A very thorough and relatively balanced look at Virginia’s new ignition interlock law from the Washington Post – Is the new law too tough?
Starting on July 1st, anyone convicted of any first offense DUI will require a ignition interlock device installed in their vehicles in order to get their license restored. Previously the law required an interlock only in multiple offenses or other high breath test failure cases, but now it will cover anyone.
An ignition interlock is a “rolling breathalyzer”. You must provide a clean breath sample (alcohol free) in order for your car to start.
With any legal change, there are winners and losers.
The big question is: how much is public safety improved by requiring these systems to first time offenders who may have made a one time mistake, blowing just barely over the legal limit?
Obviously they are big losers in this decision. The courts may be a loser too, in that it is very possible a lot more DUI charges will go to trial. If a person for any number of reasons can’t get an ignition interlock, such as they have to drive different vehicles for their job, then it may make sense to take a chance in court to fight the charges. Even if the chances of winning are slim, some people will have nothing to lose by taking a gamble.
Interlock manufacturers and installers are also big winners. They now have state mandated customers.
But it remains to be seen how much this will truly help the citizens of the Commonwealth of Virginia make a measurable improvement in public safety.
How a Few Beers with Friends Can Go Wrong
A Suffolk man is facing serious criminal charges after being pulled over in Portsmouth this week, in a good illustration of how quickly life can change when you break the law.
Twenty-eight year old Michael Smith made a u-turn and then stopped at a green light on London Boulevard and Broad Street just before 3 p.m. on Thursday afternoon. His behavior prompted a traffic stop from a Portsmouth police officer.
The officer found Smith was under the influence of alcohol and failed “several sobriety tests.” According to WAVY-TV 10, he was then charged with felony DUI, indicating he had previous DUI convictions on his record. But that isn’t all.
The officer found a loaded AR-15 assault rifle in the vehicle, on the passenger seat but hidden from view. Smith will also face charges of carrying a concealed weapon while intoxicated.
While the news reports provide no backstory, it’s easy to see how a few afternoon beers with friends could result in a life-changing arrest. Sure, not very many of us ride around with an assault rifle on our passenger seat, but many Virginians carry weapons, whether lawfully or otherwise.
Maybe you got a promotion and had a few afternoon drinks or perhaps you were at a barbeque. Once you get behind the wheel, however, your celebratory day has the potential to turn tragic.
DUI charges can carry life changing penalties, even for a first-time offense. You could be spending time in jail, paying hefty fines, and losing your license– all for a few drinks with friends.
If you have a weapon with you, even if you are licensed to carry it, you could face additional penalties.
More than likely, Smith didn’t weigh the risks of driving intoxicated before he got behind the wheel. If he had, maybe he wouldn’t have started the car, or perhaps he would have—at the very least—put his gun safely in his home.
Most people arrested and facing criminal charges find themselves in situations they didn’t plan for, those they didn’t weigh the risks on or make a conscious decision at criminality. After the fact, most regret the actions that ultimately led to their arrest.
Fortunately, if you are caught violating a law and charged with a crime, you have options. Your regret for the incident could cause the judge to have some leniency, and working out a plea bargain with the prosecution could help you avoid jail time. Discussing all of your options with a criminal defense lawyer can help you determine the best course of action.
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.
—
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.