Former prosecutor and Arlington and Fairfax DUI attorney, Erik Jurgensen, answers some frequently asked questions on Virginia DUI law.
Albo & Oblon partner, Erik Jurgensen, is a former Virginia prosecutor. On this page he answers some of the most commonly asked DUI questions.
What is the difference between DWI and DUI?
Driving while Intoxicated (DWI) and Driving Under the Influence (DUI) are separate offenses in some states. Generally, DWI is the more serious offense involving a person who has a high blood alcohol content. DUI usually refers to a person who is impaired by alcohol without regard to his blood alcohol content. Virginia, however, makes no such distinction. In Virginia, one can be convicted of DUI with or without a blood or breath test under one, unified statute.
There are at last two different ways that blood and breath tests are used to prove DUI. Some states use a “per se” theory. Under this theory, the fact that the test results are at a specific level means that the defendant is intoxicated. Virginia does not use a per se theory, rather Virginia uses a presumption theory. Under Virginia’s presumption, one is presumed to be intoxicated if his blood alcohol level is 0.08 or above. Unlike in a state with a per se test, a Virginia defendant with a blood alcohol test of 0.08 or above can present evidence that he was not intoxicated despite his high blood alcohol level in an effort to rebut the presumption created by the chemical test.
What is the definition of DUI?
DUI, set forth in Section 18.2-266 of the Virginia code, states that it is unlawful for any person to drive or operate any motor vehicle, “[w]hile such person has a blood alcohol concentration of .08% or more . . . . or while such person is under the influence of alcohol, or such person is under the influence of any narcotic drug or any other self administered intoxicant.” In English, this means that a person can be found guilty of driving while intoxicated if (a) their blood alcohol level when they were driving was .08 or more, as determined by a chemical test (this is called a “per se” statute), or (b) if the person is proven to be under the influence of alcohol or under the influence of drugs (this is called a presumption statute).
Generally, prosecutors prove a DUI case under three methods. The first — and easiest — method for the Prosecutor to convict a person is by showing that the Defendant’s blood alcohol level was a .08 or more. (This is usually done by a breath test). Under this “per se” method, if the breath test reveals a blood alcohol content of 0.08 or more, then the prosecutor need not prove anything else. The person is, by law, considered guilty of DUI. Simply stated, at that point, instead of being innocent until proven guilty, the Defendant is presumed guilty and must then prove his innocence.
The other method is used if there is no breath test or other chemical evidence. The prosecutor must prove that the person is guilty by showing that the Defendant was “under the influence” of alcohol or drugs. As stated in the introduction, the prosecutor will use driving behavior and the field sobriety tests to establish that the Defendant was under the influence.
What is the punishment for drunk driving?
NOTE: Effective July 1, 2004, Virginia changed many DUI penalties. This section addresses the new penalties.
In Virginia, a DUI is a Class 1 misdemeanor. The maximum punishment for a first offense is a $2,500 fine, one year in jail, and the loss of one’s driving privileges for one year. Generally, first-time offenders with blood alcohol levels below 0.12, who did not cause an accident, will not go to jail. Instead, the Judge will usually suspend all of the jail time he orders. This means that he will order a Defendant to serve some time (usually 30 days) in jail but, assuming the Defendant maintains generally good behavior and obeys all court orders for one year, he will not have to actually sit in jail. Thus, the sentence becomes unsupervised probation. The usual fine for a DUI is $300. Additionally, all persons convicted of DUI are, by law, required to lose their driving privileges for one year (or three years for subsequent offenses). The Judge no longer has discretion over this punishment. However, he may order restricted driving privileges which would allow one to drive to and from work. And, all persons convicted of DUI must enter the Virginia Alcohol Safety Action Program (VASAP), a drunk driving program. This program costs $300. Of course, since every Judge is different, the punishments could vary dramatically. However, the above punishment seems to be the most common.
There are some circumstances that result in extra, mandatory jail sentences based on high blood alcohol levels — even for first offense cases. If one’s blood alcohol level was between 0.15 and 0.20, there is a mandatory 5 day jail sentence. If the level was above 0.20, there is a mandatory 10 day jail sentence. In addition, if one had a blood alcohol level of 0.15 and above, he or she will be required to install an ignition interlock (breath test) device on their vehicle.
There are some circumstances that result in mandatory jail sentences based on prior offenses. For a second conviction within 10 years of a prior offense, there is a mandatory 10 day jail sentence (and 3 months for a third offense). For a second conviction within 5 years of a prior offense, there is a mandatory 20 day jail sentence (and six months for a third offense). Fourth offenses within 10 years of a prior conviction are subject to a mandatory one year in jail.
Did I have to take a breath test or any other chemical test? Was doing so a big mistake?
The answer to both questions is “yes” and “no.” The United States Constitution provides that a person shall not be required to incriminate themselves. Therefore, you have no obligation to give the police any evidence that can or will be used against you. However, the “implied consent law” in Virginia states that, as a condition of being given the privilege to drive in Virginia, you are required to take a chemical test if there is probable cause to believe that you were driving under the influence of alcohol or drugs. Thus, if a suspect refuses the chemical test, and the refusal is “unreasonable,” the suspect will lose his driving privileges in Virginia for the civil offense of “Refusing to Submit.” At the trial, the person will usually be charged with both DUI and Refusal to Submit. The prosecutor will have to prove the DUI without the use of the chemical evidence (albeit, they can tell the judge or jury that the reason they do not have the chemical evidence is that the defendant refused). This obviously is an advantage for the defendant. However, the defendant will be faced with the probable loss of his driving privileges for one year. The Courts do not give restricted driving privileges in Refusal cases.
If one refuses to submit to a breath or blood test after having previously been convicted of DUI or Refusal within 10 years, he or she will lose his or her driver’s license for 3 years if convicted. The refusal will also be a criminal charge with the possibility of a six month jail sentence (or one year jail sentence for a third offense). Whether this is constitutional is an undecided question.
What if the police officer failed to read me my rights?
There is a common misconception that when an officer fails to read a person their Miranda Rights (i.e., “You have the right to remain silent, you have a right to an attorney. . .”) the case will be dismissed. The Miranda warning only affect the admissibility of statements made by an accused after the person is arrested. For example, if a person is pulled over because his tail lights are not working and he blurts out to the police officer, “I’m drunk as a skunk and I never should have been driving!”, this can be used against the person because the person was neither arrested nor in custody. However, if the person is in handcuffs and, answering the officer’s questions says, “I was drunk as a skunk and never should have been driving”, the police cannot use this statement unless they have read the person their rights.
Why did I lose my license for 7 days, I thought I was “innocent until proven guilty”?
Virginia administratively suspends a DUI suspect’s licenses for 7 days following their initial arrest. When this law first went into effect, there were many legal challenges arguing that if a person is presumed innocent until proven guilty, it is improper to punish the person by taking his license for 7 days. However, the law is now settled. The Virginia Supreme Court has held that the 7 day license suspension is necessary for the protection of the public and, therefore, not a punishment.
Can I represent myself? What can a lawyer do for me?
Anyone can represent themselves in court, but DUI law is very complicated and the punishments are severe. DUI statutes take up 42 pages of the Virginia Code. Conversely, the statute making it illegal to murder someone is only one sentence long.
A lawyer can research your case to try to win at trial. Alternatively, if your case can’t be won, he can fight for minimum punishments. Moreover, in some Virginia counties such as Fairfax, the prosecutor will not even speak with an unrepresented Defendant. The prosecutor is so confident that an unrepresented Defendant cannot win their case, that they won’t even get involved in the case! Thus, without a lawyer in these counties, a person is unable to try to negotiate a plea bargain and avoid the risk of trial.
What’s the difference between attorneys? How can I find a qualified DUI lawyer? What will it cost?
Word of mouth is a good way to find a good lawyer in Virginia. Albo & Oblon’s lawyers work very aggressively on DUI and, when we win cases, our clients recommend us to others. Ask around in your community for the names of the top DUI lawyers. Lawyers who teach DUI defense to other lawyers are also good bets.
In order to aggressively represent a person, a great deal of work is required. The first and foremost sign of a good attorney is a lengthy interview. Since each case is different, and minor facts may have significant consequences, an in-depth interview is an absolute necessity. After the initial interview, conversation with all witnesses is a must. Early on, the attorney must fight to acquire all documentary evidence such as records of the breath test results, machine maintenance records, and the qualifications of the breath test operator. Other, little known records are available to the knowledgeable attorney.
The most experienced attorneys are those attorneys who have either been prosecutors in the past or have had an extensive amount of experience defending people of DUI. For example, when a person is a prosecutor, they prosecute 15 to 30 DUI cases a day. Thus, in a short amount of time, a prosecutor becomes an expert in this body of law.
As one can see from above, an attorney who is dedicated to aggressively representing his client in court must undertake a great deal of work well before the actual court date. Ask your potential lawyer to describe in detail what they will do for you. If he can’t rattle off a mind-numbing list of tasks off the top of his head, he probably isn’t doing those things.
Each law firm sets their own fees — and they vary widely based on a number of factors — both relevant and irrelevant. We never charge an initial consultation fee for Virginia DUI cases, however.
How can I learn more about Virginia’s court system?
Visit the Virginia Court website for answers to frequently asked questions concerning Virginia’s judicial system.