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.
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.
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.
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.
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.
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