Just because you were charged with a Virginia DUI does not mean you are guilty. While every case will depend on its particular facts, it’s important to discuss your case with an attorney. Virginia DUI cases are very technical, and there are certain facts a prosecutor must prove for you to be convicted.
James Abrenio has successfully defended numerous people charged with DUIs. He’s earned outright acquittals and lesser charges at trial. This article will explore possible defenses in your case.
Why Were You Stopped in the First Place? (A discussion of “reasonable suspicion”).
When analyzing any Virginia DUI, the first issue is why were you stopped by law enforcement. The 4th Amendment of the United States Constitution protects everyone from Unreasonable Searches and Seizures. It requires that police develop “Reasonable Suspicion” that you violated a criminal or traffic law to stop you. If they lack reasonable suspicion, any evidence they obtain from the illegal stop is inadmissible. Therefore, your case may be dismissed.
Given that, you should be prepared to explain to your attorney why you were stopped. If you clearly violated a traffic law, such as running a red light, speeding, or taking an illegal U-turn, this defense will not apply.
However, many cases involve much “closer calls.” Here are a few examples that, while not involving DUI cases, focus on the meaning of reasonable suspicion:
In Commonwealth v. Webb, 56 Va. Cir. 419 (2001), the Court found a lack of reasonable suspicion when the defendant was seen weaving in a single lane. More specifically, the Defendant’s vehicle moved one complete cycle, whereby its wheels touched, but did not cross, the left lane divider, followed by a move to the right, then back to the left. The Court opined, “Defendant’s movements appear to be more in the nature of an isolated instance of mild weaving as opposed to constant weaving.”
The Court reached the opposite result, finding reasonable suspicion justifying the stop, in Neal v. Commonwealth, 27 Va. App. 233 (2001) (the defendant weaved to the center of the highway numerous times, then back to the right, constantly moving from side to side within its lane).
In Harris v. Commonwealth, 276 Va. 689 (2008), the Court found an anonymous tip of criminal activity failed to create reasonable suspicion even when coupled with “unusual” but non-criminal behavior to include driving to the side of the road and stopping.
In Rosser v. Commonwealth (Record No. 0132-14-2, Court of Appeals of Virginia from the Circuit Court of Appomattox County)(June 17, 2017)(UNPUBLISHED), in throwing out a possession of drug charge, the Court affirmed the lack of reasonable suspicion when an officer received a “be on the lookout” call from another officer of a car and driver that matched the description of the defendant, “connected with drug activity.” The officer unsuccessfully claimed that the defendant was “trying to evade contact.”
Did they have enough evidence to arrest you? (A discussion of “probable cause”).
The next issue to consider in every DUI is whether law enforcement had the right to arrest you. To justify an arrest, the Constitution requires “Probable Cause” of a DUI to justify taking you in. If the police lacked probable cause, again, your DUI charge may be thrown out.
So, how does the court determine whether there was probable cause in your case? It will look to see whether there was evidence of drunk driving in your case. This includes whether the following actions support you having drove drunk:
- Was your driving behavior consistent with drunk driving?
- Did you smell of alcohol (and/or admit to drinking alcohol)?
- Did you look drunk, such as having slurred speech, blood shot eyes, or disheveled clothes?
- Did you behave drunk, such as having difficulty getting out of your car, swaying while you were standing, or exhibiting difficultly communicating?
- How did you do on your Field Sobriety Tests (for more information about these tests, click here.
Of course, this isn’t an exhaustive list. To help, here are some cases that have considered whether probable cause existed (again, most cases don’t involve DUIs):
In US v. Brown, 401 F.3d 588 (2005), the Court dismissed a possession of firearm charge when the defendant was initially arrested for drunk in public. The Court found law enforcement lacked probable cause when the Defendant exhibited “some outward signs of having consumed alcohol. His eyes were glassy and bloodshot, his breath smelled strongly of alcohol, and he admitted that he had been drinking.” However, he exhibited no signs of physical impairment.
In Sestito v. DeBrular, 634 F. Supp. 2d 615 (2009) the Court also found no probable cause for drunk in public when the defendant admitted to consuming two beers, law enforcement showed up to his house and demanded to search, to which he refused and was agitated, and he smelled of alcohol and had blood shot eyes. Again, the Court found law enforcement lacked any signed impairment (such as slurred speed or difficulty with balance.)
Can they prove that you were drunk beyond a reasonable doubt?
If your trial court were to find that you were lawfully stopped and arrested, the next issue is whether the government can prove you guilty of DUI beyond a reasonable doubt. That means not simply that you “were probably drunk.” Indeed, they must exclude any “reasonable hypothesis of innocence.”
To do so, the same evidence used to justify your stop and arrest will be support the government’s case that you are guilty of DUI. In addition, in most cases the government will try to introduce evidence of your Blood Alcohol Level (BAC). Your BAC is typically obtained by one of two ways:
- A breathalyzer
- A blood draw
You should know whether your case involved a breathalyzer or a blood draw. The question you should discuss with your attorney is “how did they compel you to submit to either test?”
In some cases, law enforcement will obtain a warrant from a magistrate requiring you to submit to a blood draw. The other method is called “Implied Consent.”
What is Implied Consent, and some things to think about?
Under Virginia Code Section 18.2-268.2, by driving on a Virginia “highway,” you have impliedly consented to have your BAC tested so long as you were arrested for DUI “within three hours of the alleged offense.”
Further, Section 18.2-268.2 states you “shall submit to a breath test. If the breath test is unavailable or the person is physically unable to submit to the breath tests, a blood test shall be given.”
A close reading of this statute compels a discussion of a few issues with your attorney:
- What constitutes a Virginia “highway?”
- How does the “Three Hour Rule” apply in my case? (Particularly if you were involved in an accident.)
- If you had a blood draw, what does it mean to be “physically unable” to submit to a breath test and why does it matter?
The reason these questions matter is that, for the Government to introduce the BAC obtained in your case, they must answer these questions (to the extent they are applicable) in court. If they cannot, your BAC may be excluded at trial.
What happens if my BAC is inadmissible? Do I automatically win?!
To be clear, it’s possible for you to be convicted of a Virginia DUI case even if no evidence of your Blood Alcohol Content is admitted at trial. However, if it is excluded, it’s much more difficult for the Government to prove you were guilty beyond a reasonable doubt.
Therefore, it’s important that your attorney understand these issues, and other issues that may arise in your case. At Abrenio Law, we are well aware of how the above may affect your case and how to use them at trial.
Indeed, we treat every DUI case as if it’s going to trial. As we’ve written before, we recommend going to trial in your Virginia DUI case unless you are given a tangible benefit from pleading guilty.
Still have questions?
Make sure to check out our Virginia DUI Practice Page where we’ve answered many other questions you likely have. James Abrenio is a Fairfax-Based Personal Injury & Criminal Defense attorney who practices throughout Northern Virginia. You can learn more about James Abrenio, some of our Prior Results, and Read Our Reviews. Make sure to contact us at Ph. 703-570-4180 for your Free Consultation.