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 I refuse to answer a police officer’s questions if I’m stopped for drunk driving?
You face a dilemma. On the one hand, you are afraid to answer the police officer’s questions for fear that anything that you say will be misconstrued and used against you. On the other hand, you don’t want to be rude to a law enforcement official and risk making that official angry.
You’ve likely watched enough TV shows and movies to know that you are in a tough spot, but there are things that you can do to protect your rights.
How to Answer a Police Officer Who Stops You for Drunk Driving
If the police officer asks if you have been drinking and you answer the question, then you may be incriminating yourself. In doing so you may be giving up your constitutional rights. The Fifth Amendment to the United States Constitution provides that no one “…shall be compelled in any criminal case to be a witness against himself…” This means that you do not have to offer the police evidence that you committed a crime.
You may be informed of your “right to remain silent” during an arrest. However, in many circumstances, the police officer will not arrest you immediately and may instead pull you over and ask you questions before an arrest. In this type of situation, it is up to you to respectfully choose to remain silent.
At all times, you should remain polite and non-confrontational while speaking with the police. However, you should not answer any questions that may provide evidence that may be used against you. While you technically cannot “plead the fifth” until you have been arrested for drunk driving, you can still nicely refuse to answer questions and instead say that your attorney will be available to answer all of the officer’s questions.
Protect All Rights During and After a DUI Stop
It can be intimidating and scary to be pulled over for drunk driving in Virginia. If this has happened to you, then it is important to contact an experienced DUI defense lawyer as soon as possible so that you can be sure that all of your rights are protected.
Before you speak to anyone about your case, please download our FREE DUI DWI Arrest Survival Guide and contact us directly to schedule an initial consultation with an experienced drunk driving defense attorney.
I drive a commercial vehicle and I was arrested for drunk driving while operating that vehicle in Virginia. My blood alcohol level was lower than 0.08 percent. What should I do?
Even if your blood alcohol content (BAC) was lower than 0.08 percent, you should take the drunk driving charge seriously and you should contact an experienced DUI defense lawyer as soon as possible.
Virginia Drunk Driving Laws Are Different for Commercial Drivers
While a BAC of 0.08 percent is the legal standard for typical drivers, Virginia (like most states) has stricter drunk driving laws for commercial drivers. According to §46.2-341.24 of the Code of Virginia, the Commonwealth of Virginia may convict a commercial driver of drunk driving if one or more of the following is true:
The driver has a BAC of 0.04 percent or higher
The driver is under the influence of alcohol
The driver is under the influence of drugs
In order for the prosecutor to get a conviction in your case, the Commonwealth must prove that you drove or operated a commercial motor vehicle while under the influence of alcohol.
Virginia Penalties for Driving a Commercial Vehicle While Intoxicated
Fines and jail time are possible consequences for a commercial driver who is convicted of a DUI. Any commercial driver who is convicted of a DUI may face a potential fine of at least $250. Additionally, jail time can range from a few days to a year depending on your blood alcohol level as confirmed by a chemical test for your first offense and then by the number of times you have been convicted for subsequent offenses.
Of course, a DUI conviction could also have a significant impact on your ability to keep your job or to get another driving job.
You Have a Lot at Stake—Contact a Virginia DUI Defense Lawyer Today
Fines, jail time, and loss of employment are serious consequences. It is important to make sure that you have a proper defense so that any potential penalty is fair and that potential penalties can be avoided to the extent possible.
To learn more about your rights, and about how to protect yourself, please contact us to schedule a free, no-obligation consultation with an experienced DUI defense attorney. We also encourage you to download a copy of our free guide: The Guilt Myth Explained DUI DWI Arrest Survival Guide today.
Can I be convicted of drunk driving if I wasn’t involved in an accident?
Yes, you may be convicted of driving under the influence (DUI) or driving while intoxicated (DWI) in the Commonwealth of Virginia even if you weren’t involved in an accident. It is against the law to drive while intoxicated regardless of whether or not you cause a crash. Even if there was no collision, property damage, injuries, or deaths associated with your charge of drunk driving, your first DUI conviction may result in a Class 1 misdemeanor on your record. It may also result in a fine, restrictions on your license, jail time, and other significant consequences.
The Legal Consequences May Be Worse If Someone is Seriously Hurt or Killed in the Crash
If you are charged with drunk driving in an accident that caused a serious injury or fatality, then you may be facing felony charges. The consequences of a felony charge may include significant time in prison, license revocation, and other penalties that could impact your ability to get a job or your right to vote.
You Need to Take Any DUI Charge Seriously
While the consequences of a DUI may be more significant if someone was hurt or killed in the crash, the consequences of a DUI with no accident are still significant and may still have a serious impact on your life.
Accordingly, it is important that you are represented by an experienced drunk driving defense lawyer if you are charged with any drunk driving crime in Virginia. A lawyer who is trained to use and understand the sobriety tests used by the police and who has represented many other people charged with drunk driving in Virginia may be able to help you defend yourself against the serious charges that you face.
The time to take action is now. Contact a lawyer as soon as you can to make sure that all of your rights are protected. The Wilson Law Firm offers free consultations on DUI defense cases. To schedule your meeting, please call us or reach out to us via this website.
Can I be charged with both DWI and DUI and involuntary manslaughter?
Yes. Driving while impaired (DWI), driving under the influence (DUI), and involuntary manslaughter are separate and distinct crimes in the Commonwealth of Virginia, and you may be charged with more than one crime arising from the same incident. However, in order to be sentenced for both crimes, the prosecution will need to prove that you meet all of the elements of each crime.
What DWI- and DUI-Related Involuntary Manslaughter Mean in Virginia
In order to be convicted of DWI in Virginia, the prosecution must prove that one of the following is true:
You had a blood alcohol content of 0.08 percent or higher.
You were under the influence of drugs or alcohol.
In order to be convicted of DUI-related involuntary manslaughter, the prosecution must prove that:
You were driving under the influence of alcohol, drugs, or both drugs and alcohol at the time of the accident. The prosecution does not need to prove that you had a specific blood alcohol content or that you were technically driving under the influence.
You unintentionally caused someone else’s death. The fatality must have occurred as a result of intoxication.
If the prosecution fails to meet all of the requirements of a DWI charge, then you may still be found guilty of involuntary manslaughter if the prosecution can prove the elements of that crime. Likewise, the reverse may be true and you may be found guilty of DWI, but not of involuntary manslaughter even if someone died in the accident.
Contact an Experienced Criminal Defense Lawyer If You Face One or More Criminal Charges After a Virginia Accident
If you face DWI- or DUI-related involuntary manslaughter, other involuntary manslaughter charges, or other criminal charges, then you need a good defense lawyer to help you protect your rights. You could be facing serious criminal penalties including a fine, a license suspension, and jail time.
Therefore, it is important to start preparing your defense as soon as possible. Please contact the Wilson Law Firm today to schedule an initial consultation and please download our FREE Virginia DUI/DWI Arrest Survival Guide today now so that you can get the information you need immediately.
Can I be arrested for a DUI if I wasn't driving?
It may surprise you to learn that it's quite possible to be charged with driving under the influence even if you weren't actually driving. As long as you were in physical control of the vehicle, a Virginia law enforcement officer has grounds for an arrest.
Determining Physical Control of the Vehicle
According to Virginia DUI law, you don't need to be driving as long as you are physically in control of the vehicle. This means you could be arrested for drunk driving if you were:
- Sitting in the driver's seat
- Sitting in the car with the engine running
- Sitting with the keys within reach
If you were sleeping in the back seat with the vehicle not running, you wouldn't be considered in physical control of the vehicle. Physical control requires the reasonable belief that you'd be able to operate the vehicle given your current position.
Cases involving physical control carry the same penalty as a DUI arrest when you were actually driving, but the good news is that the court is skeptical regarding this type of charge. If you can show evidence that you were waiting for a designated driver or simply trying to sober up before heading home, you may have a solid defense.
Cases Involving Mistaken Identity
Sometimes, a DUI charge may be based on mistaken identification of the driver. For example, if several friends were traveling together, it might it be impossible for law enforcement to determine who was actually driving the vehicle if there are no outside witnesses. Arguing this type of case can be difficult, which is why you'll need to contact an experienced attorney as soon as possible
How T. Kevin Wilson Can Help
A DUI charge is a serious matter, even if it's your first offense. If you've been charged with drunk driving and you weren't driving at the time of your arrest, Virginia DUI attorney T. Kevin Wilson can help you build an aggressive defense. Call today to schedule a free, no-obligation initial case review.
I’m unhappy with my current DUI defense lawyer. Can I fire that lawyer and hire you?
If you are not happy with your attorney's services, it is your right to find alternative legal representation. However, since doing so can create delays in your case, it is typically best to first consider if the relationship can be worked out.
Deciding to Terminate the Attorney-Client Relationship
Common reasons to consider terminating your relationship with your DUI lawyer include:
- You believe the lawyer misrepresented his experiencing handling DUI cases.
- You are not being properly informed of the progress of your case.
- You believe your lawyer has committed an ethical breach, such as mishandling confidential information or not informing you of a conflict of interest.
It is important to understand that a lawyer can't guarantee any specific outcome in your case. Sometimes, even the most well-qualified lawyer may need to deliver news that you don't want to hear. Before you consider terminating the relationship, ask yourself if there is any way to work out your differences.
If you've decided that you wish to find a new DUI lawyer, consult your contract with your original attorney to figure out how to proceed with terminating the relationship. Keep in mind that there may be a financial penalty for breaking the contract.
It is advisable to find new representation before writing a letter to formally terminate the relationship. This prevents any unnecessary delays in your case. Your letter should include a brief explanation of why you wish to end the relationship and the name and contact information for your new DUI attorney. Send the letter via certified mail and keep a copy for your records.
If your case is pending, you must notify the court of the withdrawal or substitution of counsel immediately after notifying your current attorney that you wish to end the relationship.
Contact T. Kevin Wilson
Virginia DUI lawyer T. Kevin Wilson is committed to helping clients build an aggressive defense against drunk driving charges. If you are unhappy with your current legal representation, call today to schedule a free, no-obligation case review.
Should I trust the lawyer who drafted my will to handle my DUI case?
Most people don't give a lot of thought to the law until they need help. But, it's important to remember that lawyers generally focus on a few specific areas of the law. This means that the lawyer who drafted your will, handled your cousin's divorce, or helped your friend from college set up his small business is probably not the right person to handle your DUI case.
Questions to Ask Your Lawyer
A lawyer's website can often provide some basic details about his or her background, but you can also use your individual consultation to learn more about qualifications specifically related to handling a DUI charge.
Some questions to ask your lawyer include:
- Where did you attend law school?
- Other than your law degree, do you have any special training or knowledge related to handling DUI cases?
- How long have you practiced law?
- What percentage of your practice is devoted to DUI cases?
- How would you describe your typical client?
- How many cases have you handled that were similar to mine?
- How were these cases resolved?
- Do you regularly practice in the courthouse where my case will be handled?
- Have you ever been accused of or sanctioned for professional misconduct?
- Will you be doing the work on my case or will I be communicating with junior associates or paralegals?
As you're evaluating potential options for your legal representation, don't be afraid to walk away if you feel that a lawyer's experience doesn't match your needs. The penalties for a DUI are stiff, so you deserve the best defense possible.
Protect Your Future by Building an Aggressive DUI Defense
T. Kevin Wilson has extensive experience using cutting edge DUI defense strategies. He has completed specialized training in standardized field sobriety testing, breath alcohol testing, blood alcohol testing, and police RADAR/LIDAR in addition to serving as an instructor at Prince William County Criminal Justice Academy covering criminal law, criminal procedure, and constitutional law. Call today to schedule a free, no-obligation case review to discuss your legal options for handling your DUI case.
Can I lose my job for a DUI conviction?
Being convicted of drunk driving in Virginia carries stiff penalties, including fines, jail time, and the stigma of a criminal record. However, one often overlooked aspect of a DUI conviction is how it may affect your employment prospects.
Do I Have to Inform My Employer of My DUI?
You are not legally required to notify your employer of a DUI arrest or conviction. If you apply for a restricted license after a DUI conviction, however, the court will require proof of your employment and working hours. Depending upon where in Virginia you live, you may need a statement on company letterhead or a signed form that specifically states you're applying for restricted license due to a DUI.
Can I Be Fired for a DUI Conviction?
When you've been charged with a DUI, you'll want to review your company's handbook very carefully. Many companies require you to report DWI arrests and/or convictions to the human resources department.
Every company is a little different, but you are more likely to be disciplined or terminated for a DUI if your job requires driving. For example, a license suspension for a DUI automatically suspends your CDL. Even if you have a restricted license to drive your personal vehicle to work, the restricted license won't allow you to operate a commercial motor vehicle.
If you are required to maintain a valid security clearance for your employment, you might run into problems since a DUI conviction is a criminal charge. You may be able to get an exemption for a single offense, but could run into trouble if you have other criminal charges on your record.
How Can My Attorney Help Protect My Privacy?
If you're concerned about how a DUI conviction will affect your employment, your attorney may be able to schedule your court appearance at a time that won't interfere with your work schedule. Arrangements to serve jail time may require some time off work, but can be handled in a way that protects your privacy as much as possible.
Virginia attorney T. Kevin Wilson is committed to helping drivers build an aggressive defense against DUI charges. Please call today to schedule a free, no-obligation initial consultation.
Should I cooperate with police if they try to arrest me for a DUI?
Being stopped by the police can be an intimidating and somewhat frightening experience, especially when you've been accused of driving under the influence. Cooperating with the officer is in your best interest, but keep in mind that you are not required to submit to a breathalyzer or field sobriety tests if you haven't been arrested.
How to Handle Being Stopped for Suspicion of a DUI
If an officer pulls you over, keep in mind the following tips:
- Be polite and respectful. Remember that the officer is only doing his or her job.
- Don't apologize, admit wrongdoing, or make excuses for your behavior.
- Provide your driver's license and insurance information when requested.
- Never, under any circumstances, try to physically resist arrest.
You are not legally required to agree to submit to field sobriety testing, but the officer may weigh your refusal to do so when determining if there is probable cause for arrest. If you opt to take a field sobriety test, be sure to inform the officer of any medical conditions you have that may affect the results. For example, a bad knee or an inner ear infection would likely affect your ability to balance on one leg.
You do not need to take a preliminary breath test before you've been arrested. This test is often asked for as part of field sobriety testing, but refusing to submit to the test can't be used against you as evidence in court.
Virginia's Implied Consent Law
Virginia's implied consent law requires you to submit to a blood test or breath test only if you've been arrested for a DUI because the officer has probable cause to believe you've been drinking or are under the influence of illegal drugs. This test must be completed within three hours of the time you were arrested. Refusing to take the test results in a one-year suspension of your driver's license for the first offense.
Retaining Legal Representation
A DUI charge requires an aggressive defense from an experienced attorney. Call today to schedule a free, no-obligation initial case review with Virginia DUI attorney T. Kevin Wilson.
Can I be charged with DUI and reckless driving at the same time?
It is a common misconception that drivers in Virginia can't be charged with a DUI and reckless driving at the same time. While you can't be charged under the general reckless driving statute § 46.2-852, you can be charged with both offenses if your behavior falls under another section of the code.
Understanding Virginia's Reckless Driving and DUI Law
Virginia statute § 19.2-294.1 states, "Whenever any person is charged with a violation of § 18.2-266 or any similar ordinances of any county, city, or town and with reckless driving in violation of § 46.2-852 or any ordinance of any county, city or town incorporating § 46.2-852, growing out of the same act or acts and is convicted of one of these charges, the court shall dismiss the remaining charge."
Sometimes referred to as the general reckless driving statute, § 46.2-852 states, "Irrespective of the maximum speeds permitted by law, any person who drives a vehicle on any highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person shall be guilty of reckless driving."
Although you can't be convicted of both a DUI and reckless driving under § 46.2-852 if both charges are from the same incident, you can still receive a DUI and reckless driving conviction if your behavior falls under one of the following statutes:
- § 46.2-853 Driving vehicle which is not under control; faulty brakes
- § 46.2-854 Passing on or at the crest of a grade or on a curve
- § 46.2-855 Driving with driver's view obstructed or control impaired
- § 46.2-856 Passing two vehicles abreast
- § 46.2-857 Driving two abreast in a single lane
- § 46.2-858 Passing at a railroad grade crossing
- § 46.2-859 Passing a stopped school bus
- § 46.2-860 Failing to give proper signals
- § 46.2-861 Driving too fast for highway and traffic conditions
- § 46.2-862 Exceeding speed limit
- § 46.2-863 Failure to yield right-of-way
- § 46.2-864 Reckless driving on parking lots, etc.
- § 46.2-865 Racing
Preparing the Strongest Possible Defense
If you're facing both a DUI and a reckless driving charge, it's vital that you contact an experienced attorney who can help you evaluate your legal options. T. Kevin Wilson is committed to helping Virginia drivers mount an aggressive defense against DUI and reckless driving charges. Call today to schedule a free, no-obligation case review.
Is it possible to fail the horizontal gaze nystagmus test if you haven't been drinking?
The horizontal gaze nystagmus test is a common field sobriety test used to determine probable cause for a DUI arrest. However, the test is not always accurate.
About the Horizontal Gaze Nystagmus Test
The horizontal gaze nystagmus test is a type of field sobriety test used to measure nystagmus, which is the medical term for an involuntary jerking of the eyeballs. Nystagmus can occur for many reasons, but becomes more pronounced when someone is intoxicated.
To perform the test, an officer will hold a pen or other small object roughly 12 to 15 inches from your nose. He will slowly move it from one side to the other and ask you to follow the object with your eyes while keeping your head still.
The officer will look for jerking or bouncing eye movements while following the object, nystagmus that sets in before your eyes reach a 45-degree angle, or nystagmus at maximum deviation. Four or more observances of nystagmus are probable cause for a DUI arrest.
Reasons for a Failed Test
The horizontal gaze nystagmus test is only accurate in about 77% of cases. Reasons for a failed test could include:
- You suffer from a natural nystagmus in your eyes.
- You have the flu or an inner ear infection.
- You've been diagnosed with muscular dystrophy, multiple sclerosis, epilepsy, or glaucoma.
- You were recently engaged in activities causing eyestrain or eye muscle fatigue.
- You were taking certain pain medications, anticonvulsants, or antihistamines.
- The officer moved the object too quickly.
- The officer made the object come too close to your eyes.
- You weren't allowed enough time to follow the object during the test.
If you were drinking several hours earlier, keep in mind that it's possible to have a nystagmus even after all alcohol clears from your blood.
Building an Aggressive Defense
Failing the horizontal gaze nystagmus test shouldn't be a reason for panic. An experienced DUI defense attorney can help you build an aggressive defense by investigating every option available to support your case. Call today to schedule a free, no-obligation initial case review with Virginia attorney T. Kevin Wilson.
What constitutes probable cause for a DUI arrest?
Before an officer can legally arrest you for a DUI, he must have probable cause you were operating a motor vehicle while under the influence of alcohol or drugs.
About Probable Cause
Essentially, probable cause means that an officer has a reasonable suspicion that you're legally impaired. Examples of behavior that constitute probable cause for a traffic stop include:
- Swerving, weaving, drifting, or otherwise having difficulty staying in the correct lane.
- Driving too slowly, too fast, or making improper changes in your speed.
- Driving without your headlights, stopping for no apparent reason, improper signaling, or other types of vigilance problems.
- Demonstrating poor judgement through actions such as tailgating, arguing with another driver, or improper stopping in response to a police signal.
If you've already been pulled over, probable cause that you've been drinking includes:
- The smell of alcohol on your breath
- Glassy or bloodshot eyes
- Slurred speech
- A verbal admission of intoxication
- Failing field sobriety tests such as the walk-and-turn, one leg stand, or the horizontal gaze nystagmus test
- Failing a preliminary breath test
Probable Cause and DUI Checkpoints
DUI checkpoints are permissible under Virginia law, but only if they meet specific criteria. They must be publicized in advance and police officers aren't allowed to stop every vehicle that passes. They must use a mathematical formula to choose who gets stopped, or wait for driver behavior to give them probable cause.
Building Your DUI Defense
If you've been arrested for a DUI, challenging the legality of your arrest may be one option to consider. When making an arrest, officers are supposed to consider the totality of your circumstances. For instance, one example of erratic driving could mean you were distracted for a second or two. However, several examples of erratic behavior combined with slurred speech and a failed sobriety test provides a stronger justification for your arrest.
Having a skilled attorney prepare your DUI defense ensures he'll investigate every option available to support your case. Virginia attorney T. Kevin Wilson is committed to helping drivers avoid the stiff penalties associated with a DUI conviction. Call today to schedule a free, no-obligation initial case review.
Will a DUI conviction cost me custody of my kids?
Although the court can't take away custody of your child due to a DUI conviction alone, the charge could present a problem if you're currently in the middle of a divorce or a custody battle with a former partner.
Impact of a DUI Conviction on Child Custody
In a child custody case, keep in mind that there are two types of custody that must be decided: legal custody (the ability to make decisions about a child's upbringing such education and religious affiliation) and physical custody (how much time a child will physically spend with each parent).
A DUI conviction is unlikely to affect legal custody, but may affect physical custody if there is other evidence raising concerns regarding your moral character or fitness as a parent. This might include:
- Additional evidence suggesting you have a substance abuse problem
- Evidence your alcohol use has already placed the child in danger, such having your child in the car when you're under the influence
- Signs of child neglect, such as a child arriving for school hungry and in dirty clothes
- Signs of child abuse, such as unexplained bruises
- Previous criminal convictions of any type
- Evidence of an aggressive or temperamental personality
- Minimal past involvement in your child's daily care
When judges award physical custody, they are trying to decide which parent is best equipped to provide a stable and safe home environment. This includes tasks such as transporting children to school and activities, helping with homework, preparing meals, providing appropriate discipline, and serving as a positive adult role model. Older children may be allowed to express a preference as to which parent they want to live with, but a judge always has the authority to rule against the child's wishes if there are safety issues involved.
The Wilson Law Firm Can Help
Having access to skilled legal representation can help you minimize the negative consequences associated with a DUI, including any effect on pending child custody hearings. Virginia defense attorney T. Kevin Wilson is dedicated to investigating every possible avenue of defense for his clients. Call today for a free, no-obligation case review.
If I am convicted of a DUI in Virginia, will I be required to go to rehab?
If you are charged with driving under the influence of alcohol or drugs, the court might question if this suggests you have a substance abuse problem. The judge could order you to attend a court-approved rehab facility or you may voluntarily offer to attend rehab to reduce the penalties associated with the DUI charge.
The Role of Rehab in a DUI Case
Virginia law gives judges discretion to use court-ordered rehab instead of jail time for nonviolent offenders. This helps keep the prison population down and can provide offenders with the support they need to avoid future legal troubles. Rehab can also be ordered as part of a sentence that includes some jail time, depending upon the circumstances associated with the charge. There are court-ordered treatment facilities throughout the state, offering both inpatient and outpatient rehab programs for drug and alcohol abuse.
Even if the court does not require you to complete a drug or alcohol rehab program, voluntarily seeking treatment can be a way to avoid jail time or earn a more lenient sentence. By admitting you have a substance abuse problem, you're telling the judge that you understand your conduct was inappropriate and that you're committed to making sure the same thing doesn't happen again.
Voluntarily seeking rehab is most effective for first time offenders, but still an option even if this is a second or subsequent offense. However, you should speak to your attorney before committing to a program to ensure that the facility's treatment plan is one that is likely to be supported by the court.
T. Kevin Wilson Can Help
The penalties for a DUI conviction can be quite serious, which is why it's vital that you have access to skilled legal representation throughout the process. Virginia defense attorney T. Kevin Wilson has advanced training in standardized field sobriety testing, breath alcohol testing, and blood alcohol testing, which allows him to investigate every possible avenue of defense for his clients. Call today for a free, no-obligation case review.
Can my DUI be dismissed if the officer didn’t read me my Miranda rights?
When someone is arrested on TV, the cop automatically starts to "read the person his rights." On TV, this usually means telling the arrested person that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to have an attorney present during questioning, etc. However, not receiving your Miranda rights won’t necessarily get your DUI charge thrown out.
Miranda Rights in a DUI Case
Police officers are not required to give Miranda warnings immediately upon arresting someone, nor do Miranda rights apply to the preliminary questioning of a subject before he is arrested. In a DUI case, this means that your answers to the initial questions an officer asks while determining if you are intoxicated can be admitted as evidence with no Miranda warning. Two examples of questions that are most often relevant in a DUI case are "Have you been drinking?" and "How much have you had to drink tonight?"
However, a formal investigation requires a Miranda warning before evidence can be used in court. If you were interrogated by the police after being taken into custody and you were not given a Miranda warning, your statements can not be used against you.
After you are read your Miranda rights, you must affirmatively state that you understand these rights before the interrogation can proceed. If you state that you wish to remain silent or want to speak to an attorney, all questioning must stop.
Protecting Your Legal Rights
Although the majority of incriminating statements in a Virginia DUI case come before the suspect is taken into custody, there are many situations where this issue still arises in the defense of drunk driving cases. If you believe your statements should be inadmissible due to a law enforcement officer's failure to read you your Miranda rights, this is an issue that should be discussed in greater detail with a qualified defense attorney.
Virginia attorney T. Kevin Wilson has extensive experience assisting those who've been charged with a DUI in building a solid defense. To learn more, please call to schedule a free, no-obligation case review.
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.
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.