Fairfax DUI Lawyer – Virginia DWI Overview
Keep in mind:
- DWI and DUI is the same thing unless specified. In Virginia, the acronyms/terms are used interchangeably
- Nothing on this website is legal advice. Each case is unique and requires analysis by a local Virginia or Fairfax DUI lawyer.
We also suggest: “Should I Blow?” a recent article we published to explain the difference between the two times a driver suspected of DUI may be asked to blow into device used to measure Blood Alcohol Concentration (BAC): the Preliminary Breath Test (PBT) and Evidential Breath Test (test at the station).
We also suggest: “Poking holes in DUI tests”
Information from our
Fairfax DUI Lawyer:
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Vincenzes Law Criminal Law Practice
The Term DUI vs. DWI
The “Main” DUI/DWI Law Explained
Penalties Based on Offense Number
Penalties Based on BAC Level
Penalties (Under age 21)
Refusal of Breath Test
Field Sobriety Tests
Virginia DUI/DWI Defenses
Preparing for Court
ASAP Information (Alcohol Safety Action Program)
Flat Fees, Free Consultation, and 3 Generous Discounts
Your local criminal law and Fairfax DUI lawyer at Vincenzes Law knows how to challenge the prosecution in many respects, for example:
- probable cause to arrest;
- improper administration of the road-side breath test (PBT);
- reasonable suspicion to make the stop in the first place;
- standard field sobriety testing procedures and instructions (or lack thereof);
- breathalyzer test results; and more.
In Northern Virginia, and specifically Fairfax County, we have found that most people do take DUI charges very seriously. Unfortunately, some people automatically (and often incorrectly) assume a Fairfax DUI lawyer is out-of-budget, or cost-prohibitive. It is not cheap, but representation is a must.
Maybe you have heard someone in the past refer to a “drunk driving” charge or conviction as a “DUI” or “DWI.” What is the difference? This is a question we get often.We use the term “Fairfax DUI lawyer” because it is typically the term people use most often when referring to this charge and our services in this capacity.
In states outside of the Commonwealth, there may be a difference. In Virginia, the terms are both used to refer to the same thing. The more accurate term is really “DWI.” “DUI” means “Driving Under the Influence,” and DWI means “Driving while Intoxicated.” The Virginia Code uses the word “intoxicated.” See The Code of Virginia § 18.2-266 – Driving motor vehicle, engine, etc., while intoxicated, etc.
In the Commonwealth of Virginia, you can be charged with a DUI/DWI if intoxicated resulting from the consumption of any “intoxicating” substance, not just alcohol. In other words, if operating a motor vehicle in an unsafe manner as a result of a legal intoxicant like an over-the-counter medication, it is possible to be charged. There may be advantageous facts to your case, however, and we will be happy to discuss advantages and disadvantages at your initial consultation. Your local Fairfax DUI lawyer (or Fairfax DWI lawyer) will also explain to you the possible consequences if convicted. The real-world penalties will depend on many factors, including how many previous related convictions are on your record, BAC level, and more.
It is often difficult for those individuals accused of, or charged with a crime in Virginia to completely understand what the specific Virginia Code section he or she has been alleged to have violated really means. Here is an explanation (with emphasis added by our Fairfax DUI lawyer) of the main Virginia DUI/DWI law:
The first big point is to understand the term, “motor vehicle,” which means anything with an engine. The law specifically points out that mopeds are included.
Second, this law applies to “highways” (but the term “highways” really means almost every road in Virginia).
Here is what is considered unlawful in Virginia (if operating a motor vehicle on nearly every road in Virginia):
- Your blood alcohol concentration (BAC) is EQUAL TO or greater than .08.
- You are under the influence of alcohol.
- You are under the influence of ANY narcotic or ANY intoxicant or drug (of any kind, including combinations) IF you are impaired to the point that your ability to drive or operate the motor vehicle safely.
- You are under the influence of alcohol combined with any drug(s), if it impairs your ability to drive or operate the motor vehicle safely.
It is also illegal to operate a motor vehicle with a specific blood concentration (per liter of blood) of any of the following drugs:
- Cocaine (.02 milligrams of cocaine per liter of blood)
- Methamphetamine (.1 milligrams per liter of blood)
- Phencyclidine (.01 milligrams per liter of blood)
- 3,4-methylenedioxymethamphetamine (.01 milligrams per liter of blood)
More Basic DUI/DWI Virginia Pointers from a Fairfax DUI Lawyer
When it comes to obeying the Virginia “driving under the influence of alcohol and drugs” law(s), perhaps the most important thing to remember is that it is possible to be considered “under the influence” even if you have a lower BAC than otherwise listed as the legal limit. This can occur if your ability to operate/drive is impaired as a result of being under the influence of any drug or amount of alcohol.
“Legally driving under the influence” standards for drivers younger than 21 years of age and commercial drivers
As our Fairfax DUI lawyer mentioned, for adults 21 years and older, a BAC of .08% or higher is considered by law, “driving under the influence.” What does that really mean? It means you can be arrested on the spot, and likely will be, if your BAC is this high. Those drivers under the legal drinking age as well as commercial drivers are held to different standards.
- Younger than 21 years of age: .02% BAC
- Commercial drivers: .04%
Boats and watercraft
The law applies to “motor vehicles” and this includes boats and other watercraft. Just remember that if there is an engine, then the law applies. Trains are also covered.
You can be arrested without a warrant up to three hours after a crash
If you have been involved in a motor vehicle accident in Virginia, and a law enforcement official has probable cause to believe you were driving under the influence of drugs or alcohol, then you can be arrested even at your home (or other location). This does not require a warrant if it is within the three-hour period.
Important: for an explanation of “probable cause” and whether the officer in your case may or may not have had probable cause to arrest you, a Fairfax DUI lawyer or DUI lawyer serving your jurisdiction should be consulted so your facts can be analyzed professionally. There is no “one-size-fits-all” answer to a specific case involving probable cause.
Three or More DUI’s in Five Years: jail without bail
If you are arrested for DUI and have been already been convicted twice before (meaning, this is the third offense — or fourth, fifth, or so on) within the same five-year period, then you will have to remain in confinement until trial.
Fairfax DUI Attorney – Penalties
The penalties one faces for a driving under the influence conviction in Virginia depends on numerous factors. Some factors include the driver’s age, previous record, BAC, time period, and others. In this section, we first cover the DUI penalties for convicted drivers who are 21 years old or older. Second, we discuss the penalties applicable to a convicted driver who is under age 21. Remember:
A Virginia DWI/DUI is a Class 1 Misdemeanor. Thus, judges are authorized to impose up to a one year jail sentence, a $2,500 fine, or both.
As mentioned above, the penalties and repercussions to a DUI/DWI in Virginia depend on many factors. One of those factors is the criminal record of the convicted driver. Below, you will find a very general outline of various penalties related to offense number. Do not rely on these penalty descriptions if charged, because your local Fairfax DUI lawyer and defense attorney will need to analyze your facts and circumstances to give you an accurate explanation given all of your specific facts.
First DUI/DWI Offense
A first offense in Virginia will result in an administrative license suspension (meaning the officer can take your license). For a first offense, the suspension under the administrative suspension is seven days. This does not include the time a license may be suspended upon conviction. Upon conviction, the driver faces license revocation for a period of one year.
The convicted driver will face a fine of at least $250, but possibly more, and there are other costs involved. There may be court-ordered restitution (in some cases) and the indirect monetary consequences of a criminal record. In Virginia, a criminal record is for life.
Other consequences may include:
- enrollment in an Alcohol Safety Action Program (ASAP)
- Ignition interlock device.
- restricted driver’s license.
It is important to speak with an attorney if faced with a DUI/DWI charge in Virginia, regardless of whether or not it is a first offense. If charged in Fairfax County, Arlington County, Prince William County, or any other jurisdiction in or around Northern Virginia, please give a local Fairfax DUI lawyer a call to see how we may be able to help.
Second DUI/DWI Offense
The administrative license suspension, unlike the seven day period for a first offense, is for 60 days for a second offense. The minimum fine one can expect to pay is $500 if convicted, and the license revocation period upon conviction is indefinite (as opposed to one year for a first offense). Additionally, possible penalties include court-ordered restitution, an ignition interlock, and restricted license. As with all criminal charges in Virginia, it will remain on your record for life.
Second Offense Jail Time
For a second offense, the convicted driver faces the following jail sentences:
If it has been less than five years since the first conviction
There is mandatory jail time. Depending on other factors, this may be between one month to one full year.
If second offense occurs between five to 10 years of the first conviction
There is a mandatory jail sentence imposed of a minimum of 10 days.
Third DUI/DWI Offense
For a third DUI/DWI in Virginia, a driver’s license will be administratively suspended until the driver’s trial takes place (but the license may be suspended by the court for a longer time, as is always the case with an administrative license suspension). As with a second offense, there will be an indefinite license revocation.
The monetary fines are much higher for a third offense: a minimum $1,000 fine, plus restitution (if applicable). ASAP, an ignition interlock device, and possible restricted license are also possible repercussions. For a detailed understanding of the potential jail times and fines applicable to your case, ask your local Fairfax DUI lawyer.
Third Offense is a Felony
A first and second offense in Virginia within ten years may be treated as a misdemeanor given the circumstances, but a third offense is a felony. The harsh real-world consequence to this is that the driver’s vehicle can be seized/forfeited.
Third Offense Jail Time
For a third offense, the convicted driver faces the following jail sentences:
- Third offense in five year period: 6 months
- Third offense in ten year period: 90 days in jail
Fourth DUI/DWI Offense
A fourth DUI/DWI in Virginia will result in the same potential consequences and penalties as outlined above (for a third offense), however, there is a minimum one year jail sentence. Additionally, it should come as no surprise that judges lose patience and mercy for each subsequent offense (when it comes to the sentences they have the authority to impose).
Remember: the possible consequences you face if charged with DUI in Virginia depends on factors aside from the offense number. Therefore, please consult with a local Fairfax DUI lawyer if charged in Northern Virginia for a case evaluation at no-risk and no-obligation.
Please always remember the seriousness of a Virginia DUI/DWI charge. This is a criminal offense, and as a Class 1 Misdemeanor, carries a maximum penalty of 12 months in jail, a $2,500 fine, or both. That said, the typical punishment for a given case will likely be less severe if it is a first offense, and where the BAC level is not extremely high. Below you can read some various punishment standards based on our own observation and experience as a Fairfax DUI lawyer.
A note about suspended jail time
Suspended jail time is a jail sentence imposed that does not have to be served unless the convicted person violates the law in the future. In Virginia, there are mandatory minimum jail times, as well as a high probability in many cases of suspended jail time.
First offense – BAC of .14 or below…
While we cannot tell you what every court system or judge will do in the Commonwealth of Virginia, an example of a relatively typical first offense DUI/DWI in Fairfax and with BAC below .15 may lead to a:
- 30 day suspended jail sentence.
- court ordered alcohol program (ASAP).
- 1 year loss of license (but it may be possible to obtain a restricted license
to travel to work and in other circumstances).
- $600 fine (half of that possibly suspended).
- device known as an “ignition interlock” for a period of six months.
First offense – BAC between .15 and .20…
As BAC levels increase, judges offer less and less mercy. For instance, a relatively standard sentence by way of example (not a hard and fast rule) may be the same as the foregoing section, but with the following variations:
- five days of jail time (note: this is not suspended, it is mandatory).
- possible denial of a restricted license for a period of time (see below).
The judge might impose a more serious set of penalties, and one somewhat common example concerns a restricted license. In many cases of a first DUI offense with a BAC under .15, the judge may order the convicted individual’s license suspended until the start of the ASAP program.
First offense – BAC of .21 or above…
Anyone convicted of DUI/DWI with a BAC of .21 or more can expect additional mandatory jail time (it will not be suspended). For example:
- ten days in jail.
- additional length of time before the driver can obtain a restricted license.
Without a restricted license available to the convicted person, he or she will have to rely on others to get to work, attend their place of worship, school, and/or other very important places.
A note about subsequent offenses
In Virginia, a subsequent DUI/DWI offense comes with a certain requirement on the part of the prosecution (the Commonwealth attorney). This requirement is a showing of proof of a prior conviction. The prior conviction does not have to have occurred in Virginia, but it must be under a law that is substantially similar to the laws in Virginia. If faced with a subsequent offense in Northern Virginia, a local Fairfax DUI lawyer can help you understand whether or not the law of the previous conviction is substantially similar.
Second Offense (in ten years) and BAC equal to .14 or below
As with all of the examples of punishments in this section (related to BAC level), the punishments are all merely examples and not definite, based on our Fairfax DUI lawyer’s observations and experiences. For a second offense in ten years, with a BAC of .14 or below, one might face similar consequences to a first offense, but with the following variation(s):
- ten days in jail (not suspended, it is mandatory)
- possible suspended jail time.
- $500 mandatory fine.
- loss of license for three years with no restricted license possible for at least four months.
- mandatory program (ASAP).
- mandatory ignition interlock device.
Second Offense (in ten years) BAC between .15 and .20
In addition to the penalties outlined in the previous section, a convicted persons can expect an additional ten days of jail time (not suspended), thus resulting in a mandatory 20 day jail sentence.
Second Offense (in ten years) and BAC equal to .21 and up
Similar to the second offense with a BAC between .15 and .20 compared to a BAC of .14 and below, there is additional mandatory jail time for a BAC of .21 and higher. In this case, the additional mandatory jail time is for a period of 20 days. Note: for a second offense, there is a mandatory jail time of ten days, and the additional “high BAC” level of .21 or higher of 20 days, thus resulting in a mandatory minimum jail sentence of 30 days for a second offense with a BAC of .21 or higher.
Second Offense (in five years) and BAC equal to .14 or below
The penalties imposed for a second offense within five years do differ (many times significantly) compared to a second offense within ten years. It is a requirement that a conviction results in:
- at least 20 days in jail (not suspended).
- loss of license for three years or 36 months and no restricted license for a year.
As is the case for second offenses, an alcohol program (ASAP) and ignition interlock device are required.
Second Offense (in five years) and BAC between .15 and .20
One can expect 20 additional days of mandatory jail time for a minimum total of 30 days in jail, plus:
- suspended jail time.
- $500 fine or more.
- loss of license for three years.
Second Offense (in five years) and BAC equal to .21 and up
One can expect 20 additional days of jail time (20 for a second offense, and 20 for the high BAC), resulting in 40 days minimum (not suspended).
Third Offense (within ten years)
A third offense is a felony and considered far more severe than a misdemeanor. If convicted, a person can expect up to five years in jail, with a minimum of 90 days. There is no chance the 90 days will be suspended in such a case. Other mandatory significant consequences:
- mandatory $1,000 fine.
- mandatory driver’s license suspension (no time limit, it is indefinite).
For those convicted, if a driver’s license is suspended for a third offense in ten years, then it will not be allowed to be reinstated for a minimum of five years! This five year period is not definite, meaning, it may be longer. It depends on whether or not a judge grants permission. Furthermore, reinstatement requires a petition to the court.
Third Offense (within five years)
If the third offense is within a five year time frame, then there is an additional 90 day mandatory minimum jail sentence that will be imposed (for a total of six months in jail!)
The Code of Virginia § 18.2-266.1 covers the penalties for driving after illegally consuming alcohol. This code section states,
“It shall be unlawful for any person under the age of 21 to operate any motor vehicle after illegally consuming alcohol.”
The specific penalties contained in this law (18.2-266.1) apply to drivers under the age of 21 with a blood alcohol concentration (BAC) of .02 or more, but less than .08%. But persons under age 21 with a BAC of .08 or higher are penalized the same as drivers 21 or older.
How are drivers under age 21 punished if the BAC level is .02 or higher, but less than .08?
- loss of driver’s license for a period of one year from the date of conviction, and;
- a fine of $500 or 50 hours of community service.
A Class 1 misdemeanor is a serious offense, because a judge has the authorization by law to impose the following maximum penalties:
- up to one year in jail.
- up to a $2,500 fine…or both.
Under this code section, the license is suspended for a period of one year in addition to any immediate “administrative license suspension” period pursuant to Virginia Code § 46.2-391.2. This period differs depending upon the previous record of the convicted individual.
Advantage of Alcohol Safety Action Program
With regard to license forfeiture under § 18.2-266.1, an Alcohol Safety Action Program may be requested or ordered by the Court (but it is always in the Court’s discretion). The main advantage is that the Court may issue a restricted driver’s license, allowing the driver to still use his or her vehicle to travel to work, school, and/or other circumstances, if approved by the Court. If you or a child of yours has been arrested and charged with driving under the influence of drugs or alcohol in Northern Virginia, it is important to contact a lawyer. Our local Fairfax DUI attorney offers a free in-person or phone consultation, and/or a free online case-evaluation.
Unfortunately, this is a somewhat complicated area of DUI/DWI law. Whether or not your refusal is against the law depends on facts and circumstances unique to your case. The Virginia Department of Motor Vehicles’ online pamphlet, “Virginia is Tough,” states:
“You do not have the option of requesting a blood test instead of a breath test for an alcohol-related offense.”
The breathalyzer rules are much more complicated, however, and while the above statement is technically true, it may be misinterpreted by some readers. Before reading any further, please take note of the following disclaimer:
Nothing on this page is legal advice, and this information should not be relied upon if stopped and/or suspected of DWI/DUI. For legal advice related to a charge arising out of Northern Virginia, please contact our Fairfax DUI lawyer to schedule a free phone or in-person consultation.
The first point to understand is this: if you have been arrested for a DWI/DUI in Virginia, then refusing to take a breath test will result in charge of its own. This is based on the Virginia “Implied Consent” law, Virginia Code § 18.2-268.2.
Implied consent in this context means that if arrested for a DWI/DUI violation, then the consent to a blood, breath, or both tests is deemed consented to by nature of driving on a Virginia highway (recall: the term “highway” really means nearly every Virginia road).
A first refusal offense is considered “civil” in nature, while a subsequent offense is a criminal charge. The consequence for a first-time refusal in such a scenario is a one-year loss of license, and for a subsequent refusal conviction in a ten year period, a loss of license for three years. Your local Fairfax DUI lawyer can explain what this “Implied Consent” law really means when analyzed according to your facts. But note: if a person is convicted of unreasonable refusal to submit (even a first offense), and he or she has a DWI/DUI on his/her record within the previous ten years, then it is considered to be a criminal charge (Class 2 Misdemeanor); if there are two prior convictions in ten years, then it is a Class 1 Misdemeanor. The laws contain even more nuances and details: to understand how these laws apply to your charge or circumstances, please request a free consultation from a skilled Fairfax DUI lawyer (if charged in Northern Virginia).
Fairfax DUI Lawyer Answers Question: “What if there is no breath test available, or I refuse even in light of the fact it will result in another charge?”
This is the next logical question that may be on the minds of those who understand the breath test discussion up to this point. Virginia Code § 18.2-268.2 states that in the case where a breath test is “unavailable or the person is physically unable” to submit to the breath test, then a blood test “shall be given.”
If the person is arrested based upon a reasonable cause to believe the person has been driving under the influence of drugs or alcohol and he or she refuses or is unable to provide a breath test, then similarly to the preceding paragraph, the person may be required to submit to a blood test.
Another consequence of refusing to submit to a test upon arrest is that the refusal to submit may be used as evidence at a criminal trial.
What if I have not been arrested?
The first point (above) begs the question: what if I have not been arrested and am suspected of a violation of a Virginia DUI/DWI law? And, may I request a breath test? The code section (referenced in this section below) is titled, “Preliminary analysis of breath to determine alcoholic content of blood.”
Do I have a right to refuse a breath test?
If stopped and not arrested, then the answer is, “yes.” You may refuse. According to Virginia Code § 18.2-267 (C),
“Any person who has been stopped by a police officer [in Virginia] . . . or any member of the Sheriff’s Department and is suspected by such officer to be guilty of [a violation of § 18.2-266, § 18.2-266.1, or § 18.2-272(B), then that person] shall have a right to refuse to permit his breath to be so analyzed, and his failure to permit such analysis shall not be evidence in any prosecution for a violation of § 18.2-266, § 18.2-266.1, or § 18.2-272(B)].”
This is an important law, primarily due to the fact that there is a big distinction between a breath test upon a traffic stop (pre-arrest), and a breath test after arrest. Please speak with a lawyer if you are not sure whether or not a breath test refusal in your case will result in potential evidence against you, or a civil or criminal charge. If your charge occurred in Northern Virginia or Spotsylvania County, then you may wish to speak with a Fairfax DUI lawyer immediately.
Does the officer have to allow me to take a breath test?
If one is suspected but not arrested, then the answer is, “generally, yes, but it depends.” Sub section A of Virginia Code § 18.2-267 states in-part:
“Any person who is suspected of a violation of § 18.2-266 or § 18.2-266.1 (the adult main DUI/DWI law and the law that applies to persons under age 21, respectively), subsection B of § 18.2-272, or a similar ordinance shall be entitled, if such equipment is available, to have his breath analyzed to determine the probable alcoholic content of his blood . . . “
Be careful! Just because you have a right to take a breath test prior to an arrest, it does not mean it is always the smartest decision. Virginia Code § 18.2-267 states in subsection (D) that if a person requests and takes a breath test based on the above law (in quotations…subsection A), then:
“Whenever the breath sample analysis indicates that alcohol is present in the person’s blood, the officer may charge the person with a violation of an offense listed in subsection A [referring to § 18.2-266, § 18.2-266.1, or § 18.2-272 B].
The person so charged shall then be subject to the provisions of §§ 18.2-268.1 through 18.2-268.12, or of a similar ordinance [these are the laws dealing with refusal of breath test penalties and procedures, among others].”
The statute under discussion above proceeds in subsection E to explain how the evidence/results of the breath analysis,
“[S]hall not be admitted into evidence in any prosecution for [§ 18.2-266, § 18.2-266.1, or § 18.2-272 B] . . . the purpose of this subsection [E] being to permit a preliminary analysis of the alcoholic content of the blood of a person suspected of having committed [a violation of § 18.2-266, § 18.2-266.1, or § 18.2-272 B].”
If this all seems relatively complicated and difficult to follow, you are not alone. It is vital to talk to an attorney if you have a question related to a DWI/DUI charge and/or breath test. Our Fairfax DUI lawyer and legal team can help you understand how the law applies to your situation and facts.
One should not rely on anything they read on the internet other than for general information, because there is no way such general information can be reasonably relied on to provide any sort of guidance as each case is so unique. If you have not been arrested and merely stopped on suspicion, then refusing to take a breath test cannot be held against you. View the law under discussion here: The Code of Virginia § 18.2-267. One real-world consequence of refusing a breath test if suspected but not arrested of driving under the influence is that an officer could ask you to complete a field sobriety test. Field sobriety test information can found in the following sub-section of this Vincenzes Law, and Fairfax DUI lawyer‘s page.
When stopped and suspected — but not arrested — of DUI/DWI in Virginia, the officer may ask a driver to perform several “field sobriety tests.” The officer should not command or otherwise order the person to perform the test: instead, the officer should always ask. Three highly accepted and common tests include the following:
- the one-leg stand;
- the horizontal gaze nystagmus (HGN); and,
- the “walk-then-turn” test.
These three tests have been vetted and approved by the National Highway Traffic Safety Administration (NHTSA). For information on whether your test was properly conducted under the circumstances, please speak to a Fairfax DUI lawyer if your case arises out of the general Northern Virginia area. Law enforcement do not solely use these three tests regardless of NHTSA approval.
Fairfax DUI Lawyer Explains: One-legged Stand Test
If asked to complete this sobriety test, expect the officer to request you to stand on one leg and raise your other leg so that your foot is approximately six inches above ground. Then, expect to have to count to a requested number verbally.
Fairfax DUI lawyer explains: How drivers fail the one-legged-stand
If the suspected driver starts too early, waives his arm or arms in an attempt to balance, or fails to count coherently or accurately, then the officer will make note (in a negative way, for the suspected driver). According to the NHTSA’s research, a person suspected of DWI/DUI raising two or more “red flags” or, “indicators” when attempting this one-legged stand test, has a BAC of .08 (or higher) a somewhat shocking 83% of the time.
Fairfax DUI Lawyer Explains: HGN Test
Many people are familiar with this test, because they have seen it used in the movies or television. It involves an officer moving an object (such as a flashlight) back and forth. The driver is asked to use only his or her eyes to follow the object.
Fairfax DUI lawyer explains: How drivers fail the HGN test
The HGN test, first of all, is not the best test for an officer to use. The reason being that in some Northern Virginia Courts (including Fairfax), many judges require an expert to testify as to the usefulness of the test. This makes the case that much more difficult for the Commonwealth. However, if it is used, the officer will look for:
“bouncing” or jerky eye movement. A completely sober person’s eyes should be able to follow the moving object back and forth without “bouncing” or jerking. Furthermore, the suspected driver who moves his or her head and forgets the directions will trigger more suspicion of driving under the influence.
Fairfax DUI Lawyer Explains: Walk/Turn Test
The “Walk and Turn” test is possibly even more well-known by those who watch television and movies, as it is the test that is completed by placing one foot in front of the other, in order to walk in a straight line. After taking the requested number of steps (heel to toe), the person is told to pivot and turn around. Before the officer tells the individual to start the test, he will tell the suspect to stand with one foot in front of the other and not to move as he explains the instructions.
Fairfax DUI lawyer explains: How drivers fail the “Walk and Turn” test
A driver may trigger a “red flag” or “indicator” of driving under the influence if he/she:
- Starts walking before the officer gives the go-ahead.
- Cannot stay in the beginning position with one foot in front of the other as directions are given.
- Steps with large gaps between the heel and toe.
- Has difficulty balancing when walking.
- Takes too few or too many steps (the officer will instruct the suspect to take a certain number of steps, for example, “take 9 steps”)
- Has difficulty balancing when pivoting.
- Uses arms to maintain balance.
According to research, when two or more “red flags” or “indicators” are observed, then there is a 79% chance that the driver has a BAC of .08 or higher.
Fairfax DUI Lawyer Explains: Other Tests
As mentioned, law enforcement may use other tests not approved by the NHTSA. Examples include:
- Asking the suspected driver to touch their nose with their finger(s).
- Asking the suspected driver to recite aloud the alphabet and/or count aloud backwards.
- Asking the suspected driver to count on their hands.
Fairfax DUI Lawyer Explains the Significance of a Field Sobriety Test
When defending a person in a DUI/DWI case in Northern Virginia, a local Fairfax DUI lawyer may challenge the legality of the arrest based on Constitutional principles under the Fourth Amendment (and under the Virginia Constitution, as well). How well a suspected and charged driver completed the tests directly relate to the officer’s ability to legally arrest the suspect.
If no breath or blood test was administered, these sobriety tests are even more significant. Our Fairfax DUI lawyer and legal team at Vincenzes Law, PLLC, may wish to obtain any recorded evidence of the tests (such as the video from the police cruiser’s camera, or in some cases, the dash camera video footage from the suspects own car). If the underlying arrest was illegal, then the DUI/DWI case will not proceed and the charged individual will be free to go.
Your local Fairfax DUI lawyer, and our legal team at Vincenzes Law, PLLC, always examine our clients’ facts and analyze them in order to determine whether one of many potential defenses apply. Common defenses to DUI/DWI in Virginia involve the arrest itself, the stop itself, facts related to the field sobriety tests, the alcohol breath and blood tests, the drug blood tests, and the results of such blood or breath tests, among others.
Fairfax DUI lawyer explains: Illegal Arrest
Many people are familiar with the terms, “probable cause” and “reasonable suspicion.” An officer must have probable cause to arrest, based upon a reasonable suspicion. But these two terms are not the only things for a defense lawyer or a local Fairfax DUI lawyer to consider.
There are specific requirements and regulations related to HOW an arrest is made. Thus, even an otherwise legal arrest based upon probable cause/reasonable suspicion may be illegally effectuated. For example, if the arrest is executed in a way that would somehow potentially lead to an inaccurate alcohol test later administered, then there may be a viable defense. Please make sure to communicate all facts as best as you can remember to your attorney. At Vincenzes Law, our Fairfax DUI lawyer will make this clear from the outset. We do not judge, and need all of the facts to properly analyze and defend your case. Everything you tell us is confidential.
Fairfax DUI lawyer explains: Illegal Traffic Stop
Before an arrest is made, the police officer must initiate a traffic stop. This may seem obvious, but the reason for such a stop — and correspondingly — the defense(s) available should the stop not be proper, is important.
“Reasonable suspicion” must exist on the officer’s part to properly and legally stop a driver suspected of a violation of law. This does not mean the police officer has to believe the driver is under the influence; the police can stop drivers for all sorts of traffic infractions, such as an improper lane change, speeding, and so on. The smell of alcohol or other indicators once stopped can then lead to a DUI/DWI investigation.
The officer must have reasonable suspicion based on his or her subjective observation of the facts and circumstances. This is why police officers cannot pull drivers over for no reason. In court, the police officer must orally explain to the judge why the driver was stopped. As a Fairfax DUI lawyer and Fairfax criminal lawyer dedicated to achieving the best possible outcomes for clients, we at Vincenzes Law strive to learn all of the facts, including the reason why the traffic stop was initiated in the first place.
Fairfax DUI lawyer explains: Improperly Conducted Field Tests
If you read through the field sobriety test section on this page, then you know that when the police have stopped a driver and then suspect him or her of driving under the influence, they may very well ask if the driver voluntarily will submit to a field sobriety test. These tests are often used at trial against the charged driver. Before an arrest or charge, however, the tests are important because how well the test is executed by the suspected driver enable the officer to gain (or not gain) the probable cause to make the arrest in the first place.
The field sobriety tests we have discussed must be employed by the police officers in Virginia properly. If improperly administered, then a Virginia or local Fairfax DUI lawyer may be able to gain a significant advantage at trial on behalf of the accused party he represents. “Probable Cause” must exist to make a legal arrest in the United States of America. In the context, it relates to the reasonable belief under the circumstances and based on the available evidence that it is likely that the stopped driver is under the influence of alcohol. If charged in Northern Virginia, a local Fairfax DUI lawyer may want to know how well you performed the field sobriety tests. In other words, if you were asked to take a test, and it was properly administered, the case may be thrown out if you did well enough for the trier of fact (judge) to rule in your favor: invalid arrest!
Fairfax DUI lawyer explains: Breath and Blood Test Issues
We live in a day and age where modern technology has enabled law enforcement officials to use machines and devices to help them in many ways. Breath and blood tests are a prime example. As anyone with a computer at home knows, technology does not always function properly. Sophistication of the device(s), in-depth training required to properly operate such devices, and the qualification of those administering the tests’ procedures are all areas our legal team and our Fairfax DUI lawyer may investigate. If the person who administers the test does not meet certain qualifications (note: in Fairfax, often a chemical test is performed in jail), the test may be invalid. Similarly, if the device has not been maintained correctly, it may be grounds to challenge the results.
Fairfax DUI lawyer explains why blood tests present even more challenges for the prosecution
When the Commonwealth wishes to use blood test results to prosecute a charged person, they must take additional steps. These steps or requirements allow for even more potential defenses at a local Fairfax DUI lawyer’s disposal.
When a blood test is administered and the results are sought to be used at trial by the prosecution, there are at least two key people who must be properly qualified for the results to be considered valid:
- The person who analyzes the blood after it is drawn; and
- The medical staff who takes the blood sample from the driver.
These two individuals must be properly certified (there are numerous requirements for proper certification and qualification). Additionally, generally speaking, the medical staff and toxicologist must appear in court. Of course, many times the officer, nurse, and toxicologist are experienced and do properly draw, analyze, and handle the blood sample. However, given the fact that blood tests require at least three people to not “mess something up,” there is always the chance that your attorney, and our local Fairfax DUI lawyer will have a defense you may have never even considered to be possible.
Fairfax DUI lawyer explains: Deficient Blood/Breath Test Result Sheets
If faced with a DUI/DWI charge, any good lawyer will at least consider and analyze any sheet alleged by the Commonwealth to contain your test results. The obvious assertion when such a defense is used is that the document is incorrect, or contains inaccurate information. If we handle a case as your Fairfax DUI lawyer, we will seek to obtain the breath/blood sheet from the designated court employee or office (generally, the clerk’s office). We can quickly look at this piece of evidence and determine whether may help your case as a result of being deficient. We can even obtain this information prior to a scheduled initial consultation and review the test sheet with you by our side during your free initial consultation. As a local Fairfax DUI lawyer, we love what we do, we take pride in what we do, and we always take measures to defend cases vigorously and leave clients feeling satisfied with how our team handles the case. We cannot guarantee results (nor can any lawyer), but we can guarantee our resilient and tenacious advocacy for our clients, as well as our approach to preparation and litigation.
A court date can be an anxiety-filled time: do not feel alone, because no matter the charge you are faced with, almost everyone has some level of nervousness when required to appear before a judge. Please understand that having skilled representation can help tremendously to prepare you for that day in court, as well the days leading up to the court hearing. As a skilled local Fairfax DUI lawyer, our legal team at Vincenzes Law makes sure clients are well-informed and at-ease to the extent possible.
Fairfax DUI lawyer, Brenton D. Vincenzes, has had more than several people say , “he must have ice water running through his veins.” There is no substitute for complete preparation, and with that level of preparation comes a sense of calm. This level of tranquility often helps the people we represent to also feel much more at ease, though we understand it may be impossible to completely relax, as this is human nature.
What to expect, generally speaking (in Fairfax)
Although we represent people in jurisdictions outside of Fairfax, the following explanation about “what to expect” is based upon a typical Fairfax County case.
Your court date for a DWI/DUI will most likely be scheduled to begin at 9:30 a.m. Although this is the time you need to be there (at the very latest), your case likely will not be heard until anywhere from a few minutes to a few hours after the scheduled time. Many different factors influence how the case proceeds on a given day, but here is a general outline of what to expect:
- First, the judge will state the names of the accused persons who do not have an attorney or Fairfax DUI lawyer.
- The defendants who have an attorney will need to stay in the courtroom unless their lawyer tells them otherwise.
- Your local Fairfax DUI lawyer will typically meet with the prosecutor from the Commonwealth’s office in a room between the hallway and courtroom. The prosecutor and police officer first meet to discuss the facts surrounding your case.
- Your Fairfax DUI lawyer will then meet with the prosecutor and police behind closed doors.
- Your lawyer will then articulate to you any pertinent information from that conversation with the Commonwealth Attorney. This information may include a plea offer, which is a proposed punishment offered should the client agree to plead guilty.
- It is up to the client to decide on whether to accept the plea agreement offered by the prosecution, but as your Fairfax DUI lawyer, your attorney will tell you whether or not it is a good deal.
When preparing for your day in court, your attorney in Virginia or local Fairfax DUI lawyer will typically always explain to you how the Alcohol Safety Action Program (ASAP) works, and whether you will likely be ordered to complete it. If convicted, the chances are extremely high you will have to complete the program.
The first step of the process is an evaluation. Our Fairfax DUI lawyer explains this first step in more detail in the following section, and will also explain in more detail in-person if consulted. There are complications if you have a restricted license, and it is important to tell your lawyer if you have been charged with DUI/DWI and currently have a restricted license. Similarly, if your license is restricted after conviction, then you or your lawyer will need to take action to endorse the license to enable you to travel to the initial evaluation. This should be done within fifteen days, no more. If this step is not properly executed, then the restricted license may be considered invalid. The reasons for not driving with an invalid license are numerous, but know it could be a probation violation.
Fairfax DUI lawyer answers: “Where will the ASAP program be administered if I was charged in jurisdiction “A” but I live in jurisdiction “B?”
The evaluation takes place in the jurisdiction where your charge originated. After the initial evaluation, however, it is possible to have the program transferred closer to where you live. Ask your Fairfax DUI lawyer if charged in Fairfax and ordered to complete ASAP how you can properly do this.
The initial evaluation process explained by a Fairfax DUI lawyer
The purpose of the ASAP initial evaluation is to determine the alcohol education program’s course or level which is correlated to the offense and facts surrounding the offense. For example, you may be required to go to ten program classes, each lasting for two hours. The ASAP workers make sure to keep accurate records and if you miss a class and are not excused, then the staff in charge of ensuring compliance may tell the judge who ordered you to participate. This is particularly significant, as any jail time suspended (as is the case in many instances), can be triggered, resulting in an active jail sentence to be served. If we represent you for your charge and you will likely be ordered to complete ASAP, then as your Fairfax DUI lawyer and legal team, the program will be explained in greater detail based upon your individual facts.
How much does ASAP cost?
The cost of ASAP may vary depending on whether certain fees apply in your case, but typically the cost is several hundred dollars (we generally tell people to expect the cost to be around $400).
Since we offer a flat-fee structure, there are no uncertain costs as may be the case with a lawyer who only offers an hourly billing structure. On top of the elimination of uncertain total legal costs, we offer no-risk and no-obligation free consultations. This means that after your free consultation, your Fairfax DUI lawyer at Vincenzes Law will quote you a flat-fee, which will allow you to assess what the total cost for representation. And on top of that, our law firm offers 3 generous discounts that you may qualify for. If you qualify for more than one discount, you can stack the discounts. Two of our discounts are available to nearly every person we talk to, regardless of occupation or age. One of our discounts is only available to seniors. Find out more about our discounts by visiting our main practice area page.
Oftentimes, citizens incorrectly assume that the cost of hiring a Virginia or local Fairfax DUI lawyer is too expensive. Our flat fee policy and our free consultation offer will allow any person, regardless of income level, to find out exactly what it will cost to handle and defend a charge. Even if you do not hire us as your Fairfax DUI lawyer, we will explain to you the strengths and weaknesses of your case based on your unique facts. There really is no excuse not to take your liberty and financial interests seriously enough to at least meet with a skilled Fairfax DUI lawyer, even if you live outside of Fairfax. A conviction could jeopardize a career, relationships, and many other important life matters.
How knowledgeable is Vincenzes Law’s Fairfax DUI Lawyer?
First off, we never judge people. We only offer support, guidance, and if hired, an aggressive and intelligent defense. We can explain in-person why the DUI laws are enforced so rigidly. But in short, the Virginia DUI laws are meant to deter drivers from driving while intoxicated, but the true purpose is to save lives and reduce alcohol-related fatalities and injuries. We believe in maintaining and friendly relationship with the police and Commonwealth prosecutors, because it serves our clients in the long-run. The Commonwealth has been working diligently on multiple fronts to reduce the number of alcohol-related accidents and fatalities occurring on Virginia roadways, but there are still hundreds of fatalities each and every year. Regardless of the legislation and statutes which authorize judges to impose very high fines and in some cases, mandatory jail time . . . and despite the “heavy hand” prosecutors in Virginia use to prosecute these cases, our local Fairfax DUI lawyer and firm and takes pride in seeing to it that the each accused client gets nothing but a fair trial and an aggressive, professional defense. This is our philosophy when we defend any person accused of any crime.
Fairfax DUI Lawyer Explains: Why “You Cannot Afford to Waste Time”
The first and most important thing for those charged with DUI to realize is that time is of the essence. We serve the general Northern Virginia area, including those charged with a DUI in Prince William County and Fairfax County (and many other Northern Virginia jurisdictions). We believe it to be crucial to your ultimate disposition to speak with a DUI lawyer if faced with a pending charge…even if it is a first DUI charge and you have no prior convictions.
The reasons you should speak with our Fairfax DUI lawyer are numerous, but here are two big ones:
First, at Vincenzes Law, our Fairfax DUI lawyer will be able to go to work planning the best possible defense for you given your facts and circumstances. This is generally always true: the more time, the better. It can take a lot of time to obtain critical pieces of evidence, draft discovery motions, and conduct our own confidential investigation. What you tell us is kept strictly confidential in the sense that as a Fairfax DUI lawyer we will not share anything a client or potential client tells us, or anything we find out as a result of working on a case. We have designed our procedures and policies to be transparent. We provide a no-risk, no-obligation experience.
The second big reason to not waste time is procedural. In Virginia, there are strict deadlines for filing certain motions or filing other potentially important papers, such as a subpoena.
If you did not take the short 3 minute true/false quiz (the video at the top of this page), you owe it to yourself to take a look. If you have been charged with a criminal offense including DUI, please do take the charge seriously and make a free, no-risk appointment with our Fairfax DUI lawyer as soon as possible.
For more reading on Virginia DUI laws from our Fairfax DUI Lawyer:
For additional information and frequently asked questions, see our DUI FAQ page.
Test your knowledge and learn some interesting statistics from the Virginia Department of Motor Vehicles by viewing this short and simple 3 minute true or false video-quiz:
DUI/DWI Virginia Code Sections and DMV References
Virginia Alcohol-Related Motor Vehicle Statistics (Calendar Years 1987-2012)
Disclaimer: this page does not contain legal advice and is for informational purposes only. The images on this page, except for the second image from the top of Brent Vincenzes Fairfax criminal lawyer and Fairfax DUI lawyer, do not represent employees or representatives of the law firm Vincenzes Law, PLLC. They are model images used with appropriate rights.
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