Virginia criminalizes drunk driving, but the drinking must precede the driving

Virginia criminalizes drunk driving. As a Fairfax DUI lawyer, I repeatedly see police and prosecutors of the commonwealth bend over backwards to prove that the defendant was driving and that the drinking behavior preceded driving and attempting to drive. What does this mean for you as a Virginia DWI defendant or as a potential future arrestee accused of driving under the influence of alcohol or drugs in contravention of Virginia Code § 18.2-266? It means that when you admit to having been the driver at the time of a crash, you have helped the prosecutor satisfy that element of the crime of driving under the influence. When you say you last consumed beer, wine or alcohol all before your driving activity ended, you have helped the prosecutor satisfy the Virginia caselaw that puts the burden on the prosecution to prove that the alcohol was consumed before — not after — consuming liquor. An important twist that may be beneficial to you is that Virginia caselaw does not establish that all your drinking was during and before driving, even if you deny having consumed any alcohol on the incident date. However, if you tell the law enforcement officer (LEO) that your last drink was before your collision or before you otherwise finished driving, do not bank that your Virginia trial judge will say that the prosecution has the burden to disprove that any of your drinking took place after driving or attempting to drive. Nonetheless, the prosecutor’s burden — established by Virginia caselaw — to prove that your drinking preceded your finishing driving or before a collision, cuts against any prosecutorial claim of significance of police not finding alcohol beverage containers in your car or on you, a prosecutorial claim that no sources for purchasing alcohol are in the vicinity of your driving or any crash, nor a prosecutorial claim of an affirmative burden by you as a Virginia DWI defendant to present evidence that your drinking was subsequent to any driving. Of course, the circumstance can exist where your drinking started before your driving ended, but continued thereafter.

Make sure your Virginia DUI lawyer is cognizant of a possible defense of drinking after driving, and that your attorney is ready to inform your trial judge of the relevant caselaw

When you meet with your potential Virginia DUI lawyer, do not automatically assume that s/he will spot a possible argument that your drinking could have happened after you finished driving or attempting to drive. If such an argument exists, raise that argument with your potential attorney, and ask that lawyer’s view of the issue and how the attorney will approach the matter. The following three Virginia appellate court cases (where I thank a colleague for first telling me about two of these cases) are essential for your attorney to have at the ready for raising such an issue: Bland v. Virginia, 190 Va. 42, 55 S.E.2d 289 (1940), Fowlkes v. Commonwealth, 194 Va. 676, 74 S.E.2d 683 (1953), and Coffey v. Commonwealth of Virginia, 202 Va. 185, 116 S.E.2d 257 (1960). All three of the foregoing cases put the burden on the prosecutor to prove that the drinking activity in a Virginia DWI case was consumed before driving or attempted driving finished, rather than requiring the defense to present such evidence to the contrary. The key defense-friendly language from Bland (where the defendant did not testify at trial) is: “We think the position of the defendant that the testimony does not exclude as a reasonable hypothesis, that he drank intoxicating liquors between the time he left the car and the time he was picked up by Officer Puller is well taken. It is not inconsistent with the testimony of the witnesses Carver and Knight that, in the meantime, the defendant may have either drunk whiskey from a bottle already in his possession, or beer in a near by restaurant. It does not appear whether the defendant sought out Officer Puller and reported the accident to him, or whether he was picked up by the officer on account of apparent drunkenness. Nor does the evidence show how far he was from the place of the accident when picked up, or why the officer brought him there.” Bland at 46. The key defense-friendly language in Fowlkes is: “The Commonwealth argues that since the defendant told the trooper he had had a couple of beers earlier in the afternoon and did not claim to have had a drink after the accident, it must follow that his intoxication came prior to the accident. The answer is that it is presumption, not proof, that he took the beers before the accident, and he did not have to claim that he drank intoxicants after the accident. The burden was on the Commonwealth to prove that the defendant was under the influence of intoxicants when the accident happened, not on the defendant to prove that he was not. The Commonwealth’s evidence must exclude every reasonable hypothesis of innocence. Until that is done the defendant is not required to explain or to offer evidence of his innocence.” Fowlkes at 678-79. Essentially, Virginia criminalizes DWI, and you need to be ready to fight back, and to do so well.  

Does the prosecution lose the burden to prove my drinking was pre-driving when I deny having consumed any beer, wine or alcohol on the incident date?

Coffey is of particular interest where Virginia criminalizes DUI, in that the Virginia Supreme Court reversed Coffey’s trial conviction, where Coffey told LEO that he did not consume any alcohol on and before the incident date, which counters his son’s testimony to have provided Coffey whiskey to drink only after a collision on the incident date. Coffey says, for instance: “It is, of course, a truism of the criminal law that evidence is not sufficient to support a conviction if it engenders only a suspicion or even a probability of guilt. Conviction cannot rest upon conjecture. The evidence must be such that it excludes every reasonable hypothesis of innocence. The giving by the accused of an unclear or unreasonable or false explanation of his conduct or account of his doings are matters for the jury to consider, but they do not shift from the Commonwealth the ultimate burden of proving by the facts or the circumstances, or both, that beyond all reasonable doubt the defendant committed the crime charged against him.” Coffey (citations omitted). 

Virginia criminalizes a watered down version of driving under the influence

Unfortunately for Virginia criminal defendants, driving under the influence of alcohol and being intoxicated in public does not need to involve being under the influence or intoxicated, versus having consumed enough alcohol to noticeably affect one’s appearance and/or behavior: “The thrust of the statutory scheme is to prohibit drinking and driving where the driver’s ability is impaired to operate safely a motor vehicle. That degree of intoxication, or being ‘under the influence of alcohol,’ 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.'” Thurston v. Lynchburg, 15 Va.App. 475, 482, 424 S.E.2d 701 (1992). Consequently, in reality Virginia criminalizes a watered down version of driving under the influence. 

Why does any judge state any unnecessary racial distinction?

The Fowlkes and Coffey opinions make unnecessary references to the race of certain witnesses. Fowlkes says: “Dewey W. Fowlkes, was there together with a white man and a colored woman.” Coffey says: “Accused testified that he remembered nothing from the time of the accident until he regained consciousness in the hospital at which time he was talking to a colored orderly; that he did not remember any conversation with the State trooper or the doctor.” Those two appeals were decided respectively in 1953 and 1960, when virulent segregation and racism ran rampant in Virginia. Although Virginia has come a long way with racial justice since then, we have much farther to go.

Fairfax DUI lawyer Jonathan Katz focuses nearly one-third of his law practice on DWI defense and nearly one hundred percent of his work on criminal defense. He is among the small percentage of Virginia DUI defenders who is a member of the essential National College of DUI Defense (NCDD) or its equivalent, and an even smaller percentage who has been trained on administering field sobriety tests (FSTs / SFSTs) on people who have consumed alcohol, by one of the nation’s top FST trainers to police. Learn the major difference that Jon Katz can make for your defense through a free in-person confidential consultation with Jon about your court-pending prosecution. Contact us at 703-383-1100, info@BeatTheProsecution.com, and (text) 571-406-7268. Hear our weekly Virginia criminal/DUI defense podcast at (including our DUI defense podcast episode).