Attack Virginia DUI police stops, or suffer the consequences, says Fairfax criminal lawyer

Attack (verbally, in court, through your attorney) Virginia DUI police stops, or suffer the consequences. As a Fairfax criminal lawyer, i share with you a very low threshold to permit police vehicle stops for suspicion of DUI. McCumber v. Commonwealth of Virginia, ___ Va. App. ___ (June 23, 2026). Unless and until the full en banc Virginia Court of Appeals reverses this 2-1 McCumber decision, or unless the Virginia Supreme Court reverses McCumber, the low threshold available for Virginia judges to permit a DWI-suspected police car stop will permit nothing more than a DUI-experienced law enforcment officer (LEO) stating he had reasonable suspicion of DWI, at least two abrupt weaves even if within the suspect’s lane, driving at least five miles per hour below the speed limit, and having one’s tail lights out, even though the Virginia Code provides that no “law-enforcement officer shall stop a motor vehicle for a violation of this section,” whereby that section includes tail lights under Virginia Code § 46.2-1013. Virginia Code § 46.2-1030(F). 

Should I throw in the towel against challenging my police traffic stop on thin evidence, or should I attack the stop?

Never give up and never give in for your attack against your Virginia prosecution. McCumber can be flipped around to your favor — to a point — in challenging the LEO’s stop of you on suspicion of DWI, including: McCumber confirms that each police stop requires considering the totality of the circumstances about whether the LEO had reasonable articulable suspicion to effectuate the stop, which is required by appellate caselaw. D.C. v. R.W., 146 S.Ct. 1069, 1070  (2026). McCumber acknowledges that moderate brief weaving within one’s lane is not sufficient by itself to stop a vehicle. McCumber acknowledges that a police officer may not stop a vehicle if the only reason is for no tail lights. Nor does McCumber say that driving five miles an hour below the speed limit by itself is enough for effectuating a traffic stop, where the totality of the circumstances must be considered for any police stop. D.C. v. R.W., supra. 

Challenge police claims of stopping a vehicle based on alleged knowledge, training and experience

Make sure that your Virginia criminal lawyer will effectively attack police claims of stopping your vehicle based on alleged knowledge, training and experience, which is a repeated police claim. In that regard, McCumber says: “The trial court was also entitled to credit [police officer] Young’s training and experience in assessing whether McCumber’s driving behavior established reasonable suspicion. See Neal, 27 Va. App. at 239 n.3 (citing ‘uncontested evidence of the officer’s experience with intoxicated drivers’). Young had conducted ‘ a couple hundred’ traffic stops over his 11-year tenure as a law-enforcement officer. When asked what crime he ‘reasonably suspect[ed] was being
committed’ based on the conduct he observed, Young answered, ‘Driving under the influence of drugs or alcohol.’   The trial court could properly rely on Young’s experience to recognize that McCumber’s behavior established reasonable suspicion that McCumber was driving under the influence of drugs or alcohol.” McCumber. Consequently, the foregoing quoted language is a partial road map for your lawyer to challenge that your police stop was actually based on a hunch (which the McCumber dissent correctly cites to the appellate case law barring police hunch stops) and not based on reasonable articulable suspicion. Your police officer’s reliance on his experience opens the door to multiple chapters of questioning about the police officer’s knowledge, training and experience, including to show the extent to which the police officer’s claims are not much more (if at all) than those of a layperson.

If your Virginia Circuit Court trial judge does not state a reason for rejecting your evidence suppression argument, ask the judge to state the reason

McCumber’s trial judge did not state his reason for rejecting his motion to suppress McCumber’s LEO traffic stop. That left McCumber not better knowing the trial judge’s assessment of the evidence relevant thereto. Talk with your Virginia criminal lawyer about the extent to which s/he will attack the prosecution to sufficiently protect your appellate record when your case is in Circuit Court. (Virginia District Court convictions are appealed for a de novo new trial in Circuit Court, which therefore does not involve an appellate record to preserve, while all trials also need strategic objections to keep out evidence that can help make or break your ability to win your trial.

Fairfax criminal lawyer Jonathan Katz relentlessly pursues your best defense against Virginia DUI, felony and misdemeanor prosecutions. For a great start to your Virginia criminal defense, schedule your free initial in-person confidential consultation with Jon Katz about your court-pending case, at  703-383-1100, Info@KatzJustice.com and (text) 571-406-7268.