VA DWI comes to review in high state court says Fairfax DUI lawyer

VA DWI will be reviewed by the state Supreme Court says Fairfax DUI lawyer

VA DWI law is not pretty even though acquittals can be achieved. As a Fairfax DUI lawyer, I know that 0.08 is a ridiculously low per se threshold for mandating a conviction. I also know that driving under the influence without a blood alcohol reading has a watered down definition in Virginia DUI appellate caselaw of having “drunk enough alcoholic beverages to so affect his manner, disposition, speech, muscular movement, general appearance or behavior, as to be apparent to observation.”  Of course, if one gets convicted for DUI in the commonwealth, the sentencing and collateral damage can be very serious. Va. Code §§ 182-266 and 18.2-270.

Recently, the commonwealth’s Supreme Court accepted for appellate review the November 2019 unpublished Goldberg. v. Virginia DUI Court of Appeals case on the following two issues: (1) Whether the trial court’s admission of horizontal gaze nystagmus (“HGN”) evidence was harmless error; (2) whether evidence of HGN testing is supported by sufficient foundational evidence of reliability; and (3) whether HGN testimony is unfairly prejudicial in violation of a VA DWI defendant’s Constitutional rights and the Virginia Rules of Evidence.

What is the significance of horizontal gaze nystagmus testimony in a VA DWI trial?

As a Fairfax DUI lawyer, I know that to date, a Westlaw legal research search of “nystagmus” finds no published nor unreported VA DWI appellate opinions that address the reliability nor admissibility of HGN tests, other than Henshaw v. Virginia, 3 Va.App. 213 (1986), which only addresses HGN in dicta, saying that the HGN test “is thought [according to a treatise writer] to be a valid measure of blood alcohol content, but is subject to criticism on the basis that its administration in the field may yield imprecise results and may be clouded by physiological processes other than intoxication.” Consequently, at least until the Virginia Supreme Court rules hears and rules on this unpublished Goldberg Court of Appeals case, I can continue to argue that HGN should not be of value against a DWI defendant in both the motions and trial stages.

Even if the Virginia high court rules in favor at all for allowing HGN testimony at trial, the Court should decide no further against VA DWI defendants than that the presence of nystagmus means nothing more at trial for the prosecution than the presence of alcohol in the suspect’s bloodstream. When horizontal nystagmus testimony is limited in that fashion in court, such testimony becomes rather meaningless, because police in DUI alcohol cases usually testify to smelling alcohol on the driver’s breath anyway.

Is HGN testimony harmless error under Virginia caselaw?

The Virginia Court of Appeals in Goldberg avoids addressing the admissibility and reliability of HGN evidence in VA DWI cases, by instead saying that any error in letting Goldberg’s jury hear such evidence was harmless error: on the basis of the following evidence:

“Appellant was originally seen driving along the shoulder of the road in lieu of a legal lane of traffic. After merging into a legal lane of traffic, appellant drifted repeatedly in and out of the oncoming lane of traffic. He then drove in the middle of two lanes before being pulled over by Officer Aicher. During the ensuing interaction [investigating for violation of the VA DWI laws], there was a strong odor of alcohol emanating from appellant, his eyes were bloodshot, he occasionally slurred words, and he was unable to walk or stand without swaying. Appellant originally reported having one beer earlier that evening, but later admitting he had ‘one tall boy Mickey’s Malt Liquor’ and a beer, with his last drink just thirty minutes before being stopped. Appellant was able to recite the alphabet from D to S only at a slow speed and with some difficulty. After his arrest, he told Officer Aicher that this charge would be his ‘third strike’ because of two prior DUIs and that he guessed ‘the higher alcohol content of the malt liquor got [him].’ A breathalyzer test conducted over an hour and a half after the traffic stop registered a blood alcohol content that was still over the legal limit.”

Must suspects agree to perform field sobriety tests in Virginia DUI investigations?

Nobody is required to submit to field sobriety testing in VA DWI investigations, as I have said many times before. Controlling Virginia Court of Appeals caselaw says that such testing is voluntary (as is pre-arrest handheld preliminary breath testing) whereas post-DUI arrest blood alcohol testing is mandatory, pursuant to the police officer’s choice of breath testing machine use or blood draw. The only downside of refusing field sobriety testing (“FST”) is that the judge and jury at trial are permitted to know about the refusal, but a good criminal defense lawyer can minimize the significance of simply not engaging in FSTs that are not mandatory in the first place.

Fairfax DUI lawyer Jonathan L. Katz pursues your best defense against felony, misdemeanor, and DWI prosecutions. Call 703-383-1100 for a free in-person confidential consultation with Jon Katz about your court-pending DWI or criminal case.