The Virginia Verdict Review

Comprehensive and Informative Commentary on State and Federal Legal Matters

Category Archives: DUI

Virginia Supreme Court Opinion Creates Unintended Incentive to Drive Drunk

Given the most recent decision of the Virginia Supreme Court with respect to passive “operation” of a vehicle and the application ofVa. Code § 18.2-266, I wonder how many more citizens of the Commonwealth have to die before the General Assembly and the Supreme Court stop providing unintended incentives for drunk drivers to stay on the road.

In January of last year, in Nelson v. Commonwealth, 281 Va. 212 (2011), the Virginia Supreme Court affirmed the conviction of a man who, after being found asleep behind the wheel of his car with the radio running, was charged with DUI.  In support of this conviction, the Court reasoned that, by placing the car in the “on” or ‘accessory” position so as to activate the radio but not the ignition, the defendant was, in effect, operating the vehicle and was therefore in violation of Code 182.-266.  Alarmed by the implications of this ruling, I have been anxiously anticipating some form of retort or rebuttal from the legal community for the last year.  On March 2nd, that response finally arrived.  Unfortunately, it was not exactly the response I was looking for.  Instead of objecting to or overturning last year’s ruling, the Supreme Court of Virginia further solidified their opinion by affirming the DUI conviction of a man found sleeping behind the wheel. Enriquez v. Commonwealth, 2012Va. Lexis 49,March 2, 2012.  In doing so, I believe the Supreme Court has inadvertently signed the death warrant of untold drivers and passengers onVirginia highways.

In Enriquez,  the Defendant was originally investigated by the police after a parking meter attendant tried to ticket his car for being illegally parked in a bus zone and discovered him asleep inside.  Unable to rouse the man by knocking on the window, the attendant called the police and the situation progressed from there.  Ultimately, he was charged with (and later convicted of) DUI because he had the keys in the ignition so he could listen to the radio while his engine was off and car in park.

While some may not question the Defendant’s eventual conviction, my issues lies with the logic applied by the Supreme Court in reaching its decision.  Following previous cases, the Supreme Court engaged in an analysis  that focussed on whether a key was in a particular position in the ignition.  Va. Code § 18.2-266 prohibits a person under the influence from driving or operating a motor vehicle on the highways.  In Enriquez, the Supreme Court spends considerable effort stretching the definition of “operate” to now include merely having the keys in the ignition, even if the engine is off and the car is in park.  In its efforts in expanding the logical definition of “operate”, the Supreme Court has created a perverse incentive for drivers that will result in more deaths on theVirginia highways.

Because the Supreme Court’s reasoning criminalizes the simple act of turning on the heat on a cold night, or of listening to the radio, while  being drunk in a car, this opinion creates an incentive for drunk drivers, or those who feel the beginnings of impairment, to stay on the road.  There is no benefit to these drivers in stopping and resting and ensuring they are going to be safe.  As such a driver faces a criminal penalty if he stops and is caught, he has an incentive to keep going and to try to reach the safety of home.  Frankly, that is the last thing I want:  implicit encouragement to drunk drivers to stay on the road.  Based on the Court’s extension of previous cases, I fully expect it to find that the mere possession of car keys, when one has a push button ignition in his car, to be construed as “operating” the vehicle.  Again, more incentive not to stop, more incentive to stay on the road, more likelihood of killing someone.

I understand that drunk driving is a hot political button.  Every officer in the state makes a DUI inquiry during every traffic stop.  However, in non-alcohol related cases, the General Assembly has already provided an incentive for tired drivers to get off the road.   Under Virginia Code 46.2-830.1, the act of parking one’s car on the shoulder in order to rest is encouraged by removing any serious penalty for drivers who do so because they are feeling drowsy or tired.   Conviction for sleeping on the side of the road is a no demerit point offense.  The General Assembly has recognized that it wants tired drivers to get off the road.  It shouldn’t matter if he is tired because he has been up for twenty-four hours or because he has had too much to drink.  That driver needs to be off the road.  Instead, if the driver who has too much to drink does what society wants and pulls over to sleep, he faces a greater chance of being discovered and punished as a criminal, especially if one were to pull over in winter and need heat to stay alive while he sleeps.   Faced with that outcome, many a drunk driver will take the chance of getting home.  And, more people will be in accidents and more people will die.  It is the law of unintended consequences.

Now that the Supreme Court has spoken in Enriquez, our only hope is that the General Assembly overturns the Supreme Court’s decision through legislation.  I am not holding my breath.

Virginia DUI Law: The Penalties for A DUI Conviction

As one of the most frequently charged offenses in the Commonwealth of Virginia, driving under the influence (DUI) is a very serious offense.  Since it is a class one misdemeanor, the Court may sentence a person found guilty of DUI to a variety of penalties, depending on the number of subsequent offenses and the amount of intoxication:

First Offense

  • Jail of up to 12 months
    • If BAC is .15 or greater, there is a mandatory jail sentence of 5 days
    • If BAC is more than .20, there is a mandatory jail sentence of 10 days
  • Fine between $250 and $2500 plus court costs, or
  • A combination of jail time and a fine
  • Required probation and participation in the Virginia Alcohol Safety Action Program (“ASAP”) as well as attendance at Victim Impact Panel
  • A loss of license for one year is required
    • If BAC was .15 or greater, one who is convicted must install an ignition interlock device before being able to get a restricted license

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history. The loss of license is required, as are the mandatory jail sentences for high BACs.

Second Offense (within 5 years of First Offense)

  • Jail between 1 month and 12 months, or
    • Mandatory minimum jail term of 20 days
    • If BAC is between .15 and .20, there is a mandatory jail sentence of and additional 10 days
    • If BAC is more than .20, there is a mandatory jail sentence of an additional 20 days
  • Fine between $500 and $2500 plus court costs, or
  • A combination of jail time and a fine
  • Required probation and participation in ASAP as well as attendance at Victim Impact Panel
  • A loss of license for three years is required
    • If BAC was .15 or greater, one who is convicted must install an ignition interlock device before being able to get a restricted license

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history. The loss of license is required, as are the mandatory jail sentences for high BACs.

Second Offense (between 5 and 10 years of First Offense)

  • Jail between 1 month and 12 months, or
    • Mandatory minimum jail term of 10 days
    • If BAC is between .15 and .20, there is a mandatory jail sentence of an additional 10 days.
    • If BAC is more than .20, there is a mandatory jail sentence of an additional 20 days.
  • Fine between $500 and $2500 plus court costs, or
  • A combination of jail time and a fine.
  • Required probation and participation in ASAP as well as attendance at Victim Impact Panel
  • A loss of license for three years is required.
    • If BAC was .15 or greater, one who is convicted must install an ignition interlock device before being able to get a restricted license.

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history. The loss of license is required, as are the mandatory jail sentences for high BACs.

Third Offense in a 10 year period

  • Class 6 Felony classification.
  • Jail of up to 5 years authorized.
    • Mandatory jail term of 90 days. (180 day mandatory jail term if all three offenses committed in a 5 year period).
  • Loss of license indefinitely
  • Court fine of $500-$2500 plus court costs.
  • Required probation and participation in ASAP as well as attendance at Victim Impact Panel
  • State may seize vehicle

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history. The loss of license is required, as are the mandatory jail sentences for high BACs.

Fourth Offense within 10 years

  • Class 6 Felony classification.
  • Jail of up to 5 years authorized.
  • Mandatory jail term of 12 months.
  • Loss of license indefinitely
  • Court fine of $1,000-$2500 plus court costs.
  • Required probation and participation in ASAP as well as attendance at Victim Impact Panel
  • State may seize vehicle

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history. The loss of license is required, as are the mandatory jail sentences for high BACs.

Offense by Person under Age 21 (BAC of .02-less than .08)

  • Loss of license for six months.
  • Fine of not more than $500 plus court costs.

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history.  Nevertheless, the severity of these consequences often necessitates proper legal representation.  If you find yourself facing a DUI charge,  it is well within your best interest to spend some time researching competent attorneys in your area.  As always, feel free to contact Westlake Legal for a free consultation.


Virginia DUI Law: The Effect of a DUI On Insurance and License

Q: What does a conviction for DUI do to my insurance and license? 

A:  One of the most frequent requests I receive from Traffic/DUI clients is to negotiate for fewer points on their driving record if they are found guilty.  In fact, fearing skyrocketing insurance payments, many clients offer to plea to a lesser offense in exchange for reduced points.   Unfortunately, points on a driving records are not assessed by the Court, so neither of these options are possible.  Points are assessed by the DMV, and depending or one’s driving record, a conviction for DUI could result in an administrative suspension of one’s license by the DMV. At a minimum, a person convicted of DUI will be assessed (-6) points on their driving record by the DMV. Such a conviction will remain on the driving record and can be considered when determining insurance rates for a period of 11 years after conviction. A 2004 study concluded that a DUI conviction costs up to $20,000 over the life of a convicted defendant in the form of increased insurance premiums and other fees.

When faced with the possibility of such a substantial financial burden, many people find the idea of hiring an attorney who will aggressively defend their rights much more appealing.  Should you ever find yourself in need of such services, please feel free to contact Westlake Legal Group to schedule a consultation.

Understanding a D.U.I Defense

The most charged crimes in Virginia are reckless driving and DUI. Although no one should drive if they are under the influence, certain organizations and local governments have made a concerted effort to arrest and charge people for merely having had one or two drinks and then driving. Unfortunately, most people do not know that it is possible to successfully defend against the charge of DUI. To do so, one needs to understand the basic physiology of alcohol consumption and the weaknesses of the techonology often used by prosecutors to prove being under the influence.

In 2009, the Commonwealth switched from using the Intoxilyzer 5000 to using the EC/IR II for breath testing. Many in the defense community cynically argue that this was done to aid in convictions as the EC/IR II does not reflect differences in types of alcohol (ethyl- v. methyl-) as well as its predecessor. Breath test machines also don’t differentiate between genders, account for individual body types, or assess actual body temperature. Most importantly, breath test machines assume that individuals have the same breath to blood ratio, or lung capacity.

 
Because everyone is different, the failure of machines to account for differences in temperature, the amount of body fat or water in a person, and lung capacity means that all DUI convictions based on the numerical results of a breath test machine are based on inaccurate test results. 


At Westlake Legal Group, we have been able to demonstrate to juries that breath test machines are inaccurate. In fact, we have shown that machine results as high as .30 were inaccurate and our clients have been properly found not guilty. Every case is, of course, different and results cannot be guaranteed. However, if you, a friend, or family member, are faced with such a charge, know that we have the experience to defend you.

Of course, the real issue of discussion is whether DUI laws are too extreme. Is it possible to properly regulate alcohol and driving without having the pendulum swing to the extreme? Thoughts?
If you wish to learn more about our approach to criminal defense, feel free to contact Westlake Legal for more information.

The Truth Behind “Implied Consent”: Roadside Sobriety Tests Explained

NOTE: The purpose of this posting is to discuss the implications of Virginia statute on drivers confronted with a roadside breath test or a roadside sobriety field test.  Different considerations come in to play if you have already been arrested and are asked to take breath test at the police station.  Hopefully, by acting responsibly and remaining knowledgeable as to your rights, you will never find yourself in such either situation.

As a defense attorney who deals with multiple DUIs each month, one of the most frequent — and, to me, most upsetting — comments I hear from clients is, “I didn’t want to take a breathalyzer, but the cop told me I had to because Virginia has an ‘implied consent’ law.  I didn’t know that I had the right to refuse it without getting arrested.”

Whether it be something they learned in Driver’s Ed or something they just heard from friends, it seems that most Virginia drivers are under the impression that if a cop asks you to take a breath test or to perform a sobriety field test, you have to comply… or else be arrested on the spot.  While this assumption is simply not true, many people are never properly informed of their rights until they are sitting in my office, preparing to fight the DUI they have already been charged with.  So, for the sake of getting it right before it is too late, let’s take a minute to examine Virginia’s “Implied Consent” law and the implications it has on drivers statewide.

First things first: The Commonwealth of Virginia does have what is commonly referred to as an “implied consent law.”  However, it is probably not what many of you think it is.  In Virginia, the “implied consent law” is officially known as Code § 18.2-268.2 and is stated as follows:

“Any person, whether licensed by Virginia or not, who operates a motor vehicle upon a highway, as defined in § 46.2-100, in the Commonwealth shall be deemed thereby, as a condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, if he is arrested for violation of § 18.2-26618.2-266.1, or subsection B of § 18.2-272 or of a similar ordinance within three hours of the alleged offense.”

What is interesting and important about this particular code is that it is strictly limited to those who have already been arrested for driving while intoxicated (see bold section). Put even more simply, you are never nuder any obligation to take a roadside breath test (PBT) or to perform a roadside field test.  The above cited statute is expressly limited to individuals who have already been arrested and taken back to the police station, which is a far cry from the side of the road.  In fact, contrary to what many police officers will indicate after they have pulled you over, Virginia law actually protects your right to refuse a breath test at the scene of a traffic stop. This right is affirmed in Virginia Code § 18.2-267, where it states:

“Any person who has been stopped by a police officer of the Commonwealth, or of any county, city or town, or by any member of a sheriff’s department and is suspected by such officer to be guilty of a violation of § 18.2-266 or § 18.2-266.1, shall have the right to refuse to permit his breath to be so analyzed, and his failure to permit such analysis shall not be evidence in any prosecution under § 18.2-266 or § 18.2-266.1.”

In other words, not only can you refuse a roadside breath test, but this refusal is not, by itself, grounds on which you can be arrested and your refusal can not be used against you should you end up in court.  A good way to think of it is like this: the police need probable cause to place anyone under arrest.  While a roadside breath test is not admissible in court, it does provide sufficient evidence to establish probable cause.  So, when a cop asks you to agree to a roadside breath test, they are really just looking for a way to easily establish probable cause.  The logic behind your right to refuse such a test is similar to logic that justifies pleading the 5th–you can never be forced to incriminate yourself or to implicate yourself in any crime.

So what does this mean to the average Virginian?  At the very least, having this information presented to you should reinforce the importance of becoming knowledgeable as to your rights and learning how they apply to everyday situations.  More importantly, you should know how to exercise those rights.  Hopefully, you will never put yourself in a situation where you will have to put this knowledge to use, but at the very least you can help put an end to the wide-spread rumors surrounding Virginia’s Implied Consent law.