Dui Guilt Myth — Chapter 12
Dui Guilt Myth — Chapter 12 Chapter 12 DWI Lawyer Bob Keefer: DUI Guilt Myth
CHAPTER 12
“WHAT DO I NEED TO KNOW ABOUT THE LAW IN MY STATE?”
—DUI LAW IN VIRGINIA
Differences in DUI Law in Virginia from Other States
The Virginia legal system for DUI’s has several notable differences from other state these major differences will be outlined below.
DWI and DUI in Virginia are the Exact Same Offense
In most states there is a difference between DW I, “driving while intoxicated” and DUI, “driving under the influence.” For an example, in most states driving while intoxicated is a more serious offense than driving under the influence. Other states have even a third finding available such as operating while impaired or OWI.
In Virginia, there is no difference between DUI and DWI. Virginia Code Section 18.2-266 makes it illegal to drive while intoxicated or under the influence of alcohol and/or drugs.
The Virginia Code defines intoxicated as follows: “‘Intoxicated’ means a condition in which a person has drunk enough alcoholic beverages to observably affect his manner, disposition, speech, muscular movement, general appearance or behavior.”
Blood Alcohol Content (“BAC”) relates to BAC While Driving
Another difference from many states is that Virginia looks at the blood alcohol content (“BAC”) while driving. Other states will base their legal limit on the BAC at the time of the taking of the breath or blood sample. The distinction is that Virginia motorists are able to present evidence that their BAC while driving was lower than the subsequent blood or breath test.
Under Virginia DUI law, anyone driving on the highways of Virginia has, according to Virginia’s implied consent law, given their “consent” to a breath or blood tests if they are arrested for DUI. If this test results is a .08 or above, there are are significant effects in the prosecution of one’s case. One way of proving DUI, known as the “per se” law, looks at nothing but the breath result. If it is .08 or above, the person is guilty of DUI; if it is below .08, the person is not guilty of DUI. However, since Virginia looks at the BAC at the time of driving, the defendant still has the ability to present expert testimony that his BAC while driving was in fact less than a .08.
Similarly, another way of proving DUI, looks at the .08 or higher breath result as one of the pieces of evidence in the overall trial. Although the statute says that if the BAC is .08 or above, there is a “presumption” of intoxication, the Virginia Court of Appeals ruled in 2007 that such presumptions are an unconstitutional infringement upon the Constitutional guarantee of the presumption of innocence in any criminal trial unless the language is interpreted to mean that there is not a mandatory presumption of intoxication. The Virginia Court of Appeals ruled that the courts must interpret the words “shall be presumed” to mean “may be inferred.” Thus, in a DUI prosecution under this section, the judge may infer (but is no longer required to presume) that someone is intoxicated if the prosecutor proves that they were a .08 or above while driving. Again, the defendant may present evidence that in fact his actual BAC while driving was below a .08 or that the results should not be given much weight because of issues with the machine or manner of testing. If the defendant is able to do this, then the judge may not make any inference based on the breath result.
Right to New Trial on Appeal to Circuit Court- Trial de Novo
General District Court, most commonly referred to as “traffic court” for DUI defendants, is the lower of the two trial courts in Virginia. There are no jury trials at the General District Court level. Doesn’t the Constitution of the United States guarantee a criminal defendant the right to a trial by jury? Yes.
Virginia grants anyone convicted in General District Court what is called a “trial de novo” on appeal to the higher trial level court in Virginia, known as the Circuit Court. Thus, any DUI defendant in Virginia who is unhappy with the judge’s ruling or sentence in the General District Court, has the ability to appeal to the Circuit Court and as soon as the appeal is noted, the conviction of the lower court is completely wiped off his record. I like to tell my clients that it is just like taking an eraser to a blackboard, and the client is in the exact same position that they were prior to the first trial (i.e. they are presumed to be innocent and have not been convicted of DUI.) Or, to use a golf analogy, Virginia allows all DUI clients a “Mulligan” on their first DUI trial!
The trial courts rule on both fines and jail time and license suspension issues
In many states, a DUI charge leads to two separate trials. The trial in court in front of a judge who determines whether someone is guilty and what fine and/or jail time someone receives, and in administrative license hearing in front of that state’s Division of Motor Vehicles. Virginia does not have a separate hearing for the determination of the status of someone’s driver’s license. By statute, the judge has to suspend the person’s license for a specific time based on whether this is a first or subsequent offense. The judge has the authority to grant a Restricted License allowing the person to drive to work, school, alcohol education classes and certain medical and family driving.
Virginia DUI Penalties
Administrative License Suspension (ALS)
For a first DUI offense and/or breath test refusal, your driver’s license will be automatically suspended for seven days if your BAC is 0.08 percent or higher.
For a second DUI offense and/or breath test refusal, your license will be automatically suspended for 60 days or until you go to trial, which ever comes first.
For a third DUI offense and/or breath test refusal, your license will be automatically suspended until you go to trial. Conviction of a DUI offense will result in suspension of your driver’s license and other penalties in addition to the administrative suspension.
First Offense – Penalties
i) BAC < .15
Class 1 misdemeanor (Up to ,500 fine and 12 months in jail) with a mandatory minimum fine of 0.
ii) BAC .15 to .20
If the person’s blood alcohol level as indicated by the chemical test administered as provided in this article was at least 0.15, but not more than 0.20, he shall be confined in jail for an additional mandatory minimum period of 5 days or,
iii) BAC > .20
if the BAC level was more than 0.20, he shall be confined in jail for an additional mandatory minimum period of 10 days.
License Suspension
License revoked for 1 year. Eligible for immediate Restricted Operator’s License. Ignition Interlock required for BAC of .15 or above.
Second Offense – Penalties
A) Committed within less than 5 years from a prior offense
• Minimum 0 fine
• Confinement in Jail for one month to one year. 20 day mandatory minimum jail sentence.
• If the BAC was between .15 and .20, additional 10 days mandatory minimum jail sentence.
• If the BAC was greater than .20, additional 20 days mandatory minimum jail sentence.
B) Committed within 5 to 10 years from a prior offense
• Minimum 0 fine
• Confinement in Jail for one month to one year. 10 day mandatory minimum jail sentence.
• If the BAC was between .15 and .20, additional 10 days mandatory minimum jail sentence.
• If the BAC was greater than .20, additional 20 days mandatory minimum jail sentence.
License Suspension
License revoked for 3 years.
• 2nd conviction within 5 years- eligible for Restricted Operator’s License after 1 year. Ignition Interlock required for Restricted OL.
• 2nd conviction within 5-10 years- eligible for Restricted Operator’s License after 4 months. Ignition Interlock required for Restricted OL.
Third Offense – Penalties
A) All 3 committed within 5 years period
• Class 6 FELONY: 1-5 years imprisonment; or up to 12 months in jail and ,500 fine.
• Mandatory minimum jail sentence of 6 months
• Mandatory minimum fine of ,000.
B) All 3 committed more than 5 years and up to 10 year period
• Class 6 FELONY: 1-5 years imprisonment; or up to 12 months in jail and ,500 fine.
• Mandatory minimum jail sentence of 90 days.
• Mandatory minimum fine of ,000.
• License Suspension
License revoked indefinitely.
Fourth Offense in 10 Years- Penalties
Class 6 Felony with mandatory minimum 1 year imprisonment and mandatory minimum ,000 fine
License Suspension
License revoked indefinitely.
Transporting Children While Under the Influence
Conviction of any DUI offense involving a juvenile passenger (age 17 or younger) in the vehicle at the time of the offense carries an additional mandatory five-day jail term in addition to all other fines and jail sentences. You may also be assessed an additional fine of at least 0 and up to ,000.
A second DUI offense with a juvenile (age 17 or younger) in the vehicle carries an additional 80-hour community service requirement in addition to all other fines and jail sentences.
Multiple Offenders and the Trauma Center