the person or persuade the accused to voluntarily accompany the police to the station to be served with the warrant. For some this is an attractive option becasuse it avoids the embarrassment and disruption of having the police return to make the arrest at a later time which is almost certainly going to be less convenient.
Although the normal rule under Virginia law is that officers should not make warrantless arrests for misdemeanor offenses which were not committed in the presence of the officer, the crimes of Assault and Battery (A&B) and Assault and Battery of a Family or Household Member (Domestic A&B) are exceptions to that general rule and Virginia law allows officers to do so. In fact, Virginia law says that in most cases if an officer has probable cause to believe a Domestic A&B has occurred, the officer "shall arrest and take into custody the...predominant physical aggressor." Therefore, officers in Virginia are not required to make an arrest if investigation reveals that an Assault and Battery has occurred, but if the Assault and Battery was against a family or household member then Virginia law does require officers to arrest the "predominant physical aggressor."
Arrested For Assualt and Batttery?
If you have been issued a summons, or were arrested and taken into custody, and are accused of an Assault and Battery, a Domestic Assault and Battery against a Family or Household Member, or any other Criminal, DUI / DWI or Traffic offense and would like to speak with a Virginia Criminal, DUI / DWI & Traffic Defense Lawyer, call The Wilson Law Firm at 703-361-6100 and we'll be happy to discuss your situation with you in more detail You can also download our free book The DUI/DWI Arrest Survival Guide! or start a chat right now
Can a misdemeanor be removed from my Virginia record?
In Virginia, records relating to convictions cannot be expunged / removed from a person's criminal record. However, in some circumstances records relating to arrests for offenses which did not result in conviction can be expunged. Whether records relating to arrests for offenses which were subsequently dismissed can be expunged in Virginia depends on the facts and circumstances of the case. Some of the factors which come into play in Virginia are whether the arrest was for a misdemeanor or a felony, what exactly happened in court, whether the person has a criminal history, and whether the continued presence of the arrest record could cause unfair problems for the person.
If the person does not have a criminal record and the arrest was for a misdemeanor, Virginia law allows for expungement and if the government opposes it the burden is on the government to prove why the expungement should not be granted. However, if the person has a criminal record and / or the arrest was for a felony offense, then Virginia law says the person seeking the expungement has to prove why the expungement should be granted. Essentially, the petitioner must prove the continued existence of the records relating to the arrest is unfair and creates an undue hardship - the term used in the statute is "manifest injustice."
Our Attorneys Can Help With Your Virginia Misdemeanor Expungement
If you have a Virginia arrest for a charge which was later dismissed on your criminal record and you would like to have the Virginia arrest removed / expunged from your record, call The Wilson Law Firm at 703-361-6100 and we'll be happy to discuss the situation with you in more detail.
Can I be taken to jail at a pre-trial hearing for DUI?
Yes, in Virginia a person can be arrested and taken to jail at any time, including at a pre-trial hearing, if there is a legally valid reason to do so. After being arrested and accused of committing an offense, a trial date will eventually be selected. Depending on the type of case, there may be several court appearances for hearings which take place prior to the actual trial. These are referred to as "pre-trial hearings", and there are many reasons a person might be arrested at a pre-trial hearing. For example, a person might have violated the terms and conditions of release; there may be an outstanding arrest warrant; the person might come to court under the influence of alcohol or drugs; the person might break the law by bringing illegal substances to court or getting involved in a fight at the courthouse; the person may behave in an unruly manner, etc. Yes, a person can be arrested at a pre-trial hearing, but there has to be a valid reason to do so.
Were You Or A Family Member Arrested At A Pre-Trial Hearing?
If you have been arrested and accused of a DUI / DWI, Criminal or Traffic violation and would like to speak with a Virginia DUI / DWI, Criminal & Traffic Defense Lawyer, call The Wilson Law Firm at 703-361-6100 and we'll be happy to discuss your situation with you in more detail.
Can I expunge my Virginia criminal conviction (sex, drugs, violence, theft, property, etc.)?
Virginia does not allow for expungement of convictions of any type - whether misdemeanor or felony. The ability to expunge / remove entries from a criminal record in Virginia is limited to entries relating to offenses which were eventually dismissed - and only some of those qualify.
Generally speaking, in Virginia, records relating to misdemeanor offenses which were dismissed may be expunged if the person seeking expungement does not have any criminal record unless the government convinces the Court there is a good reason the request for expungement should not be granted. On the other hand, if the person seeking expungement has a criminal record or the records which the person is asking to be removed relate to a felony offense, the burden is on the person seeking expungement to prove to the Court that the continued presence of the information is unfair - the term used in the law is that it would be a "manifest injustice" to the person.
If you would like to speak with someone about the possibility of seeking an expungement of certain records, call The Wilson Law Firm at 703-361-6100 and we'll be happy to discuss your situation with you in more detail.
Can I expunge my Virginia DUI conviction?
Virginia does not allow for expungement of DUI convictions. In fact, Virginia does not allow expungement of any convictions. Expungement proceedings in Virginia are limited to records relating to offenses which were eventually dismissed - and only some of those are eligible for expungement.
If you have entries on your criminal record which you would like to have expunged and you would like to speak with a Virginia Criminal, DUI / DWI & Traffic Defense Lawyer to learn whether Virginia law will allow it, call The Wilson Law Firm at 703-361-6100 and we'll be happy to discuss your situation with you in more detail.
Can I expunge my Reckless Driving conviction?
Generally speaking, in Virginia, records relating to misdemeanor offenses which were dismissed may be expunged if the person accused does not have any criminal record unless the government convinces the court there is a good reason to not do so. However, in Virginia, in order to be granted expungement of records relating to felony offenses which were dismissed the burden is on the person seeking expungement to prove to the court that the continued presence of the information will cause prejudice.
Does the Virginia Department of Motor Vehicles (DMV) assess demerit points for accidents?
No. Demerit points are not assessed by the Virginia DMV simply for being involved in an accident. The Virginia DMV assesses demerit points after receiving notice of a conviction for a moving violation. The amount of demerit points assessed for any particular moving violation depends on the severity of the violation.
Moving violations in Virginia are divided into 3 point offenses, 4 point offenses and 6 point offenses. Virginia does not have 1 point, 2 point or 5 point offenses. If you are involved in an accident but not cited for any violation, demerit points will not be assessed by the Virginia DMV. However, if as a result of the accident you are accused, and eventually convicted of a moving violation such as Reckless Driving, Following Too Closely, Failure to Yield, etc., the Virginia DMV will assess demerit points for the specific moving violation.
If you have been issued a summons, or were arrested and taken into custody, and are accused of a DUI / DWI, Criminal or Traffic violation and would like to speak with a Virginia DUI / DWI, Criminal & Traffic Defense Lawyer, call The Wilson Law Firm at 703-361-6100 and we'll be happy to discuss your situation with you in more detail.
If I am licensed in Virginia and my privilege to drive is suspended in another state, can I continue to drive in Virginia?
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.
Contact a Traffic Law Attorney If Your License Is 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 703-361-6100 and we'll be happy to discuss your situation with you in more detail.
If am licensed in another state and my privilege to drive in Virginia is suspended, can I continue to drive in the state in which I am licensed?
This is a question which needs to be answered by a lawyer licensed to practice in your home state, but it makes sense to me that the answer would be- yes, at least temporarily. Virginia courts can only take away the ability to drive in Virginia. If you have a license issued by another state and your privilege to drive in Virginia is suspended, your license is still valid and you may continue to drive everywhere except Virginia - until you are notified that your home licensing state has taken some action against your license.
What does "released on summons" mean?
Many people equate being arrested with being taken into custody, but in Virginia after a person is arrested, the police make a decision regarding whether to take the person into custody and transport the person to jail or give the person a ticket / summons and let the person go. What people call a ticket in Virginia is actually a Virginia Uniform Summons and it is an official document which provides notice to someone that he or she has been accused of a specific offense and provides information about the date and time the matter will be heard by a Court.
In certain situations, Virginia law allows officers to give someone a ticket / summons, rather than taking the person into custody. When this happens, the person is said to have been "released on a summons." For example, if you have ever been stopped by police and given a ticket for Speeding, Disregarding a Stop Sign or some other traffic infraction, you may not have even realized it, but you were arrested and released on a summons. Most times when someone is released on summons it is due to a misdemeanor charge.
We Represent Those Charged in Virginia
If you have been issued a ticket / summons and are accused of DUI / DWI 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 703-361-6100 and we'll be happy to discuss your situation with you in more detail. You can also fill out a contact form here and we will be in touch with you shortly.
Can any Virginia lawyer claim to practice Criminal Defense or is some level of expertise required?
Many Virginia lawyers will be upset with me for revealing this to you, but you deserve to know the truth. In Virginia, any lawyer can advertise and hold himself / herself out to the public as a Criminal Defense Attorney as long as the lawyer can handle a criminal case with a minimal degree of competence. In Virginia, no level of experience or expertise is required. There is no test a lawyer must pass or certification processes a lawyer must complete before the lawyer can claim to practice in a particular area of law. To put it in perspective, essentially all that is required is for the lawyer to be able to provide D+ representation - because that's all it takes to pass.
To illustrate this point further, consider the following: even though I have never handled a medical malpractice case, I could advertise and market myself as a medical malpractice lawyer - as long as I learned enough about it to be barely competent to handle the case. Of course, not being an expert in that field, one would expect the representation to fall well short of being top-notch and it is highly unlikely that the case would end up with the best possible result for the client. But as long as I can be minimally competent at medical malpractice, I am able to claim to be a medical malpractice lawyer.
So don't be fooled. The fact that a lawyer advertises and claims to be a Virginia DUI / DWI or Criminal Defense Lawyer does not mean the lawyer has any education, training or expertise in that area of law. Being a "jack of all trades and master of none" lawyer, who dabbles in several areas of the law and excels in none of them, is allowed in Virginia - and is quite common. Since you probably don't want to end up with that kind of lawyer, it is up to you to do your homework so you can separate those lawyers who have some expertise in DUI / DWI & Criminal Defense from those who dabble in several areas of law. After all, it's your life, your freedom and your future that is on the line, and you need a "master" lawyer instead of the "jack of all trades and master of none" lawyer.
If you have been charged with a DUI / DWI, Criminal or Traffic offense in Virginia and the outcome of the case is important to you, The Wilson Law Firm may be just the firm you need. The Wilson Law Firm is focused on helping clients accused of DUI / DWI, Criminal and Traffic offenses all across Virginia. The Wilson Law Firm has successfully handled thousands of DUI / DWI, Criminal and Traffic cases all across Virginia - and we would love to help you, too. Call us now at 703-361-6100 or 540-347-4944.
I've been arrested and accused of a crime and I have to go to court for an arraignment. What should I expect at an arraignment in Virginia?
The term arraignment is a general criminal law term which means different things in different states, and even means different things in different courts within a given state.
What an Arraignment Means in Virginia
Procedurally, in Virginia the term "arraignment" is commonly used to refer to the first appearance an accused will make before the Court. If the accused is held in jail after being arrested, the arraignment in Virginia (first appearance) usually takes place the next day the court is open. In some jurisdictions, the inmates are brought over to the courthouse for the arraignment, and more commonly arraignments are being done via video conferencing with the inmates remaining at the jail. On the other hand, if the accused is released from custody, by being released on his or her own recognizance, by posting bail or by using the services of a bail bond agent, the arraignment is typically scheduled for several days later.
Substantively, this sort of first appearance arraignment in Virginia is a brief administrative hearing at which the Court will typically:
- inform the accused of the allegation / accusation
- make sure the accused understands the allegation / accusation
- inform the accused of the right to be represented by a lawyer
- ask whether the accused plans to hire an attorney of his / her own choosing, request the court to appoint the Public Defender or a private court appointed attorney, or proceed without the assistance of an attorney
- inform the accused of the next court date
In many Virginia Circuit Courts the term arraignment is used in the more formal sense to describe the stage of a criminal case at which the accused is formally advised of the charge and asked to enter either a guilty or not guilty plea. In some Virginia jurisdictions, this arraignment process occurs immediately before the trial is scheduled to begin, and in other Virginia jurisdictions it happens much earlier in the process and further proceedings are scheduled depending upon the particular plea which is entered by the accused.
We Represent You in Court
If you have been accused of a DUI / DWI, Criminal or Traffic offense in Virginia and have a question about an arraignment or some other aspect of your case, call The Wilson Law Firm at 703-361-6100 or 540-347-4944 and our knowledgeable, experienced and successful Virginia DUI / DWI, Criminal & Traffic Defense Lawyer(s) will be happy to discuss the arraignment process and other matters of Virginia DUI / DWI, Criminal & Traffic defense with you in more detail. You can have our firm call you by filling out a contact form on this page.
What happens after a suspect is arrested and taken into custody by police in Virginia?
In Virginia, after someone is arrested and taken into custody by police / law enforcement, the suspect is typically transported to a jail where he or she will appear before a magistrate who will make a determination about whether the suspect can be released from confinement pending trial, and if so, on what conditions.
The magistrate will consider many things when making this decision, but they fall into two broad categories - the degree to which the person presents a danger to the public and the degree to which the person is a flight risk. Essentially, the magistrate tries to determine (1) whether the accused will get in more trouble while awaiting trial if released and (2) whether the accused will come back to court for the trial if released. If the magistrate believes the accused presents a low risk of getting in more trouble and is likely to return for the trial, then the accused will likely have the opportunity to be releaed from jail pending the trial.
If the magistrate decides an accused does not need to be held in jail pending trial, the magistrate will come up with a set of conditions which must be met in order to be released. The accused may be released with nothing more than a signature promising to appear for the trial. This is commonly referred to as PR - personal recognizance. The person may be released on an unsecured monetary bond, which means no money has to be paid at that time, but if the accused violates the conditions of release he or she owes the amount of the bond. In this situation you may hear a court say a $500 unsecured bond. As charges become more serious, magistrates utilize secured monetary bond. You may hear a court say $5,000 cash or corporate surety bond. In this scenario, the accused must either pay the entire amount of the bond to the Court or utilize the services of a bail bonding agent. Bail bonding agencies typically charge a fee of about 10% of the total bond and then assume responsibility for making sure the accused comes to court when required to do so.
If you or someone you know has been arrested and accused of a DUI / DWI, Criminal or Traffic Offense in Virginia, and you have questions about the process to get released from jail, or any other matter relating to the case, call The Wilson Law Firm now at 703-361-6100 or 540-347-4944 and a knowledgeable, experienced and successful DUI / DWI, Criminal & Traffic Defense Lawyer will be happy to discuss these matters with you in more detail.
If I am arrested and taken to jail, do I have to stay in jail until my trial or can I get released before trial?
Whether an accused is held in jail or released pending trial in a Virginia DUI / DWI or other Criminal case depends on many factors, including the facts and circumstances of the particular case, any criminal record of the accused, whether there is a statutory presumption against granting bond, how far away the trial date will be scheduled and of course, the particular lawyer representing the accused. The lawyer you choose can be the difference in the outcome of your case.
In Virginia, the decision whether or not to release an accused from custody pending trial is initially made by a magistrate. The magistrate will consider many things in an attempt to determine the degree to which the person presents a risk to the public and a risk of flight, and will then make a decision to hold the accused in jail or release the accused on certian conditions.
However, even if the magistrate decides to hold the accused in jail at that time, a Virginia DUI / DWI & Criminal Defense Lawyer can file a motion (the lawyer word for "request") with the Court asking the Court to hold a hearing (commonly referred to as a Bond Hearing) to review the matter and make an independent decision. At that hearing, the Virginia DUI / DWI Criminal Defense Lawyer will present evidence and arguments designed to persuade the Court that the accused is not an unreasonable risk to the public or of flight so a bond should be granted. The prosecuting attorney is generally present at these bond hearings and will argue for whatever position he/she believes is in the best interest of the government and the public. In some cases, the Virginia DUI / DWI & Criminal Defense Lawyer and the prosecuting attorney can reach an agreement regarding an appropriate bond, and when that happens the Court will often times sign off on that agreement. At the conclusion of the Bond Hearing, the court will announce a ruling (decision) regarding whether the accused can be released from incarceration pending trial, and if so, on what conditions.
If you have questions about pre-trial detention, bond hearings or some other matter relating to Virginia DUI / DWI, Criminal & Traffic Defense, call The Wilson Law Firm now at 703-361-6100 or 540-347-4944 and a knowledgeable, experienced and successful Virginia Criminal Defense Lawyer will be happy to discuss these matters with you in more detail.
What factors do Virginia magistrates look to when deciding whether to release someone from pre-trial incarceration, and if so, on what conditions?
In Virginia, magistrates and judges look to a variety of factors when determining whether an accused should be released from pre-trial confinement, and if so, on what conditions. These factors are set out in Section 19.2-120 of the Virginia Code (set out below) and include the nature and circumstances of the alleged offense, the history and characteristics of the accused including character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, any drug or alcohol abuse, criminal history, membership in a criminal street gang and record of appearance at court proceedings.
However, the two major concerns of Virginia magistrates and Virginia judges are the risk of flight and the danger to the public. In fact, section 19.2-120 of Virginia Code indicates people held in custody pending trial shall be admitted to bail, unless there is probable cause to believe:
· The accused will not appear in court when directed to do so, or
· Releasing the accused presents an unreasonable risk to the accused or the public
This same section of the Virginia law relating to Admission to Bail goes on to say magistrates and judges in Virginia shall presume that if the accused is alleged to have committed certain offenses, then no combination of conditions will reasonably assure the appearance of the accused in a Virginia court or reasonably protect the safety of the public. Essentially, this means that if an accused is suspected of committing one of the enumerated offenses in Virginia, the magistrate should hold the accused without bond, and the Virginia Criminal Defense Lawyer will be fighting an uphill battle when trying to persuade the Virginia judge to allow the accused to be released on certain conditions.
The offenses for which the law in Virginia mandates an initial presumption against release on bond are quite serious offenses. They include certain violent offenses, offenses for which the maximum sentence if life imprisonment or death, certain drug offenses, certain firearm offenses, felony offenses if there are certain other convictions in the person’s history, felony offenses committed while the person is out on bond for another offense, and certain sex offenses, certain offenses involving child pornography and soliciting children, certain offenses involving criminal street gangs, certain DUI offenses, certain protective order violations, and Assault and Battery against a family or household member. (See below)
If you or someone you know has been arrested and is facing DUI / DWI Charges, or any other Criminal Charges, call The Wilson Law Firm now at 703-361-6100 or 540-347-4944 and a knowledgeable, experienced and successful Virginia Criminal Defense Lawyer will be happy to discuss these matters with you in more detail.
§ 19.2-120. Admission to bail.
Prior to conducting any hearing on the issue of bail, release or detention, the judicial officer shall, to the extent feasible, obtain the person's criminal history.
A. A person who is held in custody pending trial or hearing for an offense, civil or criminal contempt, or otherwise shall be admitted to bail by a judicial officer, unless there is probable cause to believe that:
1. He will not appear for trial or hearing or at such other time and place as may be directed, or
2. His liberty will constitute an unreasonable danger to himself or the public.
B. The judicial officer shall presume, subject to rebuttal, that no condition or combination of conditions will reasonably assure the appearance of the person or the safety of the public if the person is currently charged with:
1. An act of violence as defined in § 19.2-297.1;
2. An offense for which the maximum sentence is life imprisonment or death;
3. A violation of § 18.2-248, 18.2-248.01, 18.2-255, or 18.2-255.2 involving a Schedule I or II controlled substance if (i) the maximum term of imprisonment is 10 years or more and the person was previously convicted of a like offense or (ii) the person was previously convicted as a "drug kingpin" as defined in § 18.2-248;
5. Any felony, if the person has been convicted of two or more offenses described in subdivision 1 or 2, whether under the laws of the Commonwealth or substantially similar laws of the United States;
6. Any felony committed while the person is on release pending trial for a prior felony under federal or state law or on release pending imposition or execution of sentence or appeal of sentence or conviction;
7. An offense listed in subsection B of § 18.2-67.5:2 and the person had previously been convicted of an offense listed in § 18.2-67.5:2 or a substantially similar offense under the laws of any state or the United States and the judicial officer finds probable cause to believe that the person who is currently charged with one of these offenses committed the offense charged;
8. A violation of § 18.2-374.1 or 18.2-374.3 where the offender has reason to believe that the solicited person is under 15 years of age and the offender is at least five years older than the solicited person;
10. A violation of § 18.2-36.1, 18.2-51.4, 18.2-266, or 46.2-341.24 and the person has, within the past five years of the instant offense, been convicted three times on different dates of a violation of any combination of these Code sections, or any ordinance of any county, city, or town or the laws of any other state or of the United States substantially similar thereto, and has been at liberty between each conviction;
11. A second or subsequent violation of § 16.1-253.2 or a substantially similar offense under the laws of any state or the United States; or
12. A violation of subsection B of § 18.2-57.2.
C. The judicial officer shall presume, subject to rebuttal, that no condition or combination of conditions will reasonably assure the appearance of the person or the safety of the public if the person is being arrested pursuant to § 19.2-81.6.
D. The court shall consider the following factors and such others as it deems appropriate in determining, for the purpose of rebuttal of the presumption against bail described in subsection B, whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of the public:
1. The nature and circumstances of the offense charged;
2. The history and characteristics of the person, including his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, membership in a criminal street gang as defined in § 18.2-46.1, and record concerning appearance at court proceedings; and
3. The nature and seriousness of the danger to any person or the community that would be posed by the person's release.
E. The judicial officer shall inform the person of his right to appeal from the order denying bail or fixing terms of bond or recognizance consistent with § 19.2-124.
(1975, c. 495; 1978, c. 755; 1979, c. 649; 1987, c. 390; 1991, c. 581; 1993, c. 636; 1996, c. 973; 1997, cc. 6, 476; 1999, cc. 829, 846; 2000, c. 797; 2002, cc. 588, 623; 2004, cc. 308, 360, 406, 412, 461, 819, 954, 959; 2005, c. 132; 2006, c. 504; 2007, cc. 134, 386, 745, 923; 2008, c. 596.)