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Debt Dui Myth - Chapter 12
Chapter 12 DWI Lawyer Bob Keefer: DUI Guilt Myth
CHAPTER 12
"WHAT I KNOW ABOUT THE LAW IS IN MY need?"
DUI LAW IN VIRGINIA
Differences in DUI law Virginia from other Member
The Virginia DUI's legal system has some notable differences from other major differences is that will be described below.
DWI and DUI in Virginia are exactly the same Offense
In most states there is difference between a DW I, "driving under the influence and DUI" driving under the influence. "For example, in most countries drink driving is a serious offense than driving under the influence. Other countries have even third finding available such as operating while impaired or OWI.
In Virginia, there is no difference between DUI and DWI. Virginia Code Section 18.2-266 makes it illegal to drive under the influence or under the influence of alcohol and / or drugs.
The Virginia Code defines drunk as follows: " 'Intoxicated' means a situation where a person drunk enough alcoholic beverages to observably affect his manner, disposition, speech, muscular movement, general appearance or behavior. "
Blood Alcohol content ( "BAC") relating to Driving While BAC
Another difference from many countries is that Virginia looks at the blood alcohol content (BAC) while driving. Others will base their statutory limit on the BAC at the time of taking the breath or blood sample. The distinction is that Virginia drivers are able to present evidence that their BAC while driving was lower than the subsequent blood or breath test.
DUI Under Virginia law, anyone driving on the highways of Virginia under Virginia's implied consent law, given their "consent to a breath or blood test if they are arrested for DUI. If this is a test result, 08 or higher, there are significant effects in the prosecution of your case. One way to prove DUI, known as the "per se" law, looks at nothing but the breath results. If, 08 or higher, the person guilty to DUI, if lower than, 08, the person is not guilty of DUI. However, since Virginia looks the BAC at the time of driving, the defendant still has the possibility to present expert testimony that his BAC while driving was in fact less than one, 08.
Also another way to prove DUI, looks at, or above 08 breaths as a result of the evidence in the overall process. Although the law says that if the BAC is 08 or higher, there is a "presumption" of intoxication, the Virginia Court of Appeals ruled in 2007 that such a presumption is an unconstitutional infringement on the Constitutional guarantee of the presumption of innocence in criminal proceedings, unless the language is interpreted that not a mandatory presumption of intoxication. The Virginia Court of Appeals ruled that the courts should interpret the word "deemed" means can be deduced. " Thus, in a DUI prosecution under this section, the court may be deduced (but is no longer necessary to assume) that a person is drunk when the prosecutor shows that a , 08 or above while driving. Here the defendant may present evidence that in fact actual BAC while driving was under one, 08 or that the results should not be given are much weight because of problems with the machine or the type of test. If the defendant is able to do so, the court may no conclusion on the basis of the breath results.
Right to retrial on appeal to Circuit Court-Trial de Novo
General District Court, usually referred to as "traffic court "for DUI defendants, is the lower of the two courts in Virginia. There are no jury trials in General District Court level. Not the Constitution of the United States guarantee a criminal defendant the right to a trial by jury? Yes.
Virginia grants a person convicted in General District Court what is called a "trial de novo" to appeal to the trial level court in Virginia, known as the Circuit Court. Therefore, every DUI defendant in Virginia, who is unhappy with the ruling of the court or phrase in the General District Court, has the ability to appeal to the Circuit Court and once the action is noted, the conviction of the lower court is completely wiped off his record. I say against my clients that just like an eraser on a blackboard, and the customer is in the exact same position that, before the first test (ie they are considered innocent and have not been convicted of DUI.) or using a golf analogy, Virginia DUI all customers a "Mulligan" on their first DUI trial!
The Courts talk about both fines and imprisonment and license suspension issues
In many countries, a DUI charge leads to two separate studies. The process the court for a judge who determines whether someone is guilty and what penalty and / or prison time someone receives, and in administrative licensing hearing before the state division of motor vehicles. Virginia has no separate hearing to determine the status of the person driving license. By statute, the court has a license from the person to suspend for a certain based on time or is this a first or subsequent offense. The court has the power to a limited license allowing the person to grant driving to work, school, alcohol education and certain medical and family travel.
Virginia DUI Penalties
Administrative License Suspension (ALS)
For a first DUI offense and / or breath test refusal, your license automatically suspended for seven days if your BAC is 0.08 percent or higher.
For half offense DUI and / or breath test refusal, your license is automatically suspended for 60 days or until you go to trial, that always prevailed.
For third offense DUI and / or refusing breath test your license is automatically suspended until you go to trial. Conviction of a DUI offense will result in suspension of your license and other penalties in addition to the administrative suspension.
First offense - Penalties
i) BAC <15
Class 1 offense (up to $ 2500 fine and 12 months in prison) with a mandatory minimum fine of $ 250.
ii) BAC, at 15, 20
If the person's blood alcohol level, as indicated by the chemical test administered under this article at least 0.15, but not more than 0.20, he shall be detained in prison for an additional mandatory minimum period of 5 days, or
iii) BAC>, 20
If the BAC level was over 0.20, he is in prison for an additional mandatory minimum term of 10 days.
License Suspension
License revoked for 1 years. Eligible for immediate Restricted Operator's License. Ignition interlock for BAC of 15 or higher.
Second Offense - Penalties
A) Committed within less than 5 years from a previous offense
• Minimum $ 500 fine
• Confinement in jail for one months to one years. 20 days mandatory minimum prison sentence.
• If the BAC was between 15 and .20, additional 10 days mandatory minimum prison sentence.
• If the BAC was greater than .20, additional mandatory 20 days minimum prison sentence.
B) committed within 5 to 10 years from a previous offense
• Minimum $ 500 fine
• Incarceration one months in prison for up to one years. 10 days mandatory minimum prison sentence.
• If the BAC was between 15 and .20, additional mandatory 10 days minimum prison sentence.
• If the BAC was greater than .20, additional mandatory minimum 20 days imprisonment.
License Suspension
License revoked for 3 years.
• 2nd conviction within 5 years qualify for Restricted Operator's License after 1 years. Ignition interlock Restricted for OL.
• 2nd conviction within 5-10 years are eligible for reduced Operator's License 4 months after. Alcohol Restricted Slot for OL.
Third Offense - Penalties
A) All 3 committed in periods of 5 years
• Class 6 Felony: 1-5 years imprisonment, or up to 12 months cell and $ 2500 fine.
• Mandatory minimum prison sentence of 6 months
• Mandatory minimum fine of $ 1000.
B) All 3 committed more than 5 years and up to 10 years
• Class 6 Felony: 1-5 years imprisonment or up to 12 months and $ 2500 fine cell.
• Mandatory minimum prison sentence of 90 days.
• Mandatory minimum fine of $ 1000.
• License Suspension
License revoked indefinitely.
Fourth Offense Penalties in 10 years -
Class 6 Felony with mandatory minimum 1 years imprisonment and mandatory minimum $ 1000 fine
License Suspension
License revoked indefinitely.
Transporting children under the influence
Conviction of any DUI offense with a young passenger (age 17 or younger) in the vehicle at the time of the offense carries an additional mandatory five days imprisonment in addition to all other fines and imprisonment. You may also be assessed an additional fine of at least $ 500 and $ 1,000.
A second offense DUI with a minor (17 years or younger) in the vehicle is equipped with an additional 80-hour community service requirement in addition to all other fines and imprisonment.
Offenders and the Trauma Center Fund
Virginia also requires everyone was previously convicted of DUI / DWI in each state to pay $ 50 to the Trauma Center Fund to the cost of emergency medical care is subsidized by the victims of accidents in the alcohol or drug use car crashes.
Virginia Alcohol Safety Action Program (ASAP)
If convicted under Va. § 18.2-266 (DUI / DWI statute) or Va § 46.2-341.24 (DUI / DWI in a commercial vehicle); Virginia statutes require registration in ASAP. This course costs between $ 250 and $ 300. The program is 20 hours long and focuses on drug abuse and driving, substance abuse and health, opportunities for self-evaluation and substance abuse.
Ignition Interlock Program
Virginia requires that anyone convicted of half DUI or someone who has a BAC greater than 15 for their first DUI have an ignition interlock system installed. This records the drivers BAC through breath every time the car starts. It also requires that the driver blow into the breath analyzer ever 5-20 minutes.
8 Secrets
1. If everyone insists on their constitutional right to trial, the prosecutor, the court all day.
2. In most cases, mandatory minimum sentences for DUI so hard that a defendant in a trial DUI risk absolutely nothing by going to trial. Many clients ask me whether a judge will punish them with a more severe punishment if their right to a trial in writing. The Virginia legislature has now increased the minimum penalty for all DUI cases to such a high level, that if you decide to process your case, in most cases, as a practical matter, go to same sense as the person who pleaded guilty to get.
3. The judiciary does not want to be. Nobody takes a job at the office of a prosecutor, because they fantasized the prosecution in traffic court! In most jurisdictions, prosecutors continue their criminal cases rather than the handling of a traffic court Docket. Moreover, the prosecutor has 20 to 30 cases with other lawyers in traffic court that Docket to deal that day.
4. The prosecutor is unprepared. In the vast majority of the jurisdictions in Virginia, prosecutors do not advance in traffic cases. Most of my clients are shocked when I tell them that it is impossible for me an officer justice with the knowledge of their case prior to contacting the court date to discuss their case, because prosecutors do not consider the cases before. In most jurisdictions if someone appears without a lawyer, the prosecutor not involved. Thus it is impossible for someone trying to represent himself in these jurisdictions to discuss a possible plea bargaining with the prosecutor because the prosecutor will not speak to them. In some jurisdictions, including Virginia Beach, is not even a traffic attorney case, even one with a DUI lawyer!
5. The police are unprepared. Your case is just one of a whole Docket full of things that the officer on that date. It is not unusual for an officer to have 5 to 10 DUI cases on a date in addition to dozens of other traffic tickets. The officer has little or no memory of your arrest. That is shown time and time again in court when I objected to one witness officer from reading his notes and, after my objection is supported by the court, the officer clearly has no independent recollection of the arrest.
6. Most prosecutors know very little about the science (or lack thereof) behind field sobriety tests. At no time during law school, the professor once said, "Today we learn about standardized field sobriety tests." A thorough knowledge of these tests would actually hurt their cause and prevent them from making arguments I frequently hear prosecutors to judges to make while trying to argue that the results of these tests should be given more weight than they once were meant to. For example, the three standardized field sobriety tests were only used to predict a BAC, or 10 higher. Since the legal limit is now 08, has almost no weight that a court could give it to someone with a taste of alcohol, 08 or 09.
7. The police have not followed the proper procedures for field sobriety tests. If a police officer gets a good education on field sobriety tests, they will be told the correct standards and procedures according to the National Highway Traffic Safety Administration (NHTSA). However, eg the "follow the pen with your eyes" test (horizontal gaze nystagmus test, or HGN), the manual says that if the suspect moves his head during the test, must flashlight the officer or his free hand to use as a chin rest of the accused.
In 25 years of practicing law, I never have to use something like an official one for a suspect chin rest, even though the vast majority of those cases the officer testifies that the defendant was swaying and unsteady on his feet! The manual also states that the walking-and-turn and one leg stand test should not be done if the accused more than 50 pounds overweight or physical limitations that may affect balance. The manual also states that the walking-and-again-test "requires a line that the suspect can see." This is rarely done.
8. The breath testing devices is incorrect. The breath testing machine is just that-a machine. The machine uses an assumption for the amount of alcohol in the blood to calculate of a person based on the amount of alcohol that is released in a person breathing. The amount may vary from between 1100 and 3200. However, the machine uses a standard ratio of 2,100, almost the average between the two.
If you have alcohol on the 1100 exchange rate, the machine gives a reading twice as high as it should. The other hand, if you exchange at the 3200 rate, it gives a reading half as high as it should. In any case, the principle is flawed and lectures can be up to 50% of the actual breath. The manufacturers of the Intoxilyzer 5000 have flat out refused to reveal their source code defense lawyers. The source codes are basically the mathematical formula that uses the machine to a small sample of breath to convert a BAC number. Courts in Florida and Minnesota have already held that this is a basis for refusal to dismiss the DUI. Virginia appeals courts have to rule on this issue.
CONCLUSION
A DUI charge is liable to make you feel overwhelmed and at the mercy of a court system, police and legal system that you do not understand. The police and prosecutors try to convince you, you would think it is pointless to fight the charges against you.
The purpose of this book is to help you become more responsible for this potentially overwhelming temptation, to shed some light on what you go through, and to help a qualified defense lawyer who will work to ensure that justice is done. When it comes to your case, means justice demanded that the police follow proper procedure, that only legally admissible evidence presented at trial, and you will not be convicted under the advice of someone and prejudices.
Loos Eight of the details of your case it is also looking for a lawyer who knows what you go through, who knows what you're against and who has one years experience to BAT for others in your situation by fighting the DUI Guilt Myth. And a chance to fight for your rights is not just what you deserve. It is the law.
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