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NOTE: Today’s blog entry only addresses matters in Virginia state courts.

A Virginia drunk driving/DWI conviction, at minimum, brings one year of suspended driving with the option to apply for restricted driving privileges, payment to complete alcohol education, and a fine and court costs. Jail time also usually is involved, whether suspended or a combination of active and suspended time. Subsequent convictions within certain timeframes bring mandatory jail time and long periods of no driving before being eligible for restricted driving privileges.

Ordinarily, for first-time DWI defendants with alleged blood alcohol levels under 0.15 and with no other court charges, I have taken such cases to trial unless we have negotiated a reckless driving disposition. Details of some of those trials are here. Many of my clients with alleged BAC’s of 0.15 and over, and others with charges of being repeat offenders, still proceed to trial with me.

Now, prosecutors are going to find even more defendants going to trial in DWI cases, now that the ignition interlock is required for all DWI convictions arising from arrests on and after July 1, 2012. Va. Code § 18.2-270.1. Beforehand, for instance, prosecutors could entice guilty pleas from DWI defendants by striking alleged BAC scores of 0.15 or higher to avoid the mandatory interlock and mandatory jail time. Now, such a deal does not sound as enticing now that the Interlock will be required. Perhaps court time will be taken up so much with increased numbers of DWI cases going to trial rather than with guilty plea resolutions that the state government may wake up and strike the mandatory ignition interlock law.

For those who receive jail time, they get one-day credit for the day they were arrested, and, where I practice, ordinarily get released very early in the morning on the day of their release (12:01 a.m. in Fairfax, for instance). Consequently, a five-day mandatory jail period does not look as bad when doing the foregoing math.

Word is already coming in among my colleagues about some judges who believe that a post-July 1, 2012, DWI conviction date mandates the ignition interlock even for pre-July 1 arrests, whereas some other judges believe that a pre-July 1 arrest with a post-July 1 DWI conviction does not mandate the interlock, but just makes the interlock discretionary. My argument is that retroactive application of the ignition interlock law is unconstitutional and not mandated by the interlock statutory provisions. 

Fortunately, the law provides the sentencing judge the discretion not to require the interlock for work vehicles. Va. Code § 18.2-270.1 (F). Fortunately also, the Court can order the interlock to be installed for as low as six months. Va. Code § 18.2-270.1 (B).

One thing is for certain: DWI prosecutions should be defended tooth and nail.

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