Blogs from March, 2022

St. Patrick’s Day is here and the holiday is always a festive time here in Virginia Beach. That means sobriety checkpoints will most likely be set up at multiple places that are well-populated with bars and restaurants. In this atmosphere, it’s not hard for even a well-intentioned, responsible person to get ensnared in the DUI (Driving Under the Influence) net.

DUI in Virginia comes with serious sanctions. Even a first offense can land you in jail for as long as a year. A third conviction can be penalized with up to five years behind bars. Even if you don’t get a jail sentence, DUIs still come with fines, they damage your record and make getting car insurance either more expensive or flat-out impossible. All of which is to say that if you’re arrested for DUI in the state of Virginia, it is imperative to have a defense lawyer who understands all the nuances of DUI law and how to challenge the prosecution’s case.

Rebuttable Presumption & DUI in Virginia

The amount of alcohol in your system can be measured in two ways, via a breathalyzer or a blood test performed by the Department of Forensic Science. The final measurement–your blood-alcohol level–will then create what’s called a rebuttable presumption in court.

• If your blood-alcohol level is 0.05 or below, you are presumed to not have been under the influence.
• If your blood-alcohol level is 0.08 or higher, you are presumed to have been driving under the influence.
• What happens if you fall in between 0.05 and 0.08? Then it’s a gray area, with external factors–how you were driving, acting, speaking, etc. –determining whether you were under the influence.

These above points are what is presumed. If you are charged with DUI, it’s the role of your defense attorney to provide the rebuttal to those presumptions.

4 Ways to Challenge a DUI Charge in Virginia

You might think that if your blood-alcohol level came back at 0.09 that you’re effectively convicted. That’s not necessarily true. There are several ways the legitimacy of your arrest and even the validity of your alcohol level test can be challenged in court.

Was There Reasonable Suspicion?

Police officers cannot simply pull someone over for no reason. There must be at least reasonable suspicion. This means the officer must give the court a concrete reason for the very fact you were stopped.

Common reasons that give rise to reasonable suspicion might be a car rolling through a stop sign or having an uncomfortably close relationship with the center line in the road. Even tapping the brakes for what seems to be an excessive number of times might give an officer reasonable suspicion.

Establishing reasonable suspicion is not a high bar for the prosecution. The police don’t have to suspect you of drunk driving, just of some sort of traffic violation.

Furthermore, the United States Supreme Court has upheld the validity of sobriety checkpoints. These will be out in force in Virginia Beach on St. Patrick’s Day, as they will be on other major holidays. The Supreme Court’s ruling essentially marks the very existence of a sobriety checkpoint as reasonable suspicion.

Even so, not every St. Patrick’s Day stop will be made at a checkpoint and it’s well possible that some of those stops won’t have a credible reason behind them. When a stop is made without reasonable suspicions, all evidence collected because of that stop–like the blood-alcohol level–cannot be presented in court. In a DUI case, that means there is no case.

Was There Probable Cause?

Probable cause is sometimes used interchangeably with reasonable suspicion, but that’s not legally accurate. They are two different concepts that take place at different stages of the arrest process.

Let’s presume the police officer had reasonable suspicion to pull you over. You were drifting a little too close to the center line. Probable cause is still required in any criminal case to open an official investigation.

What does that mean in DUI cases? An officer will almost surely ask if you’ve been drinking. If you answer yes, that answer alone is probable cause for a blood-alcohol test. Alcohol containers in the car also constitute probable cause. And the police can put you through a field test–the types of exercises where you must walk a straight line or touch your finger to your nose—as a means of establishing probable cause.

The legitimacy of probable cause can be challenged. Consider the field test. Not everyone has great hand-eye coordination and not everyone will walk a perfect straight line on a rocky shoulder of the road simply because a police officer told them to. Your field test is recorded by a dashboard camera in the police car. If you believe you’re getting a raw deal, tell your attorney. The camera footage must be made available to the legal defense team. It might be argued that this field test provided no basis for any subsequent investigation, therefore requiring evidence from that subsequent investigation to be dismissed.

Was the Breath Test Accurate?

Breathalyzer tests are not infallible. Defense attorneys can explore everything from the quality of the device to other factors in your health and diet that might have caused the blood-alcohol level to appear higher than it really was.

The device that measures your blood-alcohol level must have an error rate of less than 10 percent. The officer must have passed specific training and there are standards for how these devices are to be maintained when not in use. Failure by the state on any of these points can invalidate the results the breathalyzer device produces.

Furthermore, even if the device is accurate there are several very common dietary and medical reasons that can deceive the breathalyzer.

A person with acid reflux or diabetes will “blow a higher number” than they otherwise would. The same goes with heart disease or problems with the liver.

Certain types of foods can also deceive the system, notably bread and cakes. Did the establishment you were at for St. Patrick’s Day serve up some cookies with green frosting on them? Or some Irish soda bread? Any of these could take a blood-alcohol level that might otherwise have been legal and pushed it past the limit.

Was the Blood Test Accurate?

The factors that might impact the breath test could also apply to a blood test. What’s more, there are other requirements for a blood sample that the state of Virginia must follow.

Was your blood test drawn by someone trained and qualified to do so? In this time when healthcare facilities are understaffed, a lot of people might be forced into roles they haven’t received proper training for. Drawing blood for the purposes of a DUI test might be one of them, and if your lawyer catches on to this (which they should) it can invalidate any evidence the blood test provides.

Your blood test must also meet specific storage requirements. This is no legal technicality. Storage errors can affect the way blood ferments, which can in turn lead to an inaccurate reading.

Finally, your blood test must have its chain of custody documented. Who was in possession of the sample every step of the way, from the moment it was drawn to the moment its results were documented as evidence against you? The state must be able to show who possessed it. Your lawyer needs to make the state meet that burden of proof.

An arrest for DUI is a life-changing moment, but it doesn’t necessarily have to be a life-ruining moment. The state of Virginia has specific burdens of proof that must be met, and those burdens are higher than many people may realize. The Law Offices of Daniel J. Miller know how to fight for you with the detail-oriented tenacity that you need at this time in your life.

Call us today at (757) 267-4949 or contact us online to set up an initial consultation.

Did you receive a letter from the Internal Revenue Service this January? One of those ominous-looking letters that makes you more than a little nervous about what’s inside? Then, when you opened the letter did you find out the IRS was actually asking for more money? If that happened to you, you aren’t alone. A lot of people are being informed they need to pay back their child tax credit in 2022.

How did this happen? To understand that let’s briefly look what the child tax credit is, how it was recently modified and how that modification might be causing you a financial headache today.

The Child Tax Credit

The Federal Child Tax Credit was passed by Congress in 1997 and signed into law by President Bill Clinton. The legislation implemented refundable tax credits based on the number of dependent children a person claimed on their income tax return. The size of the tax credit depended on the person’s income and filing status (single, married, etc.) and over the years grew as high as $2,000.

An important distinction in tax terms must be made–a credit is not the same as a deduction. A deduction reduces the overall income that is subject to taxation. But a credit is even more valuable–it is a reduction in the actual amount of taxes you owe.

Let’s say you make $85,000 a year. A $2,000 deduction that reduces your taxable income to $83,000 is nice, but it’s not a game-changer. But a tax credit, that takes the final amount of money you owe the IRS and knocks two grand off it? That’s a big deal.

Furthermore, the child tax credit was refundable. That means even if you only owed $1,000 in taxes, you could still get a $2,000 credit and get the difference refunded to you. There was a $1,400 cap on the refundable portion of the credit. That means in our example above, the person would get $400 back from the IRS. As an alternative to paying a thousand, that’s not bad.

It’s not hard to see why the child tax credit is significant. It was money in the pockets of lower-income parents, and for middle-class parents raising three children of their own, it was an economic lifeline.

The American Rescue Plan of 2021

The American Rescue Plan–known more casually as the most recent installment of the COVID-19 relief packages that have passed the Congress, made an expansion of the child tax credit. It was upped as high as $3,600, depending on the income and filing status of the person, along with the age of the children.

There was also one other big change the American Rescue Plan made to the child tax credit. The 2021 legislation paid the credit in advance. People got the refundable part of their credit before filing their taxes.

It’s this latter fact that brings us to your ominous-looking letter of January 2022.

How would the IRS know how much your credit be? How would they know what portion of that credit was refundable? The answer is that they looked at your 2020 tax returns and based the size of their checks on that information. It all seems fine up to now. But what happened if there was some significant life change that impacted what your 2021 tax returns actually look like?

Income Changes Lead to Overpayment

Was your income down in 2020? That was certainly the case for a lot of people in the year the pandemic hit the U.S. economy the hardest. Unless your job was classified as “essential”, you were at risk of being laid off. If you worked in sales, generating commissions was tough sledding.

The child tax credit works on a sliding scale, so those who earn less money can get a higher credit. Now, what if your job returned to normal in 2021? Or maybe you got a promotion. Anything that resulted in you earning more money in 2021 means the size of your child tax credit could have been reduced.

But under the terms of the 2021 legislation, the advance payment of your refundable tax credit was based on your 2020 income. Under previous tax law, the size of your income and tax credit would have just risen and fallen together. The terms of the American Rescue Plan created a disjointed relationship between income tax return and the payment of tax credit. You got more money in 2021 than you otherwise would have.

The professed goal of the legislation was to get money into people’s hands quickly post-pandemic and stimulate an American recovery. The flip side of  is that now the bill is due. That bill is the letter you got in January.

Divorce Impacts Child Tax Credit Payments

Another way the overpayment of tax credits might have happened is with a divorce and change in child custody. Only one parent can claim children as dependents for income tax purposes. If you were still married in 2020, the kids would have been your dependents and you got the tax credit. Let’s say that you go through a divorce which gets finalized in January 2021, and your spouse has primary custody.

You are not likely the one getting the child tax credit in these circumstances, but under the terms of the American Rescue Plan, an advance payment would have been made to you based on 2020 information. Now the IRS wants their money back.

It’s also common for divorced parents with shared custody to essentially “take turns” in using the child tax credit. Maybe 2020 was your year for the credit and 2021 belonged to your ex. I suppose it’s possible the IRS could have figured that out before cutting you a check based on 2020 information…but they didn’t. Now the IRS wants their money back

Paying Back the Refundable Tax Credit

That January letter–Letter 6419 for reference purposes–can be used in filing your returns this spring. The amount of money you were overpaid in 2021 will be applied to either increase your tax payment this year or reduce the size of your refund.

At The Law Offices of Daniel J. Miller, we know how difficult and aggravating it can be to deal with the IRS. We also know how much divorce impacts tax situations. Whatever your legal needs are, from defending yourself in court to negotiating terms in a divorce settlement, don’t hesitate to call us at (757) 267-4949 or contact us online to set up an initial consultation. .