Virginia DUI defending needs to cover all essential avenues, says Fairfax DUI lawyer

Virginia DUI defending calls for a comprehensively skilled defense. As a Fairfax DWI lawyer, I see last week’s Virginia Court of Appeals affirmance of a DUI conviction as a good place to re-address some issues that commonly face a Virginia DUI defense lawyer. The case is Schreiner v. Commonwealth of Virginia, Record No. 0917-21-3 (Oct. 4, 2022) (unpublished). Schreiner is an appeal from a non-jury DUI conviction under Virginia Code § 18.2-266 for nothing more serious than a 0.06 blood alcohol concentration measurement, which is so low that the Virginia law states that a BAC of 0.06 and 0.07 amounts to no presumption of being DUI or not. Virginia caselaw says to look at BAC at the time of driving versus testing (except to look at BAC at the time of testing where the charging document alleges a BAC of at least 0.15), which means that — aside from attacks that can be made on the accuracy and admissibility of breath testing and the BAC results — Schreiner’s BAC may have been below 0.06 at the time of driving. Virginia law presumes not being intoxicated for BAC’s under 0.06.

Beware having purportedly erratic driving lead to Virginia DUI defending

Schreiner had the misfortune of being followed by a witness who called the police to report such erratic driving by Schreiner as swerving back and forth between two lanes, nearly rear-ending the reporting witness more than once. driving onto the curb, and swerving into oncoming traffic. Supreme Court caselaw is bad enough with the extent to which police are permitted to stop a car based on an anonymous 911 call of driving that almost causes a collision, let alone, as here, where the witness is available to identify themselves to police. Police arrived around 2:30 p.m. to find Schreiner in a smoothie restaurant drive-through line. Schreiner’s “eyes were extremely glassy, bloodshot, and looked puffy as if she had been crying.” She first said she  consumed alcohol around 8:00 p.m. the evening before, but later changed that to 9:30 p.m.  It appears that police did not testify to any odor of alcohol on her breath. The police officer drew a foul by asking Schreiner to move her vehicle out of the restaurant drive-thru line, and strike the curb twice. If he was suspicious that Schreiner was in violation of Virginia’s DUI law, he could have driven her vehicle out of the drive-thru lane himself. His very request for Schreiner to continue driving supports an argument that the police officer did not have sufficient suspicion that she was intoxicated. For Virginia DUI defending, I am ready to call out such fouls that police cause with my defendant.

Fight prosecutor efforts to have the police officer in a Virginia DUI case to testify as an expert in field sobriety testing

Schreiner’s prosecutor successfully moved for Officer Bauserman to be qualified as an expert witness in the administration of field sobriety tests, “Over appellant’s objection, the trial court qualified Officer Bauserman as an expert and allowed him to testify as to causation” as to the extent to which alcohol affected Schreiner’s field testing performance.” Schreiner. “The sole purpose of permitting expert testimony is to assist the trier of fact to understand the evidence presented or to determine a fact in issue… Generally, a witness is qualified to testify as an expert when the witness possesses sufficient knowledge, skill, or experience to make the witness competent to testify as an expert on the subject matter at issue. See Sami, 260 Va. at 284, 535 S.E.2d at 174; Noll v. Rahal, 219 Va. 795, 800, 250 S.E.2d 741, 744 (1979)… ‘The admission of expert testimony is committed to the sound discretion of the trial judge, and we will [reject] a trial court’s decision only where that court has abused its discretion.’ Brown v. Corbin, 244 Va. 528, 531, 423 S.E.2d 176, 178 (1992)…” Commonwealth of Virginia v. Allen, 269 Va. 262, 274 (2005) (emphasis added). Here, the police officer’s 80 hours of field sobriety training by itself not qualify the officer to state conclusions about the connection between field sobriety testing and intoxication or level thereof. Instead, for Virginia DUI defending, the defense lawyer must emphasize that police testimony about field sobriety testing should not extend beyond their observations, and not include their conclusions. U.S. v. Horn, 185 F. Supp. 2d 530  (D.Md. 2002).

Should Virginia DWI suspects agree to roadside preliminary breath testing?

Schreiner submitted to a roadside preliminary breath test (PBT). Schreiner does not say what the result was. Nonetheless, for Virginia DUI defending, it is very important that the defendant know the importance of declining PBT testing, the dangers of agreeing to such testing, and the points of attack that can be made against PBT testing. Do not let police try to dissuade you from fully defending against your Virginia DWI prosecution, including obtaining a qualified Virginia criminal lawyer to defend you. The only people you serve by not fully defending yourself in Virginia criminal court are the police and prosecutor, who will have an easier time obtaining a conviction against you if you appear for your trial date without a sufficiently qualified lawyer.

Fairfax DUI lawyer Jonathan Katz focuses 99% of his law practice on criminal and DUI defense. Jon is among the small percentage of Virginia criminal defense lawyers who are members of the National College of DUI Defense. He is also among the small number of Virginia DUI defenders who has been trained in administering NHTSA-standardized field sobriety tests to people who have consumed alcohol, by one of the nation’s top SFST trainers to police. Call 703-383-1100 for your free in-person consultation with Jon Katz about your court-pending case.