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In a recent case coming out of a Virginia court, the defendant appealed his convictions for driving under the influence and refusing to submit to a field sobriety test. On appeal, the defendant argued that the police officer he spoke with did not have reason to suspect that he was intoxicated, thus making it illegal for the officer to force him to submit to a breath test. The court disagreed with the defendant, citing several indictors that the officer used to suspect that the defendant had been consuming alcohol.

Facts of the Case

According to the opinion, an officer in Virginia was on patrol one evening when he came across a single-vehicle accident on the side of the road. The officer saw that a car had struck a tree, but also that the car was unoccupied with a cold hood and warm engine. The officer also noticed several beer cans outside of the car’s door.

While investigating the scene, the officer saw the defendant emerging from behind some bushes. The defendant acknowledged that the car next to the road belonged to him and explained that the crash had happened a few minutes prior because he had turned off for the exit too soon. The officer asked the defendant for his driver’s license, and the defendant could not find it, even though it was later found in one of his pockets.

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At Robinson Law, PLLC, we too often hear that our clients don’t know their rights when they are pulled over by law enforcement on the road. As we have articulated in previous blog posts, a person is legally considered to be operating under the influence of alcohol if that person’s blood alcohol content (BAC) is .08 or higher. What are a driver’s rights, though, between the initiation of the traffic stop and the BAC test? If you are a driver in Virginia, you should be well versed in your rights on the road.

When Can An Officer Ask You to Perform a BAC Test?

If a police officer ever stops you on the road and tells you they need a reading of your BAC, that officer must have what is called “probable cause” to suspect that you are under the influence of alcohol or drugs. If, for example, the officer has seen your car swerving or has noticed that your words are not making sense, that officer might have probable cause to conduct a breathalyzer test. Without any probable cause, the officer cannot legally conduct this kind of test.

If you have either been arrested for a DUI or under suspicion of a DUI, the officer can legally require you to perform a BAC test. This means that by driving on Virginia roads, you are offering your implied consent to be tested for alcohol when you are arrested for suspicion of driving while impaired. The important takeaway is that as long as you have not given the police officer reason to think you are driving under the influence, the officer has no right to test you, either through a breathalyzer or a sobriety test (i.e., asking you to walk in a straight line).

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In a recent opinion from a Virginia court, the defendant’s appeal was denied because he did not meet the technical requirements necessary in filing his appeal. On all of his court documents, the defendant listed the county instead of the Commonwealth as the prosecuting party, which the court concluded was incorrect. Due to this error, the court refused to consider the defendant’s appeal, and his original guilty verdict was affirmed.

Facts of the Case

According to the opinion, the defendant in this case was charged and convicted of driving under the influence. He was sentenced to twelve months in prison as a result of his conviction. After a sentencing hearing, the defendant appealed. He listed himself as the defendant in the case and he listed the Commonwealth of Virginia as the opposing party. Before the appeal, the case had listed the defendant as one party and the county where he resided as the opposing party, recognizing the county instead of the Commonwealth as the plaintiff. Because of the disagreement over which entity constituted the opposing party, the court had to first decide who was the proper opposing party before considering the defendant’s legal arguments in the case.

The Decision

The Commonwealth of Virginia filed a motion in the case, asking the court to remove them from any documents referencing the defendant’s DUI. According to the Commonwealth, the issue at hand was a local issue and was better suited for county lawyers rather than Commonwealth lawyers. The Commonwealth wrote to the court that the Attorney General lacks the authority to deal with “matters related to violations of local ordinances.” The Commonwealth, therefore, asked to withdraw from the case. The court agreed with the Commonwealth’s reasoning, accepting the motion to withdraw given the fact that the Attorney General does not represent localities.

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As we have noted on our blog in the past, the Commonwealth of Virginia is known for having some of the strictest DWI and DUI laws in the United States. Given this reality, it is crucial to be aware of the DUI penalties in Virginia so that if you ever find yourself facing DUI charges, you are aware of your rights under the law.

In Virginia, a person is legally considered operating under the influence of alcohol if that person’s blood alcohol content (BAC) is .08 or higher. Even if a driver’s BAC is lower than .08, though, if an officer decides the driver’s ability to operate a motor vehicle is impaired, it is possible that he or she could face the same penalties regardless. DUI penalties apply whether a driver is operating a car, boat, or watercraft.

First v. Subsequent Offenses

In Virginia, the punishment for a first DUI offense differs from that of a subsequent DUI offense. If a driver is found guilty of driving under the influence and it is his or her first time with a DUI conviction, the punishment involves a minimum $250 fine as well as driver’s license revocation for one year.

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In a recent opinion from a Virginia court, the defendant’s appeal of his DWI conviction was denied. On appeal, the defendant argued that there was not enough evidence to prove that he was driving while intoxicated, and thus that his guilty verdict was unjust. The court disagreed, rejecting the defendant’s challenge and affirming his original conviction.

Facts of the Case

According to the opinion, a State Trooper received a call just after midnight one evening asking him to respond to an accident just down the road. The Trooper quickly arrived at the scene and saw a pickup truck with damage on all sides, leading him to believe that the truck had left the road and rolled over. At the scene, the Trooper saw only the defendant, one witness, and emergency personnel who were responding to the defendant’s injuries.

The defendant was the only person at the scene who was injured. He had blood on his face and he also smelled of alcohol. When the Trooper asked the defendant what had caused the accident, the defendant replied that he did not remember. He only said that he was on his way home from a friend’s house at the time of the crash. The Trooper ran the vehicle through his system and found out that the truck was registered to a female who lived with the defendant. She was not at the scene.

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The Commonwealth of Virginia is known for having some of the strictest DWI and DUI laws in the United States. With strict policies already in place, law enforcement will be even stricter during the holiday season as they pull over potentially impaired drivers. The end of the year is a busy time for police officers, and they will be monitoring the roads even more closely as Christmas and New Year’s approach.

Now through the end of the year, 116 different Virginia law enforcement agencies will be patrolling the streets to keep drunk drivers off the road. These agencies are part of Governor Northam’s push to keep drunk driving to a minimum and to keep travelers safe over the holidays. Mindful of the fact that 272 Virginians died in car crashes involving alcohol in 2020, officers will be keen to pull over individuals that they even slightly suspect might driving be under the influence.


The difference between a DWI and a DUI in the Commonwealth of Virginia is relatively simple: a DWI involves some kind of test administered by law enforcement. An officer might give a Breath Test or a Blood Sample Test, then arrest an individual for a DWI if the driver’s blood alcohol concentration is .08 percent or higher. A DUI, on the other hand, does not have any scientific component to it. A DUI is a charge given when a driver is “observably” impaired by alcohol or drugs. No test is necessary for an officer to charge a driver with a DUI.

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If you have been a longtime driver on Virginia highways, it’s possible that you have seen what law enforcement refers to as a checkpoint. These checkpoints allow officers to stop cars and see if drivers have been drinking or violating any other traffic law. Checkpoints greatly increase the number of arrests made on the roads in Virginia, and there are certain laws about what police officers can and cannot do when conducting stops in this particular way. If you are stopped at a DUI checkpoint, it is crucial that you know your rights.

General Guidelines for DUI Checkpoints

The Fourth Amendment protects individuals from unreasonable searches and seizures. On the road, this means that a police officer cannot unreasonably search your car or unreasonably seize personal items from your car. In 1990, the Supreme Court ruled that DUI checkpoints are generally legal; however, there are restrictions on the setup and implementation of these checkpoints.

In Virginia, DUI checkpoints must be designed and implemented by senior officers at the police department. Checkpoints must be safe and cannot keep drivers detained for an unreasonable amount of time. All officers working the checkpoint must be sufficiently trained, and the checkpoint cannot be unsafe for any drivers going through it.

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Recently, an appellate court in Virginia affirmed a DUI conviction against a defendant who was determined to be the driver at the time of the crash. The court found that there was sufficient circumstantial evidence to conclude that the defendant was the driver.

The Facts of the Case

The defendant was driving a car and was involved in a single-car accident that resulted in her co-worker, who was riding in the car at the time, being ejected from the car. A witness observed the crash while at a red light, called 911, and assisted at the scene. Officers arrived at the scene and observed the defendant with glassy eyes, slurred speech, and emitting a strong odor of alcohol. The defendant admitted to drinking alcohol that evening, and after field sobriety tests were conducted on the defendant, she was arrested for DUI. During a hearing, the officer was cross-examined and stated that he could not recall the defendant’s exact answer to his question of whether the defendant was the driver of the vehicle. The officer admitted that it could have been possible that the other officers on the scene had told him that the defendant was the driver of the vehicle, which may have been the reason why his notes did not reflect the fact that he asked the defendant who had been driving.

A Virginia man accused of driving under the influence (DUI) recently appealed his conviction in front of the Court of Appeals. The man argued that the lower court erred in finding that his appeal was not timely. He argued that although Virginia Code § 16.1-132 requires notice of appeals to be filed within ten days of the conviction, the Virginia Supreme Court’s ruling pertaining to the COVID-19 pandemic tolled this requirement. However, in response, the Commonwealth contended, among other things, that the defendant waived his argument because he did not raise the issue in the circuit court. This case exemplifies the importance of abiding by the strict procedural and statutory laws surrounding Virginia DUI cases.

In this case, the court convicted the defendant in March 2020 and sentenced him to 60 days in jail, a fine, probation, and an alcohol program. The same day, in response to the pandemic, the Supreme Court suspended all court proceedings. In June 2020, the defendant filed an appeal of his conviction; however, the court entered a notice denying the appeal, citing the ten-day notice deadline. On appeal, the defendant contends that the ruling was inappropriate because of the Supreme Court’s emergency order.

Under Virginia Rule 5A:18, trial court rulings will not be considered as a basis for reversal unless “the objection was stated with reasonable certainty at the time of the ruling.” Exceptions only exist if the party can show good cause to enable the court to rule on the issue. To satisfy this rule, the objection must occur when the trial court “is in a position, not only to consider” the error but also rectify the effect. However, Code § 8.01-384(A) holds that litigants who are not given an opportunity to object to a ruling when it was made shall not have the absence of an objection prejudice them.

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Police and prosecutors often cite and prosecute defendants for various crimes in response to conduct that they see as inappropriate or unlawful. Occasionally, prosecutors will seek convictions for a crime that contains elements not met by the defendant’s conduct. Juries are not perfect and prosecutors can be persuasive, sometimes obtaining convictions for crimes that are wholly unsupported by the evidence presented at trial. The Virginia Court of Appeals recently reversed the conviction of a woman who was found guilty of contributing to the delinquency of a minor, finding that the elements of the crime were not actually proven by prosecutors at her trial.

The defendant in the recently heard case is a woman whose daughter called 911 from the backseat of the defendant’s car while being driven home. The daughter reported that her mother was driving erratically and that she was scared. Police arrived at the defendant’s house after she had made it home without incident, and performed field sobriety tests. The defendant was found to have a small amount of an anti-anxiety medication in her system, which she was legally prescribed. Police arrested the woman and charged her with DUI and contributing to the delinquency of a minor. At trial, the defendant was convicted only of the charge of contributing to the delinquency of a minor.

The defendant appealed the verdict to the state court of appeals, arguing that the elements of the charge of contributing to the delinquency of a minor were not proven by the prosecution at trial. Specifically, the defendant claimed that the prosecution provided no evidence that the child was in need of any services that the government could provide, or that the child was in continuing danger without the court’s intervention. The high court agreed with the defendant, finding that the charge of contributing to the delinquency of a minor required that prosecutors prove that the minor was in danger without court intervention and that some type of services were necessary to protect the child from harm. Because the prosecution presented no evidence on these two elements of the crime, the conviction was reversed.

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