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Virginia DWI Enforcement Follows Defendants to Private Property

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Virginia DWI enforcement does not stop at the boundary of private property, says Fairfax DUI lawyer

Virginia DWI enforcement is aggressive, incessant, and widespread. As a Fairfax DUI lawyer, I know that even sleeping in your running car (or with your key simply in the ignition) in your driveway after drinking too much beer, wine, or alcohol does not protect you against a driving under the influence investigation, prosecution and conviction. Although police are limited to when they can enter your curtilage, which the Virginia Court of Appeals reminds us is “'the land immediately surrounding and associated with the home'," (Saal v. Virginia, 72 Va. App. 413 (2020) (quoting Oliver v. U.S., 466 U.S. 170 (1984))), the Constitutional exceptions are numerous that still allow the police to enter your curtilage and to investigate for crime. Id.

Can police use a reason for lawfully being on my property as an excuse for investigating an unrelated alleged crime?

If you are going to involve yourself in illegal activity on your property, do not assume that such evidence will be shielded by the police merely because the Constitution's Fourth Amendment's limits against warrantless police searches and requires probable cause to issue a search warrant. David Owen Preston learned that when the Virginia Court of Appeals declined her claim of an unlawful Virginia DWI enforcement action against him under Virginia Code § 18.2-266 when police lawfully entered his property when his mobile home tenant complained, the tenant told police he was driving intoxicated on the property, and the law enforcement officers (LEO) next turned their attention on Mr. Preston. LEO saw Preston in his running car while talking with the tenants. (WARNING- Do not do what Turner next did: "While they talked, appellant continued to drink his beverage and, at one point, offered [the police officer] a drink." Preston v. Commonwealth of Virginia, Record No. 1876-22-1 (Oct. 31, 2023) (unpublished).

Can police make a warrantless investigation of me when seeing suspected criminal activity on my real property?

So long as police 'officers are within the geographic scope of the implied license, they "are free to keep their eyes open."'... However, 'whether an officer’s actions fall within the implied license ‘depends upon the purpose for which [he or she] entered."' Preston (citations omitted). Does that mean that police might use subterfuge to enter your property with an ulterior motive of searching for criminal activity? Yes, just as many police make presumptive traffic stops (if the stop is under a statute allowing a stop) with the intention of looking for more serious offenses, for instance, with Virginia DWI enforcement.

What should I do if I think or know that the police have violated my rights in engaging in Virginia DWI enforcement?

Whenever you are a criminal defendant or caught in Virginia DWI enforcement, obtain a qualified Virginia criminal defense lawyer to advocate for you in a timely manner. Fairfax criminal lawyer Jonathan Katz has successfully defended hundreds of DUI defendants and thousands of people prosecuted for alleged crimes in general. Call 703-383-1100 for your free initial in-person confidential consultation with Jon Katz about your court-pending Virginia DUI, felony or misdemeanor prosecution.