DWI (Driving While Intoxicated) / DUI (Driving Under the Influence)

Virginia Code Ann. § 18.2-266 defines what constitutes a DWI DUI Crime. Essentially, it explains that it shall be unlawful for a party to drive or operate a motor-vehicle, engine, moped, or train while he or she is Intoxicated Per Se (0.08 blood alcohol content and above), Under the Influence of Alcohol, Under the influence of Drugs, or Under the Influence of Alcohol and Drugs. When determining an individual’s guilt or innocence relating to Intoxication, the Court will look to the results of the defendant’s breadth test after being tested by the Intox EC/IR II machine, and the proper foundation has been laid, along with other evidentiary requirements having been met. If the defendant for some reason was not administered a breadth test, and blood has been withdrawn, chemical testing should  be available to test for either prescription drugs and/or illegal drugs in the driver’s system at the time of the offense. In these cases, defendants may request an independent analysis of the blood if done in a timely manner. It should also be noted that when a person tests positive for a set amounts of drugs in one’s system such as cocaine, methamphetamine, phencyclidine, and methylenedioxymethamphetamine, positive results will support a conviction. Lastly there are times where neither the Breathalyzer Intox EC/IR II machine was used nor a blood sample taken.   In these cases, the police may arrest based on observations such as a person’s manner, the person’s disposition from the point of first contact, the party’s speech (whether normal or slurred), muscular movements such as in the eyes and relating to the arms and legs, to idiosyncrasies of one’s appearance and behaviors (does the person look well-kept and appear cognitively intact). In all of these scenarios, the accused has most often been requested to perform The Standard Field Sobriety tests such as the Walk and Turn, the Leg lift, and also the Preliminary Breadth Test, and the Gaze Nysgamus test. These tests which have been developed and addressed by The National Highway Traffic Safety Administration (NHTSA) are widely used as standard procedure. Often times, the prosecution desires to admit these tests into evidence to prove the case.  This is not always best for your defense.  Nor should they be introduced into evidence for many reasons. It is wise to have the right attorney on your side.

Virginia Code Ann. § 18.2-269 addresses presumptions pertaining to alcohol and drug content found in blood. In this Statute, there are rebuttable presumptions once proper procedures are followed regarding the Breathalyzer and Blood tests. After a person is arrested for being intoxicated or under the influence of alcohol alone, alcohol and drugs, or only drugs, one is usually deposited into the police officer’s vehicle and taken to the magistrate to be booked.  At some point miranda rights should be given. This usually occurs when and individual is under arrest or the equivalent and interrogation is to begin. In most situations, Implied Consent is read to the accused (Va. Code Ann. § 18.2-268.2).  Essentially, Implied consent advises the accused that anyone who drives on the highways of The Commonwealth of Virginia agrees to give samples of breadth, blood or both post arrest for alleged Drunk Driving or Driving Under the Influence allegations if based on probable cause.  If the blood alcohol content was scored at a 0.05 or under, the accused is presumed not under the influence of alcohol when the alleged offense occurred. If there was more than 0.05 but less than 0.08 percent alcohol in the blood, there is no presumption either way. But realize that this result can still be considered as competent evidence. Next, if the blood alcohol level was 0.08 or above, there is a presumption the defendant was per se drunk at the time of operation of the motor vehicle.  When a party test even higher such as a 0.15 or 0.20, the party will be looking at enhanced penalties such as a mandatory minimum time of incarceration per Virginia Code Ann. § 18.2-270, a loss of license for longer periods, higher fines and more.

Virginia law has been enacted which states that it shall be unlawful for a person to unreasonably refuse a breadth test to determine the amount of alcohol in one’s system after an arrest for a DWI DUI offense or a Driving after Forfeiture of a license due to prior DWI DUI (Va. Code Ann. § 18.2-272).  If found guilty of a first violation, the Court will punish as a Civil Offense and take away the privilege to drive for one year.  This suspension will be added to any Loss of License for underlying charge(s). No restricted license will be granted although this violation is considered Civil in nature. To some, this may appear to be more of a punishment than a DWI DUI conviction. When convicted of a DWI DUI, the accused may be granted a Restricted License to operate a motor vehicle.  It is questionable the reason for severity of Punishment of the Refusal Law.  The Commonwealth of Virginia may insist it is not a punishment but simply a withdrawal of a privilege. But one cannot ignore that it is in effect and the negative consequences one will suffer without the ability to drive. Subsequent Refusals within a (10) ten year period will be considered criminal and punishments more severe.

The Virginia Department of Forensics Science often plays an integral part of DWI DUI cases.  For instance, when the ECIR II Breath Test equipment is used to measure the amount of alcohol in one’s breadth, the administrator of the test must be trained properly and apply the tests according to the correct procedure. There are worksheets to be completed. And, of course, there is a maintenance standard regarding the machines and other equipment. Copies of certain documents must be given to the defendant.  It is so important to question these issues in certain cases because the Prosecution is required to prove its case beyond a reasonable doubt. Errors be may have occurred. You do not want to be found guilty based on faulty evidence.  In addition, when dealing with Blood Samples and Toxicology, a person’s blood may be mishandled or the labeling is wrong. Although in DWI DUI cases, Certificates may be used at Court rather than checking into these matters with the actual operator of the machine, you may want to hire the Law Office of Sheryl Shane to inquire further.   

When one is afraid and desires to know the possible punishments regarding his or her DWI DUI in the Commonwealth of Virginia, the best place to look is Va. Code Ann. § 18.2-270 for penalties relating to Driving while Intoxicated and Driving under The Influence.  A first and second offense often result in misdemeanor charges so long as there are no extenuating circumstances such as maiming, death, or being caught with a child in the car while driving on a license already forfeited. In addition, Persons convicted on a third offense of DWI DUI within a five or ten year period are looking at a Felony Criminal Record. Felonies are truly convictions you want to avoid. You may have your right to vote taken away, you may not serve on a Jury, and possession and being in close proximity to a gun can land you in Prison for a substantial period of time.

Va Code Ann § 18.2-10 explains punishments for Felony Convictions.  Felonies are broken down into different classes with Felony Class One (1) being the most serious and Felony Class six (6) usually being less severe.  Most felony convictions involving alcohol result in a Class 6 felony - a term of imprisonment of not less than one year nor more than five years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $ 2,500, either or both. There are exceptions.

Misdemeanor convictions are defined in Virginia Code Ann § 18.2-11.  If you are convicted of a class one (1) misdemeanor, you can be confined in jail nor more than (12) months and a fine of no more than $2,500.00, either or both. When you are convicted of a felony under Virginia Code Ann § 18.2-10 – you will be incarcerated for not less than (1) one year or not more than (12) months and higher fines, either or both.  You must also keep in mind that you will most likely lose your right to vote, to be on a jury, to carry or knowingly be in close proximity to a gun, along with many other negative consequences.