4 Things: Virginia drivers do wrong after DWI

4 Things Drivers Do: (that Could Hurt a Virginia DWI Case)

We believe it is important to state at the outset: drunk driving, or driving while intoxicated (DWI in Virginia), is irresponsible.

As a local Fairfax criminal law firm serving Arlington and other popular areas, we often represent the most respected professionals who happen to have slipped up. Once that choice to get on the road has been made, however, there are several things we see over and over.

This post is meant to inform. Nothing is to be considered advice on this page. This post is purely informational. We have found that the following four points are not common knowledge, but should be, because in some cases, they make things more difficult for a local Arlington DWI or Fairfax DUI lawyer.

  1. Driver chooses to consent to a Preliminary Breath Test (PBT) on the side of the road, before arrest.

Why does this increase the chances of a guilty verdict?

Without going into too much legalese, a defense attorney will have a harder time with a motion to suppress the arrest for lack of probable cause (very important). There is much confusion amongst the public when it comes to the rules regarding rights as they relate to blood alcohol testing.

  • It is a civil violation to refuse a blood alcohol test after arrest, and conviction results in loss of driving privileges for a year.
  • Refusing to take the PBT before arrest is not a civil violation (or criminal, for that matter).

In sum: consenting to the PBT may increase the odds the person is arrested. But in the long run, consenting to the PBT may decrease the odds the individual can win a motion to suppress the arrest, and thus, the case.

  1. Driver fails to tell the officer about medical issues before field sobriety tests.

There are many, many ways field sobriety tests may be flawed under certain conditions. An obvious issue, of course, is the health and medical condition of the person taking the tests. A driver who has just been in an accident, and who is in severe pain should let this be known to the officer: for example, Tendonitis; surgery; migraine headaches; and the list goes on and on. Many conditions can affect a field sobriety test. At court, the totality of circumstances must be taken into consideration.

In some cases, hypothetically, it may be important to politely verbalize these things when asked to do so by law enforcement. If not asked about medical conditions before asked to take field sobriety tests, tell your Virginia DWI criminal lawyer.

  1. Driver passes a police officer or unmarked car and immediately applies the brakes.

While braking alone is not an issue, it can understandably lead an officer to place the vehicle under closer observation. All it takes is a traffic infraction for a stop; if followed by an odor of alcohol, be prepared for an unwanted encounter.

  1. They hire a lawyer too late, after the video of the stop and a field test gets deleted.

Different departments and agencies have differing standards and internal policies. The sooner you can make a discovery request for the video in a DWI case, the better. It is, according to our Fairfax criminal lawyer and DUI attorney, more useful to the defense than the prosecution most of the time. It is no wonder there are policies in place to delete videos after a period of time. This is why we have started to file Freedom of Information Act Requests in cases where video is allegedly unavailable. Most Fairfax County cruisers are now equipped with dash cams. Further, officers are given body microphones at training. These things, if not provided after a timely discovery request, could pose problems for a prosecutor.

Note: these four points are in no way comprehensive.

The following two tabs change content below.
Brenton D. Vincenzes is a lifelong Fairfax County resident and Fairfax Criminal Defense Lawyer. He is a member of the Virginia Association of Criminal Defense Lawyers, National College of DUI Defense, NORML, and has been awarded the following in 2014-15: Top 100 Trial Lawyer (National Trial Lawyers) Top 40 Under 40 Trial Lawyer (National Trial Lawyers) Nationally Ranked Top 10 Under 40 Defense Attorney (National Academy of Criminal Defense Attorneys) 10 Best in Client Satisfaction for Criminal Defense (American Institute of Criminal Law Attorneys) Nationally Ranked Top 1% Attorney Award Recipient (National Association of Distinguished Counsel) As a local leader, Mr. Vincenzes mentors troubled youths, volunteers his time to serve at his church, takes select pro bono clients, and strives to improve the community. Mr. Vincenzes represents men, women, and juveniles through zealous and diligent advocacy, strategic planning, and skilled trial work preparation. Mr. Vincenzes' areas of criminal law practice are broad, and include most felonies and misdemeanors such as: reckless driving, DUI & DWI, drug offenses, assault and battery, domestic violence, assault on an officer, destruction of property, alcohol offenses, firearm offenses, larceny, shoplifting, embezzlement, fraud, and other theft offenses, and moving traffic violations among others. His private legal services are available in most Northern Virginia jurisdictions, including Fairfax County, Arlington County, Prince William County, Loudoun County, Stafford County, Alexandria, Manassas, Leesburg, South Riding, and other cities and towns.



  1. Thanks so much for this! These are solid tips. In the recent political climate, I think #4 may be the most critical. Police videos are such an important element in law enforcement and the legal system nowadays, I think anyone who’s concerned with their case should pursue that footage as soon as possible.

Speak Your Mind