Chapter 12 DWI Lawyer Bob Keefer: DUI Guilt Myth
CHAPTER 12
“WHAT DO I NEED TO KNOW ABOUT THE LAW IN MY STATE?”
—DUI LAW IN VIRGINIA
Differences in DUI Law in Virginia from Other States
The Virginia legal system for DUI’s has several notable differences from other state these major differences will be outlined below.
DWI and DUI in Virginia are the Exact Same Offense
In most states there is a difference between DW I, “driving while intoxicated” and DUI, “driving under the influence.” For an example, in most states driving while intoxicated is a more serious offense than driving under the influence. Other states have even a third finding available such as operating while impaired or OWI.
In Virginia, there is no difference between DUI and DWI. Virginia Code Section 18.2-266 makes it illegal to drive while intoxicated or under the influence of alcohol and/or drugs.
The Virginia Code defines intoxicated as follows: “‘Intoxicated’ means a condition in which a person has drunk enough alcoholic beverages to observably affect his manner, disposition, speech, muscular movement, general appearance or behavior.”
Blood Alcohol Content (“BAC”) relates to BAC While Driving
Another difference from many states is that Virginia looks at the blood alcohol content (“BAC”) while driving. Other states will base their legal limit on the BAC at the time of the taking of the breath or blood sample. The distinction is that Virginia motorists are able to present evidence that their BAC while driving was lower than the subsequent blood or breath test.
Under Virginia DUI law, anyone driving on the highways of Virginia has, according to Virginia’s implied consent law, given their “consent” to a breath or blood tests if they are arrested for DUI. If this test results is a .08 or above, there are are significant effects in the prosecution of one’s case. One way of proving DUI, known as the “per se” law, looks at nothing but the breath result. If it is .08 or above, the person is guilty of DUI; if it is below .08, the person is not guilty of DUI. However, since Virginia looks at the BAC at the time of driving, the defendant still has the ability to present expert testimony that his BAC while driving was in fact less than a .08.
Similarly, another way of proving DUI, looks at the .08 or higher breath result as one of the pieces of evidence in the overall trial. Although the statute says that if the BAC is .08 or above, there is a “presumption” of intoxication, the Virginia Court of Appeals ruled in 2007 that such presumptions are an unconstitutional infringement upon the Constitutional guarantee of the presumption of innocence in any criminal trial unless the language is interpreted to mean that there is not a mandatory presumption of intoxication. The Virginia Court of Appeals ruled that the courts must interpret the words “shall be presumed” to mean “may be inferred.” Thus, in a DUI prosecution under this section, the judge may infer (but is no longer required to presume) that someone is intoxicated if the prosecutor proves that they were a .08 or above while driving. Again, the defendant may present evidence that in fact his actual BAC while driving was below a .08 or that the results should not be given much weight because of issues with the machine or manner of testing. If the defendant is able to do this, then the judge may not make any inference based on the breath result.
Right to New Trial on Appeal to Circuit Court- Trial de Novo
General District Court, most commonly referred to as “traffic court” for DUI defendants, is the lower of the two trial courts in Virginia. There are no jury trials at the General District Court level. Doesn’t the Constitution of the United States guarantee a criminal defendant the right to a trial by jury? Yes.
Virginia grants anyone convicted in General District Court what is called a “trial de novo” on appeal to the higher trial level court in Virginia, known as the Circuit Court. Thus, any DUI defendant in Virginia who is unhappy with the judge’s ruling or sentence in the General District Court, has the ability to appeal to the Circuit Court and as soon as the appeal is noted, the conviction of the lower court is completely wiped off his record. I like to tell my clients that it is just like taking an eraser to a blackboard, and the client is in the exact same position that they were prior to the first trial (i.e. they are presumed to be innocent and have not been convicted of DUI.) Or, to use a golf analogy, Virginia allows all DUI clients a “Mulligan” on their first DUI trial!
The trial courts rule on both fines and jail time and license suspension issues
In many states, a DUI charge leads to two separate trials. The trial in court in front of a judge who determines whether someone is guilty and what fine and/or jail time someone receives, and in administrative license hearing in front of that state’s Division of Motor Vehicles. Virginia does not have a separate hearing for the determination of the status of someone’s driver’s license. By statute, the judge has to suspend the person’s license for a specific time based on whether this is a first or subsequent offense. The judge has the authority to grant a Restricted License allowing the person to drive to work, school, alcohol education classes and certain medical and family driving.
Virginia DUI Penalties
Administrative License Suspension (ALS)
For a first DUI offense and/or breath test refusal, your driver’s license will be automatically suspended for seven days if your BAC is 0.08 percent or higher.
For a second DUI offense and/or breath test refusal, your license will be automatically suspended for 60 days or until you go to trial, which ever comes first.
For a third DUI offense and/or breath test refusal, your license will be automatically suspended until you go to trial. Conviction of a DUI offense will result in suspension of your driver’s license and other penalties in addition to the administrative suspension.
First Offense – Penalties
i) BAC < .15
Class 1 misdemeanor (Up to $2,500 fine and 12 months in jail) with a mandatory minimum fine of $250.
ii) BAC .15 to .20
If the person’s blood alcohol level as indicated by the chemical test administered as provided in this article was at least 0.15, but not more than 0.20, he shall be confined in jail for an additional mandatory minimum period of 5 days or,
iii) BAC > .20
if the BAC level was more than 0.20, he shall be confined in jail for an additional mandatory minimum period of 10 days.
License Suspension
License revoked for 1 year. Eligible for immediate Restricted Operator’s License. Ignition Interlock required for BAC of .15 or above.
Second Offense – Penalties
A) Committed within less than 5 years from a prior offense
• Minimum $500 fine
• Confinement in Jail for one month to one year. 20 day mandatory minimum jail sentence.
• If the BAC was between .15 and .20, additional 10 days mandatory minimum jail sentence.
• If the BAC was greater than .20, additional 20 days mandatory minimum jail sentence.
B) Committed within 5 to 10 years from a prior offense
• Minimum $500 fine
• Confinement in Jail for one month to one year. 10 day mandatory minimum jail sentence.
• If the BAC was between .15 and .20, additional 10 days mandatory minimum jail sentence.
• If the BAC was greater than .20, additional 20 days mandatory minimum jail sentence.
License Suspension
License revoked for 3 years.
• 2nd conviction within 5 years- eligible for Restricted Operator’s License after 1 year. Ignition Interlock required for Restricted OL.
• 2nd conviction within 5-10 years- eligible for Restricted Operator’s License after 4 months. Ignition Interlock required for Restricted OL.
Third Offense – Penalties
A) All 3 committed within 5 years period
• Class 6 FELONY: 1-5 years imprisonment; or up to 12 months in jail and $2,500 fine.
• Mandatory minimum jail sentence of 6 months
• Mandatory minimum fine of $1,000.
B) All 3 committed more than 5 years and up to 10 year period
• Class 6 FELONY: 1-5 years imprisonment; or up to 12 months in jail and $2,500 fine.
• Mandatory minimum jail sentence of 90 days.
• Mandatory minimum fine of $1,000.
• License Suspension
License revoked indefinitely.
Fourth Offense in 10 Years- Penalties
Class 6 Felony with mandatory minimum 1 year imprisonment and mandatory minimum $1,000 fine
License Suspension
License revoked indefinitely.
Transporting Children While Under the Influence
Conviction of any DUI offense involving a juvenile passenger (age 17 or younger) in the vehicle at the time of the offense carries an additional mandatory five-day jail term in addition to all other fines and jail sentences. You may also be assessed an additional fine of at least $500 and up to $1,000.
A second DUI offense with a juvenile (age 17 or younger) in the vehicle carries an additional 80-hour community service requirement in addition to all other fines and jail sentences.
Multiple Offenders and the Trauma Center Fund
Virginia also requires anyone has been previously been convicted of DUI/DWI in any state to pay $50 to the Trauma Center Fund to subsidize the cost of emergency medical care to accident victims in alcohol or drug use car crashes.
Virginia Alcohol Safety Action Program (ASAP)
If convicted under Va. §18.2-266 (DUI/DWI statute) or Va. §46.2-341.24 (DUI/DWI of a commercial vehicle), Virginia statute requires enrollment in ASAP. This course costs between $250 and $300. The program is 20 hours long and focuses on substance abuse and driving, substance abuse and health, and self-evaluation of potential for substance abuse.
Ignition Interlock Program
Virginia requires that anyone convicted of a second DUI or anyone that has a BAC greater than .15 for their first DUI have an ignition interlock system installed. This system records the drivers BAC via breath test each time the car is started. It also requires that the driver blow into the breath analyzer ever 5-20 minutes.
8 Secrets
1. If everyone insists on their constitutional right to go to trial, the prosecutor will be in court all day.
2. In most cases, the mandatory minimum sentences for DUI are so harsh that a defendant in a DUI trial risks absolutely nothing by going to trial. Many clients ask me if a judge will penalize them with a harsher sentence if they assert their right to trial. The Virginia legislature has now raised the minimum sentence for all DUI cases to such a high level, that, if you decide to go to trial on your case, in most instances, as a practical matter, you are going to get the same sentence as the person who pleads guilty.
3. The prosecutor doesn’t want to be there. No one takes a job at a prosecutor’s office because they fantasized about prosecuting in traffic court! In most jurisdictions, the prosecutors would rather be prosecuting their felony cases than handling a traffic court docket. Furthermore, the prosecutor has 20 to 30 other cases with attorneys on the traffic court docket that they must handle that day.
4. The prosecutor is unprepared. In the vast majority of jurisdictions in Virginia, prosecutors do not look into traffic cases ahead of time. Most of my clients are shocked when I tell them that it is impossible for me to contact a prosecutor with knowledge about their case prior to the court date to discuss their case, because the prosecutors do not look into the cases ahead of time. In most jurisdictions, if someone shows up without an attorney, the prosecutor does not get involved. Thus, it is impossible for someone attempting to represent himself in these jurisdictions to discuss a possible plea bargain with the prosecutor, because the prosecutor will not speak to them. In some jurisdictions, such as Virginia Beach, there is not even a prosecutor for any traffic case, even a DUI with an attorney!
5. The police officer is unprepared. Your case is just one of an entire docket full of cases that the officer has on that date. It is not unusual for an officer to have 5 to 10 DUI cases on one date in addition to dozens of other traffic tickets. The officer often has little if any recollection of your arrest. That becomes apparent time and time again in court when I object to an officer testifying by reading from his notes and, after my objection is sustained by the judge, the officer clearly has no independent recollection of the arrest.
6. Most prosecutors know very little about the science (or lack thereof) behind field sobriety testing. At no time during law school does the professor ever say, “Today we’re going to learn about standardized field sobriety testing.” A thorough knowledge of these tests would actually hurt their cases and prevent them from making arguments that I routinely hear prosecutors make to judges while trying to argue that the results of these tests should be given more weight than they were ever intended to. For example, the three standardized field sobriety tests were only used to predict a BAC of .10 or above. Since the legal limit is now .08, there is almost no weight that a judge could give to these tests on someone with a BAC of .08 or .09.
7. The police officer did not follow proper procedures for the field sobriety tests. If a police officer receives proper training about field sobriety tests, they will be told the proper standards and procedures according to the National Highway Traffic Safety Administration (“NHTSA”). However, for example, on the “follow the pen with your eyes” test (the horizontal gaze nystagmus test, or HGN), the manual says that if the suspect moves his head during the test, the officer should use his flashlight or his free hand as a chin rest of the suspect.
In 25 years of practicing law, I have never seen an officer use anything as a chin rest for a suspect, even though in the vast majority of those cases the officer testifies that the suspect was swaying and unsteady on his feet! The manual also states that the walk-and-turn and one-leg stand test should not be done if the suspect is over 50 pounds overweight or has physical impairments that could affect his balance. The manual also states that the walk-and-turn test “requires a line that the suspect can see.” This is rarely done.
8. The breath testing equipment is inaccurate. The breath testing machine is just that- a machine. The machine uses an assumption to calculate the amount of alcohol in a person’s blood based on the amount of alcohol that is released into a person’s breath. The amount can vary from between 1100 and 3200. However, the machine uses a standard ratio of 2100, almost the average between the two.
If you exchange alcohol at the 1100 rate, the machine gives a reading twice as high as it should. On the other hand, if you exchange at the 3200 rate, it gives a reading half as high as it should. In any event, the principle is flawed and readings can vary up to 50% from the actual breath content. The manufacturers of the Intoxilyzer 5000 have flat out refused to reveal their source codes to defense attorneys. The source codes are basically the mathematical formula that the machine uses to convert a small sample of breath to a blood alcohol content number. Courts in Florida and Minnesota have already ruled that this refusal is a basis to dismiss DUI prosecutions. Virginia appeals courts have yet to rule on this issue.
CONCLUSION
A DUI charge is liable to make you feel overwhelmed and at the mercy of a Court system, police system and legal system that you do not understand. With the police and the prosecutor trying to convict you, you might think that it is useless to fight the charges against you.
The goal of this book is to help you feel more in charge of this potentially overwhelming ordeal, to shed some light on what you are going through, and to help you find a qualified defense attorney who will work to ensure that justice is done. When it comes to your case, justice means demanding that the police follow proper procedure, that only legally admissible evidence is presented at trial, and that you are not convicted on the basis of anyone’s opinion or prejudice.
Regardless of the particulars of your case, you deserve to find a lawyer who knows what your are going through, who knows what you are up against and who has years of experience going to bat for others in your situation by fighting the DUI Guilt Myth. And a chance to fight for your rights is not simply what you deserve. It’s the law.
Bob Keefer
http://www.articlesbase.com/criminal-articles/dui-guilt-myth-chapter-12-679822.html
February 28th, 2010 at 8:33 am
Do you like the beggining of my book? Any suggestions to help it?
The book is called My best friend is a Chow’an! It is book one in The secret enchanted world encounters.
Chapter 1 (unedited)
Learning a secret is like nothing you ever known. A deep dark secret that carries your heart, and gives you the excitement of keeping your mouth shut, is entertaining. But big secrets, that could mean your life, are not as easy to love. They mean keeping your big mouth shut when you get angered, not telling the one you love that you love them because it is the only way to keep the safe, and never ever telling anyone what really lies behind the shadows.
This is not the easiest thing to do, and Amy Hills easily found this out after her best friend Scott Walton told her a secret that never should have been shared.
Amy was thrown into an unpredictable world inside her own world. With the same friends, the same family, but whole new life. And a secret that was meant to stay away from the humans forever, made for the immortals ears only.
When Amy was first told of this big secret shock began to tower her whole world. New things were revealed. Myths were revealed. She kept the secrets of those who lived in the shadow away from her world. And tried to keep the unbearable truth hidden from her.
Maybe I should slow down just a bit. Maybe you should learn the secret, before we continue on to the war…
It was a dark stormy afternoon. The perfect, windy, weather to tell Amy Hills of the dreadful news.
Scott Walton had known his secret his whole life, but after turning 18 his secret was more intense than ever. And he learned many more things about being a Chow’an. And everyone knows there was a special way for every young one destined to become a Chow’an, and to learn more of the Chow’an news.
Around three months ago-the exact time Scott first saw Amy-he began to get mad easier. He was more protective. And he was not as fun as the crowd he used to be in. His old friends had dumped him off. And he, happily, became friends with Amy.
There was something he liked about Amy. Her eyes, her look, it was all beautiful. He had met many people like that, but she was down to earth. And there was something about her that persuaded him to tell her everything. Lying to someone like her was impossible. At first he tried, but he was filled with guilt. He decided to tell her everything, and trust her with both there lives. The whole relationship would have to be built on trust. The honest truth…
Amy had long naturally-silky hair. Her butt-length black hair was smooth like pure satin cloth. Soft, and beautiful. Her makeup-lined eyes were the perfect shade, of brown. A stirred creamy melted chocolate all poured into her undersized happy filled eyes. Her small lips were a glossy moisturized pink. Just one shade lighter than strawberry red. Her face had a light tan completion. Her nose was small, and not very pointy. She had long graceful legs, and a skinny figure. She was truly breathtaking.
Amy was 17, her birthday only a month away. She attended Belford KJ high. She was on her senior year, all A’s. She had a large family, with a step mom, dad, three younger sisters, one know-it-all older sister, one over-protective older brother, and two annoying younger brothers. She often did not spend time with her family. Though, she did call her real mom frequently, for advice.
On the other hand, Scott was hot, and had really hypnotizing dark black eyes. His eyes shimmered like the stars in a dark black night. The glimmer sticking out, and pulling lots of wanted attention. He had fluffy dark brown hair, which reached just below his ears. He had a flawless face. His lips were a very soft pink. He had a large long nose, and surprisingly it made his face, only look better. He didn’t have wrinkles, but he had one large crease on the bottom of his forehead. Overall, in simple words, he was handsome.
Scott was already 18…he has been for three months. Unlike Amy, Scott had a very different past, and a much smaller family. He had a small family, and that was everything he would ever want. Just him and his dad. He was haunted by the past, his mother and three sisters supposedly died in a car wreck. But, he did wish that they were around every once in awhile.
Now that you know everything you should know. It’s about time that I should probably tell you what happened when he went to tell everything. To confess this new world to Amy.
Scott looked down to the ant hills piling over a dead patch of almost yellow grass. He felt the no longer relaxing feeling, as a single rain drop fell on him, piercing his water-sensitive skin. His throat burned more, a feeling he was used to more than ever. He knew-by experience-that his eyes were bright red.
Great, another thing to scare her more, Scott thought sarcastically to himself. He hated having black, and at times red, eyes. Sometimes it scared people away from him. That was exactly what he was counting they wouldn’t do to Amy.
As Amy finally pulled up in her
February 28th, 2010 at 1:35 pm
You’d get more responses if you joined a writing/art website, like deviantart or writerscafe.org
References :