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  • Andrea Bade


You got pulled over and the Officer believes you’ve been drinking and driving. What should you expect? What are your rights?

Driving under the influence of alcohol or drugs (DUI) is very complex area of law in Virginia. Your blood alcohol level, previous criminal convictions, previous refusals to take the breathalyzer test or get a blood draw, and many other factors can have a major impact on the overall outcome of your case.

Here’s what happens when you get pulled over for a DUI.

Statements to Law Enforcement

One of the first things an officer is likely to ask you is if you have had anything to drink that night or if you have taken any drugs. At this point the officer is investigating, and you are not under arrest. What you should know is that any statements you make to law enforcement can be used in Court.

Field Sobriety Testing

If the officer believes you are under the influence of alcohol or drugs, they will usually conduct several field sobriety tests. You are not required to perform field sobriety tests. They are an investigation tool for law enforcement. However, if you do not perform the tests, the result may be that you are arrested immediately. Field sobriety tests of FSTs include the walk and turn test, horizontal gaze nystagmus, counting on your fingers, one leg stand, and others. When asked to complete these tests, just listen to the directions and perform them to the best of your ability. If you are ultimately charged with a DUI or driving while intoxicated (DWI), an attorney can make sure the officers complied with all the requirements for performing these types of tests. Officers are required to have specialized training and follow specific rules when performing these tests. Your attorney will make sure that the officers did everything by the book, and if something was done incorrectly, your attorney will use this to defend your case.

Search of your Vehicle

During the stop, the Officer may also ask you if they can search your vehicle. If an Officer is asking your permission to search your car, you can say no. There are times when an Officer doesn’t need your permission to search your car.

Breathalyzer Test and Blood Tests

Officers can conduct a Preliminary Breathalyzer Test at the location where the stop occurred. You are not required to take this breathalyzer test. If you decide not to take this breathalyzer test, you will not be charged with refusal to take a breathalyzer. See Virginia Code Section § 18.2-267.

If you arrested for DUI or DWI, you will then be brought to the hospital or the police station. If you are asked to take the breathalyzer test at the police station, know that this is a required test. If you refuse to take this breathalyzer test, then you will be charged with Refusal. Officers who administrate the breathalyzer test have to follow certain protocols and procedures. For instance, Officers have to make sure the breathalyzer machine is tested for accuracy at least every six months pursuant to 6 VAC 40-20-30. Your attorney can make sure that all of these procedures are followed as required by law.

If you are taken to the hospital, then the Officer will likely have to get a warrant to obtain your blood for test results. Officers do this by contacting the magistrate’s office. Usually, they can do this all over the phone or electronically. Once they have a warrant, they will ask the hospital to do a blood test. If you refuse to have your blood drawn you will be charged with Refusal.

For any blood or breath test to be valid under the laws of implied consent, it must be taken within three hours of the alleged offense. See Virginia Code § 18.2-268.2. If you think that your test was taken outside of the three hours, you should definitely contact an attorney.

Refusal to take a Blood Test or Breathalyzer

Being charged with refusal to take a blood test or breathalyzer is a civil offense, but it comes with big penalties. If this is your first offense of refusal and you are found guilty, then your driver’s license will be suspended for one year, along with any other DUI or DWI penalties.

If you are found guilty of refusing to take a breathalyzer test or blood test AND in the past 10 years you were found guilty of refusing to take a breathalyzer test or blood test, or a DUI, or a DWI, then you will be found guilty of a Class 1 Misdemeanor and your license will be suspended for 3 years, along with any penalties for being convicted of a DUI or DWI.

See Virginia Code Section § 18.2-268.3 for more information.

DUI Penalties

If you are found guilty of your first DUI, you face significant penalties. It is a criminal offense called a Class 1 misdemeanor and carries a mandatory minimum fine of $250. The Court can also sentence you to up to 1 year in jail. If your blood alcohol content was above 0.15, then there is a mandatory minimum jail sentence that you will be required to serve.

If you are found guilty of a second DUI within 5 years, then you will serve a mandatory minimum jail sentence of 20 days and can be sentenced to jail for longer. You will also face a minimum $500 fine.

See Virginia Code § 18.2-270.

These are just some of the penalties you face when being charged with a DUI. You also may lose your license, be required to have ignition interlock installed on your vehicle, obtain DMV driving points, face a large increase in your driver’s insurance, and many other consequences. DUIs are a serious offense. It is always advised that you seek out legal advice.

Feel free to contact Shaia’s Law, PLLC with your questions. We are lucky to have a staff that knows criminal law.

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