VA DWI law is unforgiving and calls for superb advocacy, says Fairfax DUI lawyer

VA DWI law is not very defense favorable, and still I repeatedly obtain great results for my clients prosecuted for allegedly driving under the influence of alcohol or drugs in violation of Virginia Code § 18.2-266  As a Fairfax DUI lawyer, I tell you this because Virginia DWI prosecutions call for overcovering risk by being fully prepared for each stage of your defense. This overcovering of risk involves your obtaining the best possible lawyer for you and your working closely with that lawyer. Only recently, the Virginia Court of Appeals underlined how unforgiving is the commonwealth’s DWI law, in affirming such a conviction where the defendant declined (wisely) engaging in field sobriety testing (FSTs / SFSTs) and the pre-arrest preliminary breath testing (PBT). The defendant also declined to submit to post-arrest blood alcohol concentration (BAC) testing on the Intox EC/IR II breathalyzer machine. (I cannot comment online about the decision to submit to post-arrest BAC testing or not.) Hayes v. Commonwealth of Virgnia, Record No. 1776-22-3 (unpublished).

If I refused field sobriety and breathalyzer testing, will VA DWI law be on my side?

When you refuse field sobriety testing and breathalyzer testing, you can reduce your risks of being convicted under the VA DWI law by providing less data for the police and prosecutor to use against you in court. However, as a Fairfax DUI lawyer I know that does not automatically bring you out of the woods. Consider Erin Hayes’s plight. A civilian saw Hayes weaving in and out of her lane in her vehicle, and then witnessed Hayes colliding into parked cars. “Hayes was slumped over in the driver’s seat with her head down.” Police arrived at Hayes’s nearby home and “noticed that she was unsteady on her feet and ‘propping herself up against the side of the porch.’ Her eyes were bloodshot and glassy, an odor of alcohol emanated from her person, and she slurred her words. Hayes admitted to drinking earlier in the day at a friend’s house but consistently denied drinking anything since returning home.” Hayes. Little did Hayes realize that by denying any post-collision drinking, she helped rule out the defense that post-driving alcohol consumption is cannot be used against a person as evidence of committing DWI.

What is the definition of DWI if I refused BAC testing?

As a Fairfax DUI lawyer, I know that the VA DWI law definition is watered down. Hayes confirms that watered-down definition: “Under Code § 18.2-266, ‘[i]t shall be unlawful for any person to drive or operate any motor vehicle . . . while such person is under the influence of alcohol[.]’ That degree of intoxication 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.’ In determining whether a defendant was under the influence, a factfinder considers ‘all of the evidence of h[er] condition at the time of the alleged offense.’ This Court has found that ‘[a] defendant’s admission that [s]he consumed several alcoholic beverages, together with the testimony of the arresting officer regarding the defendant’s appearance and lack of coordination, is sufficient to support a conviction for driving under the influence of alcohol.'” Hayes (citations omitted).

Is Virginia’s watered-down driving under the influence definition a call to action for me to fight all the more against such a prosecution?

The answer to the foregoing question about VA DWI law is a resounding “yes”. The law of the Commonwealth of Virginia and the Supreme Court confirms that all DWI and other criminal defendants are presumed innocent unless and until proven guilty beyond a reasonable doubt. Make sure that your Fairfax or Virginia DUI lawyer embraces that truism and milks it for all it is worth.

Fairfax DUI lawyer Jonathan Katz knows the ins and outs of delivering you a great DWI defense. For your free initial in-person confidential conversation with Jon Katz about your court-pending case, call 703-383-1100.