Rehearse for a potential Virginia DWI police investigation of you, says Fairfax DUI lawyer

Rehearse for a potential Virginia DWI police investigation if you in the future are going to drive a car or other automobile after consuming alcohol, wine, beer or impairing drugs. As a Fairfax DUI  lawyer, I even see some of my repeat driving under the influence clients — prosecuted under Virginia Code § 18.2-266  — deviate from my top ten list for dealing with police, either because they figured they would not have another law enforcement officer (LEO) encounter so did not bother reading my top ten list, or else read and did not apply that list. In the heat of the unsettling moment with the police — added by poorer judgment if the suspect indeed is under the influence of alcohol or drugs — many suspects will submit to police questioning that the Fifth Amendment protects them against, and will engage in field testing (refusal to do so can be considered at trial) and pre-arrest breath testing that they have the right to refuse (versus post arrest blood alcohol content (BAC) testing)). When you know more about what to expect in a Virginia DWI investigation, you are more likely assert those rights. Consequently, here is a general overview of some common things to expect if a police office suspects you of violating the Virginia DWI law.

Your need to rehearse for a potential Virginia DUI investigation is reduced if you do not drive after consuming alcohol or drugs

Read and rehearse the above sentence again. Even if you have not consumed any beer, wine, alcohol or impairing drugs within 24 hours of a police traffic stop, you still risk a Virginia DWI investigation. For instance, many years ago after a police officer stopped me for allegedly crossing the yellow divider line, he asked me two or three times how many drinks I had, even though it had been over a year since my last sip of any beer, wine or alcohol. These questions were a fishing trip, seeing that my only possible unusual-seeming action was asking the police officer to simply to issue my ticket (I only got ticketed for that alleged moving violation and defended myself in court on it) so I could get home and go to sleep. In any event, if you are going to consume beer, wine, liquor or impairing drugs, it is a good idea before consuming them to have a plan for not driving at all thereafter, having a reliable designated driver, having your phone fully charged and setup with an Uber or Lyft app, and having the funds to pay for a taxi or other driving service or a nearby hotel, meaning to do anything to not get behind the wheel while still actually or potentially under the influence of such substances or at a registerable BAC (because the Virginia law only presumes but does not rule out being not guilty of DUI when at a BAC under 0.06).

Must I get out of a police-stopped car, and even if I am only a passenger?

The answer to the foregoing question is yes. First, many decades ago, the Supreme Court long ago police to order a driver out of his car during a stop for a mere alleged traffic moving violation / infraction. Mimms v. Pa., 434 U.S. 106 (1977). The federal Supreme Courts ultimately applied the same rule to passengers of the same vehicle, Md. v. Wilson, 519 U.S. 408 (1997), and the Virginia Court of Appeals confirms that police may prohibit passengers from leaving while the traffic investigation is still in progress. Hamlin v. Virginia, 33 Va.App. 494, 500(2000). I have seen too many Virginia DUI incident videos where my clients have refused such LEO commands and been pulled out of the car, which is at once demeaning, injurious, and possibly incriminating against the DWI suspect who undergoes such police use of force. Rehearse in your mind getting out of any vehicle without delay any time a police officer orders that. 

What do I say to the police when a Virginia DWI suspect?

As a Fairfax DUI lawyer, I know that you may wish to explain away or minimize to the police a Virginia DWI or any other criminal investigation. Yes, if you remain silent you have not advocated for not being arrested, but what can you really tell the police that will avoid an arrest in a first place? Yes, anxiety and cost of a lawyer are involved if you get arrested and prosecuted. Yes, police may feign or genuinely display irritation or anger at your waiving those rights, but that is their own disrespect for your priority to exercise those rights. However, waiving your rights to remain silent, to refuse searches, and to have a lawyer present (but that lawyer right does not attach in Virginia before any arrest and breath or blood testing procedure) with police can bring harsher consequences that asserting those rights. Asserting your right to remain silent is not inconsistent with at least identifying yourself to police, whether you do so orally (for instance if you do not have your license with you) or producing  your license. Being respectful to police is not inconsistent with asserting your foregoing rights. You can find rehearsal tips for asserting your rights at my video shown here.

When a Virginia DWI suspect, I submit to field sobriety testing  / FSTs  /SFSTs?

As a Fairfax DUI lawyer, I know that refusal to submit to field testing (for instance the horizontal gaze nystagmus test (HGN), the walk and turn test (WAT) and one leg stand (OLS), may be considered against you by the judge and jury, but may not be considered as consciousness of guilt. Jones v. Commonwealth of Virginia, 279 Va. 52, 58 (2010). At the same time, a large percentage of people will not perform well on the OLS and WAT tests even when stone sober, particularly in the nerve-rackingly distracting setting of being investigated by an armed police officer, in the midst of strangers driving and walking by seeing you as a Virginia DWI suspect. Adding to that, you will probably not know if the police officer will stop there with requested field testing, and might add such non-standardized / non-SFST tests as counting backwards, reciting part of the alphabet, doing a finger to nose test, and doing a finger dexterity test, let alone asking you to submit to preliminary breath testing (PBT), which is addressed below. Rehearse how to assert your right to refuse FSTs, which can be as simple as saying “I decline.”

Must I provide police a breath sample even before I am arrested? What about after I am arrested?

Police regularly ask Virginia DUI suspects to submit to preliminary breath testing (PBT) before any arrest has ever taken place. I have won Virginia DWI trials only by having been able to exclude the PBT results. If you refuse such testing, your lawyer will not in the first place have to endeavor to keep such results out of evidence. Once arrested for violating the Virginia DWI law, the law of the commonwealth obligates you to submit to breath or blood alcohol testing, and the type of test is the choice of the law enforcement officer. Refusal to submit to such testing is a separate offense unless the judge or jury does not find that such refusal was unreasonable. Rehearse knowing the difference between the PBT (which you have the right to refuse) and  post-arrest breath or blood testing (for which a refusal can lead to a separate refusal prosecution.)

What if the police do not let me, as a Virginia DUI suspect, go to the bathroom, drink some water, contact my family or call a lawyer? Rehearse for this possibility

Virginia police know that the more out of sorts that you feel in their presence, the more you might give up your above-detailed rights in dealing with the police. Even if your bladder is near bursting and the police refuse your request to go to the bathroom, do not get verbally combative with them, which can be used against you as a sign of impairment by beer, wine, alcohol, medication or other drugs. Do not expect the police to let you drink any water or other fluids before submitting to BAC testing, out of their concern that any fluid consumption can lower your blood alcohol content. As much as your family may freak out by your long-delayed arrival home from an arrest, the police may or may not be willing to let your family know of your whereabouts before you arrive at the police station, but then beware about giving them the passcode to your cellphone to make that call or to find that phone number. Rehearse going to the bathroom and drinking water before going for a ride, and letting your family know that your non-timely arrival home may simply mean that you got detained by police, and not that you had a serious accident or otherwise got injured.

Qualified Fairfax DUI lawyers and other Northern Virginia DWI lawyers abound – Let your attorney do your heavy lifting for you

You want to be released from detention after being arrested. Your chances of that increase if your Virginia DUI prosecution is a first one without such aggravating factors as a very high BAC reading, a serious car accident, excessive alleged speed, or allegedly verbally or physically combative actions with LEO. You can expect to see a Virginia court magistrate within a few hours of your arrest. If the magistrate releases you on an unsecured bond, you need not pay anything to be released pending your next court date. If the magistrate sets a secured bond, then arrange with your friends and/or family to pay that bond in cash or through a reputable bail bond company. If the magistrate sets no bond or a bail amount that you cannot afford, you can arrange for a lawyer to set a bond hearing and to argue for your release, if the judge does not order your release on your arraignment date. Let your Virginia DUI lawyer doe most of the work for your defense, and for your work for your defense to be in tandem with your lawyer. Learn and rehearse knowing what to say to a magistrate and judge if appearing before them without a lawyer.

Fairfax DUI lawyer Jonathan Katz focuses a substantial percentage of his law work on successfully defending those charged with violating the Virginia law criminalizing driving under the influence of beer, wine, liquor and impairing drugs under Virginia Code § 18.2-266. Call 703-383-1100 for your free initial in-person strictly confidential consultation with Jon Katz about your court-pending Virginia DUI case.