VA Beach DUI Case for NFL Great Bruce Smith

Brice Smith pled guilty to one count of DUI in a Virginia Beach courtroom this past week. He was arrested last May after failing field sobriety tests and refusing a breathalyzer. This marks the famed defensive end’s 3rd DUI charge.

While Smith denied drinking on the night of his arrest, he later admitted that he was under the influence according to this Football News Now report. The arrest occurred after he had been drinking wine with friends in Norfolk.

Under the terms of his case he received a $1,000 fine, a one year driver’s license suspension, an alcohol safety class, and a 90 day suspended sentence. A “suspended” jail sentence simply means
that if Smith is rearrested at anytime during his probationary term, the 90 day sentence could be activated and he could be required to spend time in jail.

According to the article from Football News Now, Smith’s first DUI case was dismissed and he was acquitted, or found not guilty, the second time he was arrested for the offense. It seems as if, with his third arrest, Smith’s luck had run out.

Although this wasn’t Smith’s first arrest, the result of his prior DUI cases mean this one was treated as his first. If he had been convicted or pled guilty the last two times, he would have been facing a much more stringent sentence this time around.

For a third offense DUI you are required to serve a minimum of 3 months in jail if convicted.
Also worth noting is the effect his refusal to take a breath test may have had on his case. If you refuse a breath test and are later found to have been under the influence, you will lose your license for one year.

When facing charges of DUI, whether this is your first offense or your fourth, we can help. We understand you want the best results possible and will pull out all the stops to ensure that happens.

From challenging the stop to the breath test results, we will leave no stone unturned when it comes to fighting on your behalf. Contact our lawyers today to discuss the details of your case.

Virginia Beach Cop Charged with DUI, Hit & Run

Civilians aren’t the only ones making reckless decisions over the holidays. A Virginia Beach police officer has been charged with DUI and hit and run after an incident on December 26th.

Officer Stephane Prevot was arrested after hitting a neighbor’s mailbox that evening and was found to be under the influence of alcohol and presumably over the .08% legal limit. The department isn’t saying much at the time of this report, however.

Per regulation, Prevot has been placed on administrative leave pending further decisions. Officer Prevot has been with the department for nearly 5 years, according to the Virginian Pilot.

This is the second Va. Beach officer to face such charges this year. Officer Bryan Womble was charged with hit and run and DUI back in June. In typical fashion, he was sentenced to a short jail stint, license suspension, drug and alcohol awareness classes, and the installation of an ignition interlock device in his vehicle.

Offenses like DUI and Hit and Run apply to everyone. While it may seem like people in power get an easier shake when it comes to the law, many high ranking people charged with crimes like this end up serving a similar sentence as you or I would.

When it comes to a first offense DUI, Virginia law states you can be sentenced to a maximum of 1 year in jail and $2500 in fines. In addition, you face a driver’s license suspension lasting a year and mandatory alcohol safety classes. Depending on the circumstance of your case and your blood alcohol level, you may also be required to use an ignition interlock device when you license is reinstated.

As your DUI convictions add up, so do the penalties. Sentences get progressively worse if you have a criminal history. Knowing what type of penalty you face for your charges can be sobering but also allows you to focus on your case.

If you are facing DUI charges in Virginia, you need the assistance of an experienced local DUI attorney. As your attorney, we can challenge the reason you were stopped, challenge how the police handled your arrest, and even potentially challenge the breath test results.

Contact me today to discuss how we can move forward with your case. You need someone acting in your defense when you go before the judge.

DUI Court Series

Interesting series of reports in the Chesterfield Observer on Virginia drunk driving arrests, the court process, penalties, legal strategies used by prosectutors and defense attorneys, and the implications of the Melendez-Diaz decision.

Virginia DUI Case Causes Stir in U.S. Supreme Court

As reported by the L.A. Times, The U.S. Supreme Court allowed to let a Virginia Supreme Court ruling stand that calls into question the legality of DUI stops based only on a phoned in tip from an eyewitness.

The case arose when police received a tip of a possibly drunk driver behind the wheel of an Altima. The caller gave police a partial license plate number and description. Based on the tip, not any other factors, Joseph Harris of Richmond was pulled over and arrested for DUI.

The Virginia Supreme Court ruled the stop was an unreasonable search because the officer did not witness any signs that Harris had been drinking. In other words, they ruled that the phoned in tip did not constitute probable cause.

In a 7 to 2 vote this week, the United States Supreme Court denied the to give cert, which in a sense, backed the Virginia Court’s decision and agreed that a phoned in tip is not sufficient for a DUI stop.

As this report from The New American details, U.S. Justice John Roberts was outraged with the ruling and said it essentially gives drivers “one free swerve” before they can be questioned by police.

Roberts was one of the 2 votes to wanted to take on the case and make a ruling that would apply to all states. Currently, Virginia is among only 4 states that don't allow vehicle stops based on anonymous reports.

If the Court were to hear, and eventually overturn the lower court’s ruling, it would have opened the door for many other searches based solely on a witness’s tip. The Court cited a similar case in which it was ruled a citizen could not be frisked only based on an anonymous call as precedence.

There are many rules, laws, and court rulings that govern how a search and arrest can occur. When the police fail to follow these rules and procedures set up through prior court rulings and state law, they run the risk of violating a citizen’s protection against unreasonable searches and seizures, as detailed in the 4th Amendment.

When you are facing criminal charges, you want a defense attorney to look closely at the steps the police followed during the arrest and investigation stages of your case. There are many instances where criminal charges are dropped because the police didn’t follow proper protocol.

If you are up against criminal charges in the Virginia courts and want to ensure every rock is unturned in the defense of your case, contact me today. I am interested in the details of your case and I am interested in working with you.

Special Legislative Session to Address Melendez-Diaz

The Virginia General Assembly passed H5007 in response to the requirements changes for admission of forensic evidence in the Melendez-Diaz case.

The law formalizes a Notice and Demand process for admission of forensic and chemical evidence in drug and DUI cases where a technician would be required to testify in support of documentary evidence.

The prosecuting Commonwealth's Attorney notifies the defense of it's intent to use forensice evidence without supporting expert testimony. If the defendant objects, it must do so formally in court. As a result, extra time will be allowed for scheduling the court appearance of the expert needed in the case.

Virginia Beach DUI Prosecutions Thwarted By Court Ruling

WTKR in Norfolk Hampton reports on Virginia Beach Commonwealth's Attorney Harvey Bryant, and his believe that a majority of the US Supreme Court "doesn't really know what they're talking about."

Prosecutors across Virginia are dealing with the aftermath of the Melendez-Diaz case, which stated that forensic expert witness testimony must be provided to support documentary evidence in cases where that evidence is used in prosecutions. The Justices determined that the Constitutional right to "confront one's accuser" is more important than the adminstrative hassles of prosecuters who would prefer to enter a document into evidence unchallenged, as has been allowed up until this ruling.

According to WTKR 10% of all DUI cases in Virginia are in Virginia Beach, and there are only 3 people in Virginia that calibrate breath test machines, the kind of forensic evidence witnesses now being sought by defense lawyers, to challenge these cases.

It is certainly likely that Virginia DUI defense lawyers are only asking for these witnesses in most cases, because they know the Commonwealth will have a tough time rounding up these experts, and they can argue for a dismissal or a reduced sentence in a plea-bargain. According to this report, that's already happened in a number of Virginia Beach DUI cases.

But there is a good chance that this is only a temporary tactical advantage for the defense. As soon as Virginia fixes this imbalance and is able to provide the witnesses, in most situations, drunk driving defense lawyers won't bother in cases where the witness is unlikely to provide any reasonable doubt that would help the defendent.

Constitutionally guaranteed rights are inconveneint for the state by design. The easiest thing for the state would be for police to arrest people and sentence them to jail time on the spot. But no one thinks that is a good idea.

The principle of innocent until proven guilty is paramount under the law. And the balance of power has been shifting to the prosecution for decades. This is one small win for the rights of the accused.

Just because it is a hassle for prosecutors is no reason to argue against the rights and freedoms of our citizens as envisioned by our founding fathers.

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If you are accused of a DUI in Virginia Beach or anywhere in Virginia, please contact us for a free consultation on your charges, and what we can do to fight them in court.

Melendez-Diaz to Increase Use of Virginia Drug Courts and DUI Courts?

An Update on the Previous Melendez-Diaz post:

Forensics blogger Harold Levy notes an interesting comment buried in the News Record article. One delegate suggested that this decision will create some better deals for defendants, and may result in increased use of alternate court dispositions that stress treatment.

Drug courts and DUI courts are alternative sentencing arrangements that can give a first time offender a chance to have a case dismissed after a year. If he or she completes a strict drug or alcohol treatment program, and passes mandatory drug tests or abstains from alcohol, the charged are dropped.

Currently Drug Courts in Virginia are still being used on a largely limited basis. A list of drug courts is here. Currently there is only one DUI court in Virginia, in Fredericksburg. Not all courts have drug court alternatives as an option, and not all prosecutors and judges will go along with it in every eligible case, even if it is available.

And there are downsides to accepting a drug or DUI court disposition. If you fail to complete the program, you are subject to retrial in court, and will likely face much stricter penalties than if you simply plead guilty the first time through.

But for those who complete the program, it is often a very good deal from a criminal defense perspective. And it is a good opportunity to get help with an addition problem. The research on drug courts has shown a lot of success.

It would be a shame if it took prosecutors backed into a corner to increase the use of these well-documented successful programs, that reduce recidivism, decrease the need for costly imprisonment, and truly help Virginia citizens fix their addiction problems and their lives.

If you are accused of a DUI or drug possession in Virginia, give us a call to find out your court options, and what we can do to defend you.

Court Decision a Boon For Drug Possession & DUI Defense in VA

A recent US Supreme Court decision on rules of evidence is a win for defense attorneys, and is causing administrative hassles for prosecutors across the Commonwealth.

In Melendez-Dias v. Massachusetts, the court ruled that forensic evidence reports, such as those identifying controlled substances in drug possession cases, or certifying Breathalyzer machines in DUI cases, are insufficient evidence on their own. The court determined that this evidence violated what is known as the "confrontation clause", also known as the right to confront one's accuser in court.

The net result of this decision is that prosecutors must have forensic analysts on hand to support this evidence, and the defense attorney will have an opportunity to cross examine the witnesses. The practical implication of this is that the Commonwealth only has a small number of experts available to testify in court, and there are thousands of potential cases per year where this documentation evidence has been used previously.

Virginia State Legislators Scramble to Adjust to the Reality of Melendez-Diaz

As noted in the Daily News Record and many other Virginia newspapers, the Melendez-Diaz decision is driving a special session of the Virginia General Assembly on Aug 19 to address the issue. Legislators are concerned that if they don't have an answer quickly, judges many have to dismiss many drunk driving and drug possession, if the prosecutors aren't able to provide the necessary witnesses.

Governor Kaine has stated that the situation may be able to be addressed administratively, without new legislation necessary. Commonwealth's Attorneys will have to first file notice of intent to use the documentation without the required witnesses. Presumably many defense attorneys will object, but that legal process will probably buy them time to arrange and schedule the expert witnesses.

The Commonwealth will likely need to provide emergency funding for additional forensics experts to testify in courts across the state. This will probably be the product of the special legislative session.

The bottom line is, this chaos will create some defense opportunities for lawyers in Virginia DUI and drug possession cases.

And if you are an unemployed forensics expert, stay by your phone.

Virginia Breathalyzers Under Fire

Once Again, Intoxilyzers are Under Fire

In court battles played out across the country, breathalyzer tests are used again and again to send people to jail, take away their driving privileges, and impose huge fines. More and more, however, we are learning that these little machines shouldn’t have the final say.

According to The Newspaper, in Fairfax County recently a defense attorney brought the commonly used Intoxilyzer 5000 to the attention of the court for its potential malfunctions and unreliability. When counties use machines that are nearly ten years old, there is a good chance that parts have been replaced.

In the particular machine involved in this case, the chopper motor had been replaced. While replacing car parts might not be a big deal, parts in different breathalyzers aren’t as easily substituted. A new chopper motor can throw off the reliability of the whole machine.

Interestingly the manufacture of the Intoxilyzer has up until this point refused to reveal the source code used in programming the machines. They contend it is a “trade secret”, making a further mess of many DUI convictions and trials. Without knowing for certain how effective these ancient machines are we continue to send people through the justice system that may be otherwise acquitted.

The Farifax County judge agreed to allow tests to be ran on the machine to prove effectiveness. Before this could happen, however, the prosecutor offered the defendant a sweet plea agreement allowing him to keep his license and avoid jail time.

One of these days the veil of secrecy surrounding these machines will be dropped and it is likely that some will be surprised at the rate of errors. Until that time, when facing DUI charges involving a breathalyzer test, an experienced DUI defense attorney is the key to getting the best possible results.

DUI Arrests in Virginia Beach Exceed State Average

According to an article in the Virginian-Pilot, Virginia Beach accounts for 9% of the state's DUI arrests, with only 6% of the population. The raw numbers are: 2321 arrests for DUI in Virginia Beach last year, which is nearly twice as many drunk driving arrests made by officers in Chesapeake, Norfolk, Suffolk, and Portsmouth combined.

Officers attribute these facts to the "party atmosphere" in the city, particularly in the Oceanfront area with many bars.

Of course, just because more people are arrested for DUI in Virginia Beach doesn't mean that the actual incidences of drunk driving are necessarily higher. A significant factor could be more aggressive patrols and enforcement. It's entirely likely that more people who drive while intoxicated in Virginia Beach are pulled over and prosecuted then in other parts of the state.

The Virginia Beach police department has a dedicated DUI enforcement team, and those officers receive an additional 40 hours of training specific to DUI arrests, which includes spotting potential impaired drivers, field sobriety test administration, and breath test machine operation.

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If you are arrested on a DUI charge in Virginia Beach, please contact us for a free case evaluation and defense consultation. There are always options to defend your rights and work to protect your driver's license.

Virginia Under 21 DUI Penalties

Virginia DUI laws for those under 21 are about to change. As of July 1, 2008, the "baby DUI" law penalties will become much stricter.

Under this new law, the penalty for any measurable alcohol in your system (.02% BAC) if you are under the legal drinking age in Virginia (21) will result in a 1 year license suspension, and either a minimum $500 fine, or a minimum of 50 hours of community service to be performed.

This is categorized as a Class 1 Misdemeanor, the same as an over 21 Virginia DUI (with .08% BAC).

If you've been arrested and charge with a DUI in Virginia, please contact our experienced criminal defense & DUI attorneys. Our local attorneys know the courts ,the law, and can help you challenge the courts. We look for every opportunity to beat your DUI charge, but we are also realistic and will fight for the best plea deal allowed by law, if that is in your best interests. Contact us for a free legal defense consultation and case evaluation.

Virginia Abusive Driver Fees Repealed

After less than a year, Virginia's Abusive Driver Fees have been repealed. Gov. Kaine signed the bill, which goes into effect immediately. One Senator called the fees "the biggest mistake the legislature had made in his tenure".

Abusive driver fees were enacted last year as a means to collect additional revenues for the state in cases of reckless driving, DUI, driving with a suspended license, and other Virginia traffic charges. However, they were immediately controversial, since they were simply an extra fee collected by the Virginia DMV at license or registration renewal time. Because it was a fee collected by the DMV, it did not apply to driver who are charged with any of those offenses who happened to have out of state drivers licenses.

Those who have been charged with these fees are eligible for a refund, and should contact the DMV.

Virginia Police DUI Conference

A conference for police officers was recently held in Virginia Beach at the Virginia Beach Convention Center. The focus of the event was on new techniques for police to use in DUI enforcement.

One demonstrated technique mentioned in the article was from an optometry professor. He instructed officers in the Horizontal Gaze Nystagmus test, or HGN. The Horizontal Gaze Nystagmus is a test that measures involuntary movement of the eye, and is said to be correlated with alcohol impairment.

However, many experts feel that this is a scientific test that is very difficult for an untrained police officer to give an honest assessment. What is the basis for comparison? How can the officer measure the angle of the deviation to determine if it is within normal parameters? Ultimately, the officer's analysis is pure guesswork.

For this reason, most Virginia DUI Lawyers can get HGN evidence dismissed by judges.

Virginia Igntion Interlock Bill Passes

The Virginia Senate passed the legislation to make ignition interlock devices mandatory for anyone convicted of a DUI in Virginia. When a persons license is reinstated, he or she must get one of these alcohol detected breathalyser devices attached to their car's ignition.

The device, which will be paid for by the offender, will not allow the car to start if the person's BAC is above .02%, which is the level of one drink, and is essentially a zero tolerance policy.

There are current laws in effect that make it a criminal charge to circumvent the device, have someone else blow into it, or use a car without such a device if your driver's license requires it.

Previously, an ignition alcohol device was only required in cases of multiple offenses, or if the person had registered a .15 BAC on a police breathalyser.

The new law goes into effect on Oct 1, 2008.

Please contact us for a DUI case evaluation in Virginia.

Article on Complexity of Virginia DUI Laws

Interesting article on the very complicated DUI laws here in Virgina, particularly in the case of 2nd or subsequent offenses. Particular note is made of how laws are applied, and most likely sentences by judges in Lynchburg and Bedford Counties.

It is always interesting how much justice is truly not blind, and sentencing can vary widely based on the tendencies of the judge involved.

More on the proposed DUI legislation

2/27/08 - More on the proposed DUI legislation: The bill currently being worked on in the Virginia Senate would increase penalties for teenagers who are convicted of drunk driving. If a driver is 16, 17, or 18, they would automatically lose their driver's license for one year.

2/14/08 - Update: The first offense DUI interlock law has passed the Virginia House of Delegates, and goes on to the Senate in the Virginia General Assembly. If it passes the Senate, it will become law.

The vote total was 80-18 in the house. In opposition, Delegate Ken Melvin of Portsmouth is quoted saying most people who get a DUI never get a second DUI offense, and this bill is the equivalent of "using a hammer to kill a fly."

2/10/08 - A Virginia state lawmaker is proposing a law to make anyone convicted of a single DUI/drunk driving charge install an ignition interlock device in their vehicle as a condition of license reinstatement. Under current Virginia DUI laws, An ignition interlock device is only required in cases where the person blew over a .15 BAC on a breathalyzer, or almost twice the legal limit.

We believe this is a terrible idea. It is absolutely unfair to saddle someone who could even have been under the legal limit with this burden. Or if you made a one time mistake, you have to pay for it with something that could affect your job.

Even more important, there is absolutely no credible evidence that an ignition interlock device does anything to prevent drunk driving in people who are not chronic alcoholics or multiple offenders.

More on Virginia ignition interlock devices here.