Mark B. Arthur: Attorney at Law

In Virginia, Drunk Driving is based on either the level of alcohol / drugs in your system or impaired driving due to alcohol or drug use. Virginia law presumes that driving is impaired when the driver reaches a blood alcohol level greater than .07. However, a person can be convicted of impaired driving with virtually any amount of alcohol or drugs in their blood stream based solely on how they are driving. Any first offense drunk driving charge is a misdemeanor punishable by up to twelve months in jail and a license suspension of an additional twelve months.  Depending on your blood alcohol level you could be facing mandatory jail time.

Second offense drunk driving requires mandatory jail. Virginia law makes a second offense drunk driving charge a misdemeanor punishable by up to one year in jail and an additional 36 months of license suspension.  After a second conviction, you may not be able to apply for a restricted license for up to one year.

Any third offense within ten years is a felony. If you are facing a third offense, the possible penalty is five years in prison and an indefinite suspension of your license.  The mandatory minimum sentence for a third offense within ten years is 90 days, unless the three offenses were committed within a five-year period, in which case the mandatory minimum sentence shall be six months.  A fourth offense within ten years is a mandatory minimum one year incarceration.

Serious injury or death. Virginia has severe penalties for drunk driving cases where a person has been seriously injured or has died. Virginia sentencing guidelines require substantial prison time for convictions of these offenses. If you are facing a serious injury or death case, it is vital that you begin immediately to work with a skilled and experienced lawyer.

The Winning Approach to Drunk Driving Charges

Technical defenses are important. There are many technical requirements for a valid investigation of a drunk driving charge. This includes both how it is investigated and the documents used for the prosecution.  Therefore it is necessary for a skilled lawyer to look carefully at each technical aspect of the case in order to make sure that the police follow the law and required procedures.   The 4^th Amendment to the Constitution is there to protect you.

Gathering all available information is vital. It is amazing how much information can be obtained by an industrious attorney who is willing to give your case the attention it deserves. Until every aspect of your case is carefully reviewed it is not possible to accurately determine how strong your defenses are. Many attorneys simply rely on a police report from a biased police officer to assess the case. You will not know what a skilled trial lawyer can do for you unless you have one working for you.

A team approach is important for a successful defense. Many times, important aspects of the defense hinge on facts which can only come from you. Open communication between you and your lawyer is necessary.

If You are Stopped by a Police Officer

Most of the evidence used to prosecute a drunk driving case comes directly from the defendant. This doesn't have to be the case. It is important to know what your rights and legal obligations are. If you are stopped by a police officer, consider the following:

• Virginia law does not require you to tell the officer if you have been drinking, how much you have been drinking, or where you have been drinking. It is always appropriate to tell the officer that you would like to speak with an attorney before answering such questions.
• Virginia law does not require you to participate in any field sobriety tests. Officers typically ask individuals to walk heel-to-toe, stand on one leg, recite the alphabet, count forwards and backwards and perform various other dexterity tests. You have Constitutional protection against self-incrimination and are not required to help the officers build a case against you in this way.
• If you choose to conduct field sobriety tests, always tell the officer if there is something that prohibits you from completing the test. For example, if you have had a knee injury or a back injury, you may not be able to perform a heel-to-toe test or a one legged stand. If you are dyslexic or have a learning disability, you may not be able to successfully recite the alphabet or count backwards. If you are unable to perform a task successfully for some reason, you should decline to take the test rather than take it and perform poorly.
• Virginia law does not require taking a preliminary breath test and the level cannot be used against you in court.  However, if you refuse, it can be used against you in court to justify the arrest.

If You Are Facing Drunk Driving Charges

Let's begin with the understanding that the police are not your friends and they are not there to help you.  It is legal for the police to lie to you.  Promises made by the police are not enforceable. Miranda warnings may not help you, so if the police are investigating:

• Do not talk.  Be polite and courteous, but refuse to discuss their investigation with them.  You should plainly and repeatedly tell them that you do not want to discuss anything with them and that you want an attorney present.  Do not allow yourself to be tricked or coerced by the police.
• Anything you say about the case to anyone, including most family members, can be used against you in court.  Many defendants hurt their case by discussing it with family, friends, co-workers, police officers and prosecutors.  If you have made such statements, we will deal with it together.  If you have not, DON'T!
• Never consent to anything without the advice of your attorney.  This includes giving the police permission to search, draw blood or discuss the case with you.
• Never resist arrest.  If a police officer is attempting to arrest you, be polite and cooperative. Inform the officer that you will go along peacefully.  It is also important to immediately inform the officer -or any officer that tries to question you- that you do not want to talk without an attorney.
• The only information you should provide without consulting an attorney is necessary biographical information; this includes your full legal name and address.  If the police want to fingerprint you after arrest, cooperate fully.
• Inform the officers that you wish to make a telephone call.  Get an attorney quickly, if you call family or friends have them contact an attorney.  You can reach us at 1-434-846-7111.
• Post bond as quickly as possible.  If you are advised of your right to have an attorney, your response should be, "I plan to hire my own counsel”.  At the advisement, do not try to talk to the judge about your case.
• Finally, meet with your attorney as soon as possible.  When you meet with me, be completely honest with your version of events.  Tell us about any past traffic record or witnesses that might help or hurt your case.  Remember that you are the most important part of your defense team.