DUI/DWI FAQ

Most people have no conception of how a “Restricted” License works. They are shocked when they learn that it is mandatory that they lose their driver’s license (driving privilege) for an entire year if they are convicted. They may be able to qualify for a “restricted” license for the very narrow and strict purposes of only going to work, school, doctor appointments, church, school, and healthcare for children or elderly parents; but they will also have to pay for the installation and rental of an Ignition Interlock system on their primary vehicle for a minimum of six months.

These restrictions and more are specific to the minute. They literally apply exactly to the day and time when you leave your house for these activities, and back; and require that they always take the most direct and shortest route possible between their work/home, school/home and doctor’s office, etc.

In DUI cases and in every criminal case we handle, we first find out about the Client’s social, work and family lives and obligations. Then, we get the facts of their case and explain the DUI laws to the client. We then apply the facts to the law and the law to the facts, to see where we can find “holes” in the prosecution’s case and opportunities for dismissal or reduction of the charge.

We begin finding out if there were errors in the way the police handled the traffic “stop”, the Breath test, the FST’s, the arrest, etc. to determine the best customized defense for each client.

We prepare ourselves and our clients, to be proactive and then we work together as a team. We obtain records for the Breath Test machine that the client blew into at the police station, going back two months. By doing this, we are able to look at every person who blew on that machine during the two month period prior to our client. We look for each time the machine was “down” for service, cleaning, repairs and maintenance and we look for anomalies and prior deficient breath samples, that might undercut the Breath Test results of 0.08% BAC or higher, or our client. In essence, we try to show that the Breath Test machine was unreliable when our client took the test.

During our discovery process we also obtain the written “Criminal Complaint” from the clerk of the General District Court that the arresting Police Officer wrote, after our Client’s DUI arrest, which is an important summary of the reason for the Traffic DUI stop; an outline of the Field Sobriety Tests given to the client; the PBT test result (Preliminary Breath Test on side of road, not admissible) and the BAC percentage from the police station.

We look at every one of these pieces of information as part of the puzzle of our due diligence. We determine if there was “reasonable suspicion” for the police stopping our clients; why the client was asked to get out of their vehicle; how many beers or drinks they said they had; or in the case of a blood draw if the client stated any types of drugs taken before driving (prescription or illegal).

The terms "DWI and DUI" are often used interchangeably, but in Virginia, there is a significant difference between the terms "DWI and DUI". A DWI is a drunk driving charge in which the person charged has either blown a 0.08% Blood Alcohol Concentration (BAC), or higher, or has actually had their blood drawn by a specially trained technician and analyzed by Virginia's Division of Forensic Science, and is also 0.08% BAC, or higher. In Virginia, a 0.08% BAC, or higher, means the person is presumed to be legally intoxicated. For reference, a 0.00 % BAC means that there is no alcohol in their system whereas a 0.30% BAC means that the person is in immediate danger of alcohol poisoning, likely coma or death.

When a person refuses to take a breath test at the police station or a blood test at the station or is involved in other Breath or Blood test failure scenarios, the person will be charged with both “DUI” and “Unreasonable Refusal” to take a breath or blood test. Therefore, a “DUI” technically means that there is no breath or blood test result that can be used against the person in court to prove drunk driving. Prosecutors believe that they can still prove the person guilty of “Drunk Driving” by the way the person looks, acts, walks (unsteady feet/stumbling), talks (slurred speech) and does on the roadside “Field Sobriety Tests”, etc.

Both a DWI and DUI carry the same penalties: class 1 Misdemeanor, Criminal Record with FBI, Homeland Security, NCIS, Immigration and are all filed with the Court and Police Departments nationally for the rest of their life; up to 1 year in jail; up to a $2,500.00 fine (or both); mandatory loss of driver’s license privilege; a mandatory “Ignition Interlock” device that must be paid for and have installed in your car for at least 6 months; mandatory Alcohol Safety Action Program classes; 6 negative demerit points on their DMV record; and obtaining high-risk/higher premium auto insurance for a significant period of time.

Sure, many people call me feeling as if there is nothing anybody can do for them. Maybe they have called me only because their family, spouse or friend insisted that they talk to a lawyer. They often feel this way because they know that the Commonwealth of Virginia has all of its resources, (the police, the Prosecutors and much of the law), working against them. They just feel like they don’t have a chance.

Everybody charged with a DUI can be helped and my office has successfully handled thousands of DUI cases over the past 30 years. There isn’t a single DUI case that I can think of that we have handled where we were not able to do something positive to make the outcome of the case better for our client than it was when they first picked up the phone to call and talk to us.

People come to us with having received bad advice and misinformation and want to know what can be done about their situation and how an attorney can help with it. It’s the attorney’s job to provide them with the correct information; so that when the potential client is done talking with us, they will be more informed, more optimistic and more hopeful for a positive outcome.