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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.