SCVA DUI opinions are infrequent, making each worthy of attention, says Fairfax criminal lawyer

SCVA DUI decisions are infrequent, which makes them all the more worthy of attention. As a Fairfax criminal lawyer, I see that the Poulson v. Commonwealth of Virginia opinion reinforces limits on entitlement to Miranda warnings and does without an arrest warrant requirement when police already are on private property. Poulson, ___ Va. ___ (April 10, 2025). Poulson provides a stark example of how talking with police can spell the difference between losing and winning against a Virginia prosecution for an alleged felony, misdemeanor or DUI / driving under the influence of alcohol and/or drugs offense. Poulson at the time was a police officer, which probably threatened his job if convicted, but also possibly risked his job security had he asserted his right to remain silent with law enforcement. In the end, Poulson entered a conditional guilty plea to DWI, with the option to appeal concerning the foregoing Miranda and warrantless arrest issues.

Beware what you as a suspect tell police

With the SCVA Poulson case, he was indicted for alleged driving while intoxicated under Virginia Code § 18.2-266, hit and run under Virginia Code § 46.2-894, obstruction of justice under Virginia Code § 18.2-460(A), and illegal dumping on a highway under Code § 33.2-802. That sounds like overcharging in the light of the allegations against him, for the hit and run and obstruction counts. Nonetheless, a civilian reported a vehicle stuck in a ditch, with the driver throwing beverage containers outside the vehicle (for the illegal dumping charge). Perhaps realizing someone had called law enforcement officers (LEO), Paulson called police, saying all was fine and that help was not needed. Police arrived at the scene, not seeing Paulson’s described vehicle, but finding two nearby beer bottles and a beer can. They went to Paulson’s home, Paulson voluntarily emerged without even a knock on his door, and Paulson was obviously intoxicated. He denied consuming any alcohol before going into the ditch, but admitted that post-incident, at home drinking three or four beers and four or five shots of alcohol, for a total of seven to nine drinks. I stand ready to argue for Virginia DUI defense that post-driving alcohol consumption does not violate the DWI law, but Poulson’s claim of that much post-driving alcohol consumption does not jibe with the timeline of his calling the police and police arriving at his home soon after.

What do I do if Virginia police overcharge me with multiple counts, as in the SCVA Poulson casenere?

Why was Poulson charged with hit and run? Apparently because Virginia hit and run law is worded as even applying to a one-car accident with no damage to anyone else’s property. Why was Poulson accused of obstruction of justice? Perhaps because of his apparent prevarication when saying all his drinking was post-incident, but that does not seem to jibe with the obstruction of justice statute. What is clear from the SCVA Poulson opinion is that you should obtain the best possible lawyer for your defense when a Fairfax criminal defendant or the accused anywhere else in Virginia.

Do police have to advise me of my Miranda and Fifth / Sixth Amendment right to remain silent before I may assert that right?

As a Virginia criminal suspect, you may proactively assert and exercise your right to remain silent with LEO, and do not need to wait for police to issue such warnings. As a police officer, Poulson would have known that, but the SCVA Poulson case shows his effective waiver of his right to remain silent and to decline field sobriety testing (FSTs or SFSTs). When you assert your right to remain silent with police, the clearer you make that election the better, including: “I want a lawyer” and “I am not answering questions.”

Fairfax criminal lawyer Jonathan Katz pursues your best defense against Virginia felony, misdemeanor and DUI prosecutions, regardless of how even or not is the courthouse playing field. For your free strictly confidential in-person initial consultation with Jon Katz, call 703-383-1100, Info@KatzJustice.com, or (text) 571-506-7268.