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Dui fault Myth – Chapter 12

Chapter 12 DWI Bob Keefer: DUI Myth fault

CHAPTER 12

"WHAT DO I NEED TO KNOW ABOUT THE LAW IN MY STATE?"

Virginia-DUI LAW

Differences in the Act DUI in Virginia from other states

Virginia's legal system has several notable differences DUI from another state the major differences are summarized below.

DWI and DUI in Virginia are the exact same offense

In most states there is a difference between DW I, "driving while intoxicated and DUI, driving under the influence. "For example, in most states driving while intoxicated is a crime worse than driving under the influence. Other states have even a third conclusion available, such as operating while intoxicated, or OWI.

In Virginia, there is no difference between DUI and DWI. Virginia Code Section 18.2-266 makes it illegal to drive while intoxicated or under the influence of alcohol and drugs.

The Code of Virginia defines intoxicated as follows: "Intoxicated" means a condition in which a person has drunk enough alcoholic beverages visibly to affect their own way, disposition, speech, muscular movement, general appearance or behavior. "

Alcohol content blood (BAC) refers to BAC while driving

Unlike many other states of Virginia is looking at the alcohol content in the blood (BAC) while driving. Other states base their legal limit of BAC at the time of the taking of breath or blood sample. The distinction is that Virginia drivers are able to present evidence that his BAC while driving is less than the subsequent blood or breath test.

Under the Virginia DUI law, any person driving on the roads of Virginia has, according to Virginia implied consent law, as their "consent" for a breath or blood if arrested for DUI. If the test results is a .08 or more, there are significant effects in the processing of own case. One way to prove DUI, known as the "per se" law, see nothing but the result of breath. If it is 08 or more, the person is guilty of DUI and if it is below 08, the person is not guilty of DUI. However, from Virginia looks BAC at the time of driving, the accused still has the capacity to present expert testimony that his BAC while driving, in fact less than a .08.

Similarly, another way to prove DUI, look at the result .08 or higher breath as one of the evidence in the trial overall. Although the law says that if the BAC is .08 or more, there is a "presumption" of intoxication, The Virginia Court of Appeals ruled in 2007 that these assumptions are an unconstitutional violation to the Constitutional guarantee of the presumption of innocence of any criminal trial unless the language is interpreted as meaning that there is a mandatory presumption of intoxication. The Virginia Court of Appeals that the courts must interpret the words "presumed" means "can be inferred." Thus, in a DUI trial in this section, the court may infer (but is no longer necessary to assume) that someone is intoxicated if the prosecutor shows that they were 08 or more, while driving. Again, the defendant may present evidence that, in fact, their rate of alcohol while driving is less than a real 08 or that results will not be much weight due to problems with the machine or test mode. If the defendant is able to do this, then the judge can not make any inferences based on the breath result.

The right to new trial on appeal before the Circuit Court of Novo Trial

General District Court, usually referred to as "court transit "for those accused of DUI, is the smaller of the two trial courts in Virginia. There is no jury trials in the general level of the District Court. Does the United States Constitution guarantees a defendant the right to a jury trial? Yes.

Virginia recognizes every person convicted in the District Court General what is called a "trial de novo" on appeal to the higher level trial court in Virginia, known as the Circuit Court. Therefore, any charged with DUI in Virginia that is not satisfied with the judge's ruling or sentence in the General District Court, has the ability to appeal to the Circuit Court and as soon as the appeal is noted, the lower court's conviction is completely obliterated the record. I like to tell my clients that is like taking an eraser to a slate, and the client is in the exact position they were before the first test (ie, we assume they are innocent and have not been convicted of DUI.) Or, to use a field golf analogy, Virginia allows all clients of a DUI "Mulligan" on their first DUI trial!

The courts of first instance ruling on fines and jail time and license suspension issues

In many states, a DUI charge leads to two separate trials. The trial court against a judge who determines whether someone is guilty and fined and / or jail time someone receives, and in administrative license hearing before the state Division of Motor Vehicles Motor. Virginia does not have a separate hearing to determine the status of driver's license of a person. By statute, the judge must suspend the license of the person for a specific time depending on whether it is a first or subsequent offense. The judge has the authority to grant a restricted license that the person to drive to work, school, education classes on alcohol and driving some doctors and family.

Virginia DUI Penalties

Administrative License Suspension (ALS)

For a first DUI offense and / or denial of breath test, your license will be automatically suspended for seven days if your BAC is 0.08 percent or higher.

For a second DUI offense and / or breath test refusal, your license will be suspended automatically for 60 days or until you go to trial, whichever comes first.

A third DUI offense and / or breath test refusal, your license will be automatically suspended until you go to trial. The conviction of a DUI offense result in suspension of your driver's license and other penalties in addition to suspension administrative.

First Offense – Penalties

i) BAC <.15

Class 1 misdemeanor (up to $ 2,500 fine and 12 months in prison) with a mandatory minimum fine of $ 250.

ii) .15 to .20 BAC

If the level of the person of alcohol in blood and indicates the chemical test administered as provided in this article was at least 0.15, but no more than 0.20, which is to be confined in jail for an additional period mandatory minimum of 5 days or

iii) BAC> .20

if the blood alcohol level was more than 0.20, will be confined in jail for an additional mandatory minimum of 10 days.

License Suspension

License revoked for 1 year. Eligible for Restricted operator's license immediately. Ignition necessary for BAC of .15 or more.

Second Offense – Penalties

A) committed at least 5 years after a prior offense

• Minimum $ 500 fine

• Confinement in jail for a month one year. 20 days mandatory minimum sentence in prison.

• If the blood alcohol level was between .15 and .20, 10 additional days required minimum jail sentence.

• If the BAC is greater than 20, others 20 days mandatory minimum jail sentence.

B) committed within 5 to 10 years from a prior offense

• Minimum $ 500 fine

• Confinement in jail for one month to one year. 10 days mandatory minimum sentence in prison.

• If the blood alcohol level was between .15 and .20, 10 additional days mandatory minimum jail sentence.

• If the BAC is greater than 20, others 20 days mandatory minimum jail sentence.

License Suspension

License revoked for 3 years.

• 2nd conviction within 5 years with the right to license Operator restricted after 1 year. Ignition necessary for OL restricted.

• 2nd conviction within 5-10 years that may benefit Operators of Restricted License after 4 months. Ignition necessary for OL restricted.

Third offense – Penalties

A) All 3 committed within 5 years period

• Class 6 CRIME: 1-5 years in prison, or up to 12 months in prison and fined $ 2,500.

• Mandatory minimum jail sentence of 6 months

• mandatory minimum fine of $ 1,000.

B) All committed more than 3 5 years and up to 10 years term

• Class 6 CRIME: 1-5 years imprisonment or up to 12 months in prison and fined $ 2,500.

• Mandatory minimum jail sentence of 90 days.

• Minimum mandatory fine of $ 1,000.

• License Suspension

License revoked indefinitely.

Fourth Offense Penalties in 10 years

Felony Class 6 to a mandatory minimum of 1 year imprisonment and mandatory minimum $ 1,000 fine

License Suspension

License revoked indefinitely.

Transporting children under the influence

Conviction of any crime of DUI child passengers (aged 17 years or less) in the vehicle at the time of the offense carries a mandatory additional term of imprisonment of five days, in addition to any fines and other prison sentences. It can also be seen an additional fine of at least $ 500 and up to $ 1,000.

A second DUI offense with a minor (17 years or less) in the vehicle is an additional requirement for community service 80 hours in addition to all other fines and jail sentences.

Multiple Offenders and the Trauma Center Fund

Virginia also requires that any person has been previously convicted of DUI / DWI in any state to pay $ 50 Trauma Center Fund to subsidize the cost of emergency medical care to victims of accidents in the alcohol or drug blocks the use of the car.

Virginia Alcohol Safety Action Program (ASAP)

If convicted under Virginia § 18.2-266 (DUI / DWI statute) or Virginia § 46.2-341.24 (DUI / DWI in a commercial vehicle), Virginia law requires registration as soon as possible. This course costs between $ 250 and $ 300. The program is 20 hours and focuses on substance abuse and driving, substance abuse and health, and self-evaluation of the potential for substance abuse.

Power Device Program Security

Virginia requires that any person convicted for a second DUI or any person with a BAC greater than 15 for their first DUI are ignition interlock system installed. This system registers the drivers BAC through breath test each time the car is started. It also requires hit the driver in the breathalyzer ever 5-20 minutes.

8 Secrets

1. If everyone insists on their constitutional right to trial, the prosecutor in court all day.

2. In most cases, mandatory minimum sentences for DUI are so harsh that a defendant in a DUI risk absolutely anything by going to trial. Many clients ask me whether a judge will punish with a more severe penalty if they assert their right to trial. The Virginia legislature has raised the minimum penalty for all DUI cases to a level so high that, if you decide to go to trial if necessary, in most cases, as a practical matter, that are going to get the same sentence as the person pleads guilty.

3. The prosecutor did not want to be there. No one takes a job at an attorney's office for prosecution fantasized in traffic court! In most jurisdictions, prosecutors prefer to try their cases of serious crimes to be handled a record traffic court. Moreover, the prosecutor has 20 to 30 cases with other lawyers in the court file that should handle traffic that day.

4. The prosecutor is not ready. In the vast majority of jurisdictions in Virginia, prosecutors do not look into trafficking cases early. Most of my customers are surprised when I tell them that it is impossible to contact an attorney with the knowledge your case before the hearing date to discuss your case, because prosecutors do not look into cases early. In most jurisdictions, someone without a lawyer present, the prosecutor is not involved. Therefore, it is impossible for someone trying to represent yourself in these jurisdictions to discuss a possible plea bargain with the prosecutor, because the prosecutor did not talk to them. In some jurisdictions, including Virginia Beach, there is not even a prosecutor in traffic cases, even a DUI with a lawyer!

5. The police officer is not ready. His case is just one of an entire file full of cases that the officer has at that time. It is not unusual for an officer from 5 to 10 cases DUI on a date, plus dozens of traffic tickets. The officer often has little or no memory of his arrest. That becomes apparent time and again in I object to court when an official proof by reading his notes and, after my objection is sustained by the judge, the officer has no recollection clearly independent arrest.

6. Most prosecutors know very little about science (or lack thereof) behind the field sobriety tests. At no time during law school professor has ever: "Today we will learn about standardized field sobriety tests." A thorough knowledge of these tests actually hurt their cases and prevent them from making arguments that prosecutors usually do listen to the judges to try to argue that the results of these tests should be given more weight than they had ever intended. For example, the three standardized field sobriety tests are only used to predict a BAC of .10 or more. Since the ceiling legal is 08 now, almost no weight that a judge can give the test as someone with a BAC of .08 or .09.

7. The police officer did not follow procedures suitable for field sobriety tests. If a police officer receives adequate training on field sobriety tests, they were told the rules and procedures under with the National Highway Traffic Safety Administration (NHTSA). However, for example, the "follow the pen with his eyes-test (test for horizontal gaze nystagmus, or HGN), the manual says that if the suspect moves the head during the test, the computer must use the torch or the free hand as a chin rest of the suspect.

In the 25 years of practicing law, I have never seen anything like the official use of a chin rest of a suspect, although in most cases, the employee testifies that the suspect was swaying and unsteady on his feet! The manual also states that the return walk and a single flight test bench should not be done if the suspect is greater than 50 pounds overweight or have physical impairments that can affect balance. The manual also states that the walk test and turn "requires a line the suspect can see. "This is strange.

8. The blood alcohol test equipment is not accurate. The breath test machine is just that: a machine. The machine uses a hypothesis to calculate the amount of alcohol in the blood of a person based on the amount of alcohol that is released to a person breathing. The amount can vary between 1100 and 3200. However, the machine uses a standard ratio of 2100, nearly half between the two.

If the exchange of alcohol in the rate of 1100, the machine gives a reading twice what it should. On the other hand, if the exchange rate in 3200, gives an average reading as high as it should. In any case, the principle is flawed and the readings can vary up to 50% from the actual content of the breath. The manufacturers of the Intoxilyzer 5000 machine all have refused to disclose its source code to defense attorneys. The source codes are basically the mathematical formula that uses the machine to convert a small sample encouragement to a series of blood alcohol content. The Florida and Minnesota courts have held that this refusal is a basis to dismiss the DUI process. Virginia appellate courts still no decision on this issue.

CONCLUSION

A DUI charge is liable to be overwhelmed and at the mercy of a judicial system, police system and legal system do not understand. With the police and prosecutor trying to convict, you may think it is futile to fight charges against him.

The aim of this book is to help you feel more in charge of this potentially overwhelming ordeal, to shed some light on what is happening and to help you find a qualified lawyer who will work to ensure that justice is done. When it comes to his case, justice means required that the police follow proper procedure, that only legally admissible evidence presented at trial, and that you are not convicted on the basis of the opinion one or prejudice.

Regardless of the details of your case, you have the right to find a lawyer who knows what you're going through, who knows what is against and who has years of experience going to bat for other people in your situation for the fight against DUI Myth fault. And a chance to fight for their rights is not simply what you deserve. It's the law.

www.BobKeeferLaw.com

About the Author

Graduated Hampden-Sydney College with BA in History in 1980; Graduated from William & Mary Law School in 1983; private practice in Harrisonburg, VA since 1983 to present. Now mainly representing DUI, reckless driving and persons hurt in motor vehicle collisions.

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