People assume that because we specialize in driving under the influence defense we have seen every type of case and therefore know what the outcome of their case will be. While there is tremendous value in our experience, no two cases are the same and neither are their outcomes. There are many possible defenses to a drunk driving charge, and as we analyze your situation we will decide the specific defenses that best fit your case.
The Initial Stop of the Vehicle
An officer must have reasonable articulable suspicion of criminal activity to legally stop your vehicle. This can be as simple as a traffic violation like speeding or failing to use a turn signal. There are often innocent explanations for the officer’s observation, but in their testimony, officers will sometimes go to great lengths to convince the court that you committed the violation because you were under the influence. A thorough analysis of the officer’s report and a conversation with him prior to court will help us prepare appropriate challenges to the initial stop of your vehicle.
If the officer did not have reasonable articulable suspicion for the stop, the case should be dismissed.
The Field Sobriety Tests (FSTs)
Field Sobriety Tests (FSTs) are used in conjunction with the PBT (see below) to determine if there is probable cause for an arrest and an official breath or blood test at a police station or hospital. You are not required to perform FSTs; however, this is seldom effectively communicated to a DWI suspect.
There are many types of FSTs used by officers in Virginia, but only certain tests are considered reliable and are standardized by the National Highway Traffic Safety Administration (NHTSA). NHTSA acknowledges that “if any one of the Standardized Field Sobriety Test elements is changed, the validity is compromised.” HS 178 R1/02, VII-19.
If the officer deviated from the standardized tests or was never properly trained to administer these tests, then his testimony on FSTs should be excluded.
The Preliminary Breath Test (PBT)
Probable impaired driving arrests can be made through a Preliminary Breath Test (PBT), FSTs, and an official breath or blood test at a police station or hospital. Many DUI suspects are unaware that they are not required to submit to a PBT.
Any PBT device used by police in Virginia is required to be compliant with the manufacturer’s warranty requirements for maintenance and calibration. A noncompliant PBT device can produce false readings, and there are other factors that could cause a PBT device to read inaccurately: breath temperature and mouth alcohol.
If the PBT device used in your case was not compliant with the manufacturer’s warranty requirements or if there were any factors present during testing that could result in an inaccurate reading, then the results should be excluded.
Probable Cause for Arrest
Probable cause is subjective, and an officer’s decision to arrest you is based on his analysis of your impairment level, beginning the moment he makes contact with you. During the stop, the officer is noting your response to his lights and sirens, how you produce your license and registration, your appearance, what you say, how you say it and more. If you choose to participate in the FSTs and PBT, he uses your performance to further assess your impairment. Prior to arrest, the officer will determine whether the probable cause exists to require you to submit to an official breath or blood test at a police station or hospital.
A police officer must provide strong testimony to convince the court of his assessment of your level of impairment, and without adequately established probable cause, your arrest becomes invalid.
If there is no probable cause for your arrest, then the case should be dismissed.
Certificate of Analysis-Blood or Breath Test
If you submitted to a chemical test upon your arrest, you either have a Certificate of Blood Alcohol Analysis (by breath) or you should expect to receive a Certificate of Analysis (by blood). The breath test certificate is available immediately, while the blood test is performed in a state lab and the certificate may not be available for many weeks.
In either situation, the Certificate of Analysis is an important piece of your case as it reveals a number. People often view this number as the most important factor in a drinking and driving case, and obviously a number below the .08% limit puts you in a better position.
It is a common misconception that if you blow at or above the .08% you are guilty; however, the Certificate of Analysis is not automatically admissible in your case. There are specific procedures that must be followed for both breath and blood tests:
- You must be informed of your rights as they relate to implied consent.
- The specific test must be administered and evaluated properly. For a breath test, this includes the officer operating the breath machine and the breath machine itself. For a blood test, this includes the personnel retrieving the blood sample, the officer packaging and shipping the sample, and the personnel at the state lab analyzing the sample.
If you were not informed of your rights as they relate to implied consent, or if any of the procedures for the test administered were not done properly, the Certificate of Analysis should not be admissible in your case.
For more information about DUI defense, call The Wilson Law Firm at (571) 364-6270 to speak with a qualified attorney today. We can educate you about Virginia laws and help you obtain an effective defense.