Earlier in March, Richmond, Virginia DUI defense attorney Bob Battle cast doubt regarding the accuracy of Fairfax County’s breath testing machines. According to Mr. Battle, one of the machines used by the county, the 10-year-old Intoxilyzer 5000, has significant weaknesses. Police officers and courts often use the results of this machine to convict a driver of driving under the influence (DUI) in Virginia.
Bob Battle was representing a driver accused of DUI, when he discovered the weakness in the Intoxilyzer 5000. According to Mr. Battle, when he received the records of the machine, he found out that one of the motors had been replaced. After further investigation, he discovered that Virginia had purchased a number of replacement motors from various companies and that they couldn’t even tell you what motor was in the machine. Without knowing the details of the replaced motors, the entire Intoxilyzer 5000 can be inaccurate.
The Fairfax County, Virginia General District Court judge presiding over the case agreed to allow experts to test the accuracy of the breath machine. However, the prosecution wanted to avoid the testing and offered to reduce the DUI charge to reckless driving, which allowed the motorist to keep his license. The deal offered by the prosecution was too good to turn down, but Mr. Battle believes that the breath machine will be tested one day.
"I sincerely believe it's going to be like that scene from the Wizard of Oz. Once they roll back that curtain, they're going to find that this machine is not the perfect machine they try make it out to be -- that this is an outdated contraption. That's why Virginia, when they contracted for the new replacement machines, one of the conditions was that it couldn't have this type of motor in it," said Mr. Battle.
There are many sobriety field tests (SFTs) that police will use on someone such as repeating the alphabet backwards. What many people don’t know is that this test among others, are not the standardized tests recommended by NHTSA.
There are only three scientifically reliable tests: the horizontal gaze nystagmus test (follow the pen with the eyes), the walk-and-turn test, and the one-leg stand test.
Virginia police have been known to make mistakes during a DUI arrest. For example, in the one-leg stand test an officer should not test people who are 50 pounds overweight or are physically impaired. Also, the SFTs were designed to predict a .10 level or above and the legal BAC limit is currently .08, leaving room for error. Another defense in a DWI case is the reliability of the breath testing machine itself.
If you have taken one of these field tests, there are many possible defenses available for DUI charges. An experienced Virginia DUI attorney can help you if you have been wrongfully accused of driving under the influence.
The article “Is It Possible to Get Out of a DUI or DWI Charge” has more information on this topic.
Kansas City Chiefs cornerback David Macklin was arrested for drunk driving in Newport News, Virginia on March 13, 2009.
State police spokeswoman Corinne Geller confirmed Macklin was driving a 2005 BMW west on J. Clyde Morris Boulevard and was initially pulled over around 3:30 a.m. Friday morning for illegal window tint.
Reports indicated that a police officer approached the vehicle and the smell of excessive alcohol was apparent. The Virginia State trooper proceeded to give Macklin several field sobriety tests, in which he performed poorly.
“Further investigation determined that the driver’s blood alcohol level was in excess of Virginia’s legal limit of .08,” stated trooper JR Street. Macklin’s blood alcohol test actually showed a level of .11 BAC.
Macklin’s hometown is Newport News, Virginia, where he played basketball and football for Menchville High School. He went on to play football at Penn State and was drafted into the NFL in 2000. Last season he played cornerback for the Kansas City Chiefs.
The charges Macklin was arrested for are having illegal window tint and DUI, a first-time misdemeanor offense. He was held at the Newport News city jail and was released after he posted a $2,500 bond. His hearing is being held Monday, March 16 at the Newport News General District Court.
Macklin’s arrest is one of many that has occurred during this St. Patrick’s Day holiday weekend. Virginia is cracking down on dangerous drivers. The cities of Richmond, Lynchburg and several surrounding jurisdictions in the state of Virginia have launched campaigns to keep the roads safe this St. Patrick’s Day. Every year, hundreds of people die in alcohol related accidents, and several cities in the sate of Virginia are trying to do their part in decreasing this statistic.
Virginia issues harsh punishments on drivers convicted of DUI. A first time DUI offense in Virginia could result in a court fine up to $2,500 and a license revocation of one year. Plus, you will be on probation for one year. A second DUI offense in Virginia could result in a license suspension for three years and another substantial court fine. However, the punishment becomes even worse in some circumstances when there is a sentence enhancement.
A sentence enhancement increases the amount of punishment for a DUI conviction. There are certain factors that lead to sentence enhancements including:
• A child was in the vehicle at the time of suspected DUI
• There was a past offense within 5 to 10 years
• Blood alcohol content (BAC) was higher than .15 percent, almost twice the legal limit
• Property was damaged
• Someone was injured
• The driver was under the age of 21
• A chemical test was refused
Any of these situations could result in a harsher punishment. Virginia courts hear so many cases each year that the prosecution often puts pressure on the defendants to quickly admit to guilt. If you have been accused of drunk driving in Virginia, you do not have to promptly admit to being guilty, as there are many DUI defenses available. You should contact an experienced Virginia DUI attorney immediately following a DUI arrest for expert legal advice.
If you are a diabetic and have been pulled over for suspected DUI in Virginia, there is a good chance that you will be arrested, even if you haven’t been drinking alcohol. Drivers who have diabetes and suffer from hypoglycemia are often mistakenly accused of being intoxicated. Some of the symptoms associated with hypoglycemia are similar to those linked to intoxication, including slurred speech, impaired motor skills, poor balance and drowsiness. A diabetic may also stagger as a result of hypoglycemia.
Drivers who have diabetes and are experiencing hypoglycemia, which refers to low blood sugar levels, frequently fail the standard field sobriety tests in Virginia. A breath test used to measure blood alcohol content may give a false reading for a diabetic. When someone who has diabetes has developed hypoglycemia, there can be acetone in their mouth, which can also be smelled on the breath. A breathalyzer will often mistake the acetone for ethyl alcohol that is found in alcoholic beverages. As a result, the diabetic’s BAC reading will be high, although they haven’t been consuming alcohol.
An experienced Virginia DUI attorney can help you if you have been wrongfully accused of driving under the influence. You should not be punished for DUI when a preexisting health condition, such as diabetes, caused you to fail the field sobriety tests and give a false BAC reading.
The article, “Diabetes Can Give an Inaccurate BAC Reading,” has more information on this topic.
If you have been arrested for DUI in Virginia, chances are you will be charged with a misdemeanor, not a felony. Even though both are considered criminal charges, a misdemeanor carries a lesser punishment.
A DUI conviction that is classified as a misdemeanor in Virginia may still carry a short jail sentence and fine, but the punishment is far less severe than a felony offense. If your DUI conviction is tried as a felony, you could be facing a state prison term of more than a year, in addition to a fine, license revocation and other consequences.
Every state is different in regards to how DUI convictions are classified. In Virginia, a DUI offense is a misdemeanor unless it is the third offense within ten years. A third DUI offense will be prosecuted as a Class 6 felony. A fourth DUI offense will require mandatory time in jail of one year.
The Commonwealth of Virginia is particularly tough on convicted drunk drivers. The section of the Virginia Code that addresses DUI is over 40 pages in length. Even a first time DUI offense in Virginia can result in jail time, a fine of up to $2,500, a license revocation of one year and mandatory attendance of a DUI educational program provided by the Virginia Alcohol Safety Action Program (VASAP). If you are given a sentence enhancement, you could be facing an even worse punishment.
The article, When is DUI a Felony Offense, has more information regarding when DUI is charged as a felony versus a misdemeanor.
On January 30, 2009, two vehicles were totaled and two men injured following an accident on Rt. 621 in Warsaw. The crash occurred at approximately 9:00 PM on Chestnut Hill Road when a BMW sedan and pickup truck struck head on.
According to Virginia State Trooper Jene Brooks, who was in charge of the crash scene initially, the two men sustained minor injuries and refused medical treatment. The men were released.
At the time of the crash, Franklin Taylor of Caret was driving a 1991 BMW 525i and Sherland Balderson of Warsaw was driving a 1988 Ford F-150 pickup truck. The accident was described as an “angled impact” between the BMW and Ford F-150, according to Brooks.
“It appears that the BMW rode the guard rail and then popped off veering into the other vehicle,” said Brooks.
Following the crash, Taylor was charged with DUI and arrested, according to Virginia State Trooper Joseph Benson. Benson was the one who finished the accident report for the state police. There have been no other charges filed in connection with the accident.
Taylor was arraigned on February 6 in Richmond County General District Court. His hearing is set for May 1, 2009 at 9:00 AM.
Virginia has extremely strict laws when it comes to DUI convictions. First-time DUI offenders may be fined as much as $2500 in Virginia. If you are facing a DUI charge in Virginia, you should contact an experienced DUI attorney who can review your case and help you with your defense.
If you are pulled over for a suspected DUI in Virginia, there is a good chance that you will have to do a horizontal gaze nystagmus (HGN) test, as part of a series of field sobriety tests. Police officers use the HGN test in Virginia to help determine if you are intoxicated. Even though scientists believe the HGN test is reliable, there are my factors that can alter the results.
Nystagmus is defined as an involuntary movement of the eyeball that occurs when there is a disturbance of the inner ear system or the oculomotor of the eye. Consuming alcohol is supposed to hinder the ability of the brain to control the eye muscles, which is where the HGN test comes in to play. The more alcohol that is consumed, the great amount of involuntary movement of the eyeball.
During the HGN test, a police officer will be looking for movement in the eye when you look to the side. The officer will most likely ask you to follow an object with your eyes, such as a pen or penlight. Generally, the object is held about 12 to 15 inches from your face and at a slightly higher eye level. It is important that the police officer is able to clearly see your eyes, if not, the results could be wrong.
There are many causes of nystagmus, besides alcohol consumption. Neural or muscle activity, brain damage, eye strain, brain tumors, inner ear diseases and other health problems can all result in nystagmus. If a police officer is not properly trained in administering the HGN test, the results could be skewed.
If you have been arrested for a Virginia DUI charge, it is crucial that you contact and an experienced DUI attorney who can review the details of your HGN test and other field sobriety tests.
The article, “The Horizontal Gaze Nystagmus Test Used in DUI Arrests,” has more information on this topic.
Various states, including Alaska, Arizona, Colorado, Illinois, Nebraska and Washington, have already enacted laws requiring first time DUI offenders to install ignition interlock systems into their vehicles. These devices are similar to breathalyzers and are installed into the vehicle’s dashboard. The engine will not start until the driver blows into the device and has a low reading (according to the programmed blood alcohol concentration, BAC).
Virginia has proposed a similar law that would require drivers who are convicted for a first time DUI offense to install an ignition interlock in Virginia, even if there was a low BAC at the time of arrest. This proposed law would revise the state’s existing law that requires ignition interlocks for repeat DUI offenders and for those who were arrested with a high BAC in Virginia.
This proposed law, and similar proposed laws in other states, has been a topic of many intense debates, which is discussed in the article, “Ignition Interlocks for First Time Offenders is a Heated Topic.” The critics of this law feel that the requirement of an ignition interlock for a first time DUI offender is unfair and basically gives the same punishment to that driver as someone who has multiple DUI offenses. Opponents to the law believe that ignition interlocks do not solve the problem of drunk driving. A former MADD president was even quoted as saying that the drunk driving problem has been reduced to “a hard core of alcoholics who do not respond to public appeal.”
Advocates of the law have cited a 2008 study by the Pacific Institute for Research and Evaluation, which showed that interlock devices in New Mexico reduced the number of repeat DUI offenses by about two-thirds in the state. However, critics believe that this decline could also be contributed to other factors, such as education programs.
If laws, such as the one being proposed in Virginia, are passed, many feel that judges will not have the ability to distinguish between drivers who have had a few drinks and barely go over the legal limit and those who go way over.
Albemarle County Police kicked off a campaign to nab intoxicated drivers on Super Bowl Sunday in Central Virginia.
Before the Super Bowl, Corporal Ken Richardson explained, “We are going to have heavy patrol from the roads during the time of the Super Bowl to look for intoxicated drivers.”
Albemarle County Police added seven traffic patrol units that Sunday to watch county streets before the official kickoff into the early hours of Monday morning, said Richardson.
Richardson said that they were looking for any unusual driving habits that people were doing, such as crossing the lines.
Central Virginia bars also helped out in the efforts to keep drunk drivers off the roads in Albemarle County. Kiersten Kaufman of the Wild Wing Café in Charlottesville said that her staff was prepared to cut off fans who had enough to drink. “We train our staff very, very well to know the signs of when someone is a little too intoxicated, and often times those signs present themselves before they’ve gotten to that point,” said Kaufman.
Some of the signs that Kaufman said to watch out for that would indicate someone had too much to drink include slurred speech, not walking properly, putting their head down or slowing down as far as drinking.
Richardson said that he hoped everyone would have come up with a plan to get home safely from Super Bowl parties. One of the ways that people could prevent an arrest for driving under the influence (DUI) was by designating a driver.
Based on a proposed bill, if you have been convicted of DUI in Virginia, you would be required to install an ignition interlock even if your BAC was below 0.15 percent. The bill, known as House Bill 2041, would revise the current state law that requires only repeat DUI offenders and drivers with a BAC above 0.15 percent to install these devices. This bill is being discussed for the second year in a row and many Virginia legislators are concerned. If it passes, Virginia would join eight other states that have similar laws.
An ignition interlock system is a small handheld device that attaches to the dashboard. Before a driver can start the car, he or she has to blow into the device, which will measure BAC. The driver is also required to blow into the device at designated times while driving. The engine will only start if the driver’s BAC is lower than .02 percent.
According to a member of the House Courts of Justice committee, the cost of obtaining and installing the ignition interlock system is estimated at $455.
Del. Sal Iaquinto R-84 is the sponsor of the bill and believes that if passed, it will deter repeat DUI offenses. He said that there is a 64 percent decline in DUI recidivism after the ignition interlock system is installed.
Critics of the bill are concerned that it could negatively impact people who need to drive for their jobs and people with multiple vehicles. Del. G. Manoli Loupassi, R-68 said that since so many people rely on company vehicles for their jobs, the proposed bill could have “desperate impact on a large number of people.”
If the bill is passed, it will go into effect January 1, 2010.