Driving Under the Influence (DUI or DWI) is a serious offense that carries stiff criminal penalties, along with civil penalties such as a loss of your driver’s license, as well as social stigma. Being arrested and charged with a first offense DUI is a jarring and stressful experience. The information below explains some of the questions you may have after being arrested and charged with Driving Under the Influence (DUI) in Virginia.
Should I Hire an Attorney for a DUI First Offense?
The short answer is yes. DUIs are serious, and they can also be fact intensive and quite technical. A Virginia Criminal Defense Lawyer will know what issues and facts to look for that may be helpful for your defense.
What are Field Sobriety Tests (FSTs)?
There are 3 Standard Field Sobriety Tests that are recognized by NHTSA.
- Horizontal Gaze Nystagmus (HGN)
- Walk and Turn (WAT)
- One Leg Stand (OLS)
The HGN is the test you may be familiar with where the Officer passes a pen or similar object in front of the subject’s face, and instructs them to follow it with their eyes. They are looking for “nystagmus” or small involuntary shaking/jerking of the pupils/eyes as the eyes scan back and forth, as well as when that shaking sets in.
The Walk and Turn is the test where an Officer will instruct you to take some amount (9 is common) of steps in a straight line, heel-to-toe, turn around in a set way (commonly by taking many small steps/pivots), and then going back. They are looking to see if you can maintain your balance, take the correct amount of steps, consistently touch heel-to-toe, and importantly, listen to instructions. They will also commonly have you stand heel-to-toe while they give instructions, to divide your attention.
The One Leg Stand requires you to stand on one leg, with the other raised 6 or so inches off the ground. You are expected to balance like that, keeping your arms at your side, while counting to 30 by “One-one thousand, two-one thousand, three-one thousand” etc. This is also meant to divide your attention between counting, and the task at hand (or foot). The officer will be looking to see if you put your foot to the ground, and if you raise your arms above your waist, as well as your ability to follow the counting instructions.
These tests are not mandatory. FSTs are also highly subjective, and it is unlikely that you will be let go after performing them, even if you have done them well. Generally, if you are being asked to do FSTs, the decision to arrest you has already been made, and the officer is simply looking for more evidence to be used against you at trial.
Do I Need to do a Breathalyzer?
There are two types of breath tests that might be performed if you are being arrested and charged with DUI. First, is a Preliminary Breath Test (PBT). This is the handheld device you may be asked to blow into on the side of the road. The second is the the Intox EC/IR II, which is the more substantial and reliable machine. It is stationary and kept in local law enforcement offices.
You are not required to submit to a PBT. Because a specific BAC is not require to arrest you for DUI, submitting to a PBT is unlikely to be very helpful. If you blow below a .08, you can still be arrested if the officer thinks there is other evidence of intoxication. If you blow above a .08, the PBT results will be used against you. PBT results cannot be used against you at trial to prove your guilt. However, they can be used to establish probable cause to justify your arrest.
Virginia has an Implied Consent law, that requires you to submit to the EC/IR II test at the station. This test can be use to establish your guilt at trial. While these test results are admissible in court, and more reliable, there are technical and administrative issues that a Virginia Criminal Defense Attorney can be on the lookout for.
What Does my BAC (Blood Alcohol Content) mean?
BAC is one of the ways, but not the only way, that the Commonwealth can establish intoxication in a DUI case. The simple rule is that anything .08 or higher is presumptive evidence of intoxication. However, the Commonwealth can also proceed to charge you with DUI if your BAC is under .08, if there is other evidence that you are “under the influence” of alcohol.
Va. Code 18.2-269 outlines what presumptions a Court may draw from different BAC levels:
- BAC of .05 or Less: “It shall be presumed that the accused was not under the influence of alcohol intoxicants at the time of the alleged offense.”
- BAC of .05 to BAC of .08: “Shall not give rise to any presumption that the accused was or was not under the influence of alcohol intoxicants at the time of the alleged offense, but such facts may be considered with other competent evidence in determining the guilt or innocence of the accused”
- BAC of .08 or Higher: “It shall be presumed that the accused was under the influence of alcohol intoxicants at the time of the alleged offense”
What Are The Penalties for DUI, First Offense, in Virginia?
A First Offense DUI in Virginia is a Class 1 Misdemeanor. This carries a possible jail sentence of up to 1 year, and a possible fine of up to $2,500. There is a mandatory minimum fine of $250.
A BAC of .15-.20 means there is a mandatory minimum jail sentence of 5 days.
A BAC of .20 or higher has a mandatory minimum jail sentence of 10 days.
In addition, a conviction for DUI operates to revoke your driver’s license for 1 year. However, you may be able to petition the Court for a restricted license that will allow for driving in certain circumstances such as commuting to work, medical appoints and other necessary travel.
Completion of the Virginia Alcohol Safety Action Program (VASAP) will also be required upon conviction for DUI.
Our Virginia DUI Attorneys Can Help You
Our Northern Virginia Criminal Defense Attorneys practice in Alexandria, Arlington, Fairfax, Prince William, and Loudoun. We are comitted to providing the best representation possible, and working to secure the best outcomes for our clients.
Contact Us to learn more about how we can help defend you.