Virginia Criminal Attorney DUI / DWI FAQs
Q: What will it cost for a Virginia DUI Attorney or a Virginia DWI Attorney to represent me?
A: The cost varies depending on the particular facts and circumstances of your case. Please see our Costs page for a more detailed explanation.
Q: What possible punishment am I looking at if convicted of a Virginia DUI?
A: Again, that question depends on the exact facts and circumstances of your particular charge. If you are facing a charge you should retain a competent Virginia DUI attorney. Please see our DUI Penalties page for a complete discussion of what you are potentially facing.
Q: If I'm stopped by a police officer and he/she asks me if I've been drinking, what should I say?
A: You are not required to answer potentially incriminating questions. A polite "I would like to speak with an attorney before I answer any questions" is a good reply. On the other hand, saying that you had one or two beers is not incriminating: it is not sufficient to cause intoxication and it may explain the odor of alcohol on the breath.
Q: Do I have a right to an attorney when I'm stopped by an officer and asked to take a field sobriety test?
A: In Virginia, there is no right to speak to an attorney until after you have submitted to blood or breath testing at the station (or have refused to do so).
Q: What should I do if I'm asked to take field sobriety tests?
A: There are a wide range of field sobriety tests (FSTs), including heel-to-toe, finger-to-nose, one-leg stand, horizontal gaze nystagmus, alphabet recitation, modified position of attention (Rhomberg), fingers-to-thumb, hand pat, etc. Most officers will use a set battery of three to five such tests.
Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any FSTs. The reality is that officers have usually made up their minds to arrest when they give the FSTs; the tests are simply additional evidence that the suspect inevitably "fails". Thus, in most cases, a polite refusal may be appropriate.
More Questions for a Virginia DWI Lawyer.
Q: Should I agree to take a chemical test? What happens if I don't?
A: There are adverse consequences to refusing to submit to a breath or blood test: Your driver's license may be suspended for one year without a restricted license being issued for purposes of driving to work, school, medical appointments, or child care. Thus, the decision is one of weighing the likelihood of an incriminating blood-alcohol result against the consequences of refusing. Many officers, however, are charging individuals with refusal if the person burps more than once or blows into the machine and gets a reading of invalid sample. Under both circumstances, this may give you a Defense to one or both of the refusal and the DUI.
Q: Do I have a choice of chemical tests?
A: In Virginia, you are no longer given a choice of blood or breath testing. If arrested, you will be asked to submit to a breath test unless it is unavailable or you are physically incapable of taking the test. Then the officer should offer you a blood test. Analysis of a blood sample is potentially the most accurate. Breath machines are susceptible to a number of problems, rendering them often unreliable. A Manassas DUI Lawyer can tell you about all the implications of testing during your initial meeting.
Q: The officer never gave me a Miranda warning: Can I get my case dismissed?
A: No. The officer is supposed to give a 5th Amendment warning after he/she arrests you. Often, however, they do not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest. Of more consequence in most cases is the failure to advise you of the state's "implied consent" law - that is, your legal obligation to take a chemical test and the results if you refuse.
Q: The officer took my license and served me with a notice of suspension after the breath test: How can he/she do that if I'm presumed innocent?
A: Agreed, it seems blatantly unfair. But the law in Virginia provides for immediate suspension and confiscation of the license if you are charged with DUI.
Q: Can I represent myself? What can a Lawyer do for me?
A: You can represent yourself, although it is not a good idea. "Drunk Driving" is a very complex field with increasingly harsh consequences. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing and license issues. What can a Virginia DUI Lawyer do? Nothing (or worse) if he/she is not qualified. A qualified Virginia DUI Attorney, however, can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, etc.
Q: What is the punishment if I am convicted of a Virginia DUI?
A: This depends on whether it is a first offense, second offense or third or subsequent offense (felony). Also, if it is not the first offense, how much time has elapsed between the offenses (ie. within five years or ten years of the previous one). In addition, if a breath test result is available, what was the result? Higher results mean greater punishment. However, even a first offense is punishable by up to twelve months in jail, a fine of up to $2,500 and loss of license for one year. Additionally, community service hours will be ordered and you will be required to complete an Alcohol Safety class.
Q: What Defenses are there in a Virginia DUI case?
A: Potential Defenses in any given Virginia DUI case are almost limitless due to the complexities of the offense. Roughly speaking, however, the majority can be broken down into the following areas:
- Intoxication is not enough: the prosecution must also prove that the defendant was operating the motor vehicle. This may be difficult if, as in the case of some accidents, there are no witnesses who observed the defendant operating the vehicle.
- Probable cause. Evidence will be suppressed if the officer did not have legal cause to (a) stop, (b) detain and (c) arrest. Sobriety roadblocks present particularly complex issues.
- Miranda. Incriminating statements may be suppressed if warnings were not given at the appropriate time.
- Implied consent warnings. If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, this may affect admissibility of the test results.
- "Under the influence". The officer's observations and opinions as to intoxication can be questioned. The circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers as "failing". Also, witnesses can testify that you appeared to be sober.
- Blood-alcohol concentration. There exists a wide range of potential problems with blood or breath testing. "Non-specific" analysis, for example: most breath machines will register many chemical compounds found on the human breath as alcohol. Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-examination of the state's expert witness and/or the Defense can hire its own forensic chemist.
- Testing during the absorptive phase. The blood or breath test will be unreliable if done while you are still actively absorbing alcohol (it takes 30 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, drinking "one for the road" can cause inaccurate test results.
- Retrograde extrapolation. This refers to the requirement that the BAC be "related back" in time from the test to the driving. Again, a number of complex physiological problems are involved here.
- Regulation of blood-alcohol testing. The prosecution must prove that the blood, breath or urine test complied with state requirements as to calibration, maintenance, etc.
Q: I have some questions about my Virginia DUI case. Where can I go for answers?
A: An experienced Virginia DUI Lawyer is the best source. At the Law Offices of Michael Pignone, you will speak directly with a Virginia DUI Lawyer who has over 10 years experience and has handled thousands of Virginia DUI cases.
Please contact me on any criminal matter at: (703) 330-3200 or fill out our contact form >>
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