Impaired driving requires real consideration whether proof beyond a reasonable doubt has been satisfied, says Fairfax criminal lawyer

Impaired driving can be a damning accusation (consider the military members kicked out for a mere driving under the influence of alcohol or drugs prosecution under Virginia Code § 18.2-266) and even more damning if a conviction results. As a Fairfax criminal lawyer, I urge people to watch out about treating their Virginia DUI prosecution as “just a first DWI prosecution” or hoping for a second DWI prosecution to be reduced to a non-jailable result. Furthermore, some commonwealth’s attorney’s offices and prosecutors are harsher with DWI prosecutions than others. A full frontal assault is needed to defend against such charges.

The model Virginia DUI jury instruction is insufficient for not mentioning impaired, and needs replacing or else supplementing with emphasizing the impairment element

Where no blood alcohol concentration (BAC) test is taken, the key language of the Virginia driving under the influence code is: “It shall be unlawful for any person to drive or operate any motor vehicle, engine or train…  (ii) while such person is under the influence of alcohol, (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely…” Virginia Code § 18.2-266. When considering the following caselaw, the following model Virginia jury instruction on the definition of being under the influence is entirely inadequate for not addressing the word impaired: “A person is under the influence of alcohol if he has drunk enough alcoholic beverages to observably affect his manner, disposition, speech, muscular movement, general appearance or behavior.” Virginia model criminal jury instruction 21.200. The foregoing is insufficient, because the prosecutor must prove impairment beyond a reasonable doubt: “Code § 18.2–266 makes it unlawful to ‘drive or operate’ a motor vehicle while under the influence of alcohol to a degree that impairs one’s ability to drive safely.” Rix v. Commonwealth of Virginia, 282 Va. 1 (2011).

Furthermore: “[T]he thrust of the statutory scheme is to prohibit drinking and driving where the driver’s ability is impaired to operate safely a motor vehicle. That degree of intoxication, or being under the influence of alcohol,’ is established when any person has consumed enough alcoholic beverages to so affect his manner, disposition, speech, muscular movement, general appearance or behavior, as to be apparent to observation.'” Hogle v. Commonwealth of Virginia, 75 Va.App. 743, 754 (2022) (citations omitted). Yes, Hogle circles right back to the foregoing model jury instruction’s definition of being under the influence, but still includes a focus on the word impairment, and Rix includes a focus on impairment, as well It is important to emphasize this impairment element, because the Virginia DUI code only uses the word “impairs” in relation to drugs and a combination of drugs and alcohol.

Underline that the Latham Virginia DUI affirmance is unpublished and, therefore, non-binding on trial courts

Unfortunately, the Virginia Court of Appeals allows such thin evidence as the following to lead to a DUI conviction in the absence of breath testing and field testing (FSTs / SFTSs): Police stopped Breon Latham’s car for driving around seven miles an hour over the speed limit and not fully stopping at a stop sign. Latham v. Commonwealth of Virginia, Record No. 1088-23-1 (Va. App., Nov. 26, 2024) (unpublished). Latham “stumbled as he approached Officer Merchant’s vehicle… Officer Merchant detected an odor of alcohol coming from Latham’s person and breath, noticed that Latham’s speech was slurred, and saw that Latham’s eyes were glassy, watery, and bloodshot.” “On cross-examination, Officer Merchant acknowledged that Latham maintained his lane of travel and did not rapidly accelerate or decelerate except for the excessive braking that occurred on Wingfield Avenue. Furthermore, except for Latham’s stumbling upon exiting his vehicle, he maintained his balance during the 20-minute period of observation and was relatively cooperative. Officer Merchant also admitted that Latham accurately articulated the date and the time as well as where he was and where he was going.” Latham. Virginia criminal defense lawyers need to be ready for at least some judges to find Latham reliable, despite the more convincing opinion of the dissent. Important in response is (1) Latham is not binding, because unpublished; (2) Latham permits but does not mandate a Virginia DUI conviction under the foregoing circumstances; and (3) Latham does include an emphasis on the impaired element of driving under the influence of alcohol, and distinguishes impaired driving from merely influenced driving.

Should I expect to avoid a Virginia DUI conviction by the absence of BAC testing and FST testing?

Many of my Virginia DUI clients wisely refuse field sobriety testing. For those who refuse BAC testing, they will only avoid a BAC test if the police do not then successfully obtain a search warrant to draw their blood for a BAC test. Based on the foregoing discussion about influenced and impaired driving, the absence of BAC testing and FST testing (and even coupled with a denial of consuming alcohol, as Latham denied), does not guarantee avoiding a DWI conviction. Consequently, as with all criminal prosecutions, overcover risk as a defendant by obtaining the best possible Virginia criminal lawyer for you.

Virginia criminal lawyer Jonathan Katz has been described as having a thick skin and an open heart, which serves well his Virginia felony, misdemeanor and DUI clients. Jon Katz will meet with you for free — usually within a business day of your call — through an in-person confidential discussion about your court-pending prosecution, at 703-383-1100, jon@BeatTheProsecution.com and (text) 571-406-7268.