Avoiding voluntary police testing can spell the difference between acquittal and conviction, says Fairfax criminal lawyer

Avoiding voluntary police testing can spell the difference between acquittal and conviction. As a Fairfax criminal lawyer, I know that when, for instance, police suspect a person of violating Virginia Code § 18.2-266  (driving under the influence (DUI) of alcohol and/or drugs or driving while impaired (DWI)), law enforcement officers (LEO) will ask (and sometimes command, which is not permissible, because such testing has to be voluntary) the suspect to engage in field sobriety testing and preliminary breath testing. Responding to such requests should be the same as when your basketball opponent promises to be your best friend if you hand over the ball, which is a resounding “No”. Criminal suspects can get nervous and want to please police by submitting to questioning (voluntary) and voluntary testing, but all you usually are doing in the process is digging yourself into a deeper hole. 

Will my avoiding police testing help get me convicted?

Refusing to speak with police cannot be used against you in a court of law, pursuant to the federal Constitution’s Fifth and Sixth Amendments. Avoiding field testing is permitted to be considered in the totality of the circumstances of whether LEO had probable cause to arrest you for violating the Virginia DUI law, but is not permitted to be considered consciousness of guilt. Even if refusal to engage in preliminary breath testing were permitted to be considered in whether probable cause existed to arrest, because the PBT statute requires telling the accused they have the right to refuse the test, such refusal should not be considered adversely at all. Virginia law bars declining post-arrest blood alcohol concentration (BAC) testing (via breath or blood testing) as being considered as consciousness of guilt.

How a Fairfax criminal lawyer pulled an improper driving infraction out of the hat of a joint Virginia DUI and BAC testing refusal charge

As a Fairfax criminal lawyer, recently I obtained an improper driving infraction (not a crime) with a $1000 fine (by doubling the $500 maximum fine under the highway safety corridor statute), converted from a joint criminal Virginia DUI charge and BAC refusal civil offense charge (the latter of which carries a year of no driving, and waiting thirty days to engage in very limited restricted driving with the ignition interlock device (IID)). I underlined to the prosecutor that with my client’s avoiding all police testing and breath testing (and this being Fairfax, no blood testing was administered in the absence of a blood draw technician at the jail at the time, where Fairfax police do not tend to seek hospital blood draws in response to breath testing refusals), a DUI conviction was unlikely. (However, a refusal conviction was more possible.) After I also showed the assistant commonwealth’s attorney / prosecutor documentation of my client’s self improvement steps, the prosecutor offered a reckless driving disposition. My assistant was with me at the time, who agreed how much an improper driving infraction disposition would so much more help my client’s ongoing self rehabilitation. The prosecutor agreed, by amending DUI to improper driving, and dismissing the refusal charge. This was a great day in court.

What should I do if charged with a crime in Fairfax County, Virginia?

If you are charged with an alleged crime in Fairfax or anywhere else — whether after avoiding police testing or not — do not delay in obtaining the best possible lawyer for you. As a Fairfax criminal lawyer, I have successfully defended thousands of people accused of criminal offenses, and have successfully taken hundreds of cases to trial. I am totally focused on your successful defense, your cause, your ideas and concerns. By the end of your initial strictly confidential consultation with attorney Jonathan Katz, you will feel more confident and informed about your defenses. To schedule your meeting with Fairfax criminal lawyer Jon Katz, call 703-383-1100, email Info@KatzJustice.com or text us at 571-406-7268.