If you are facing a Virginia DUI charge, it is up to the prosecutor to prove the case against you. Your defense attorney has a lot of potential defenses available to weaken the prosecutor's case. If the prosecutor cannot prove that the driver met all the elements of a DUI beyond a reasonable doubt, the judge should find the defendant “not guilty.”

The prosecutor has the burden of proof, acting on behalf of the Commonwealth of Virginia, to present the evidence to the judge that supports their case. This generally includes police reports, police testimony, and chemical test results. However, chemical tests can be inaccurate and the police can make mistakes. Someone should not be convicted of a crime based on faulty tests and mistakes.

Ways to Fight a DUI Conviction in Virginia

There may be a reasonable basis for challenging just about all of the evidence presented by the prosecutor. This includes challenging

• Unlawful traffic stops
• Illegal searches/seizures
• Improper field sobriety tests
• Inaccurate breath and blood tests
• False-positive BAC levels
• Non-alcohol related reasons for appearing impaired

There are two primary ways your Virginia DUI defense lawyer can challenge the prosecutor's evidence in a criminal court case. In certain cases, this includes filing pre-trial motions to keep improper evidence out of court and by presenting their case to the judge or jury.

A motion to suppress is a request to exclude certain evidence from trial. If the motion is successful, a judge will not consider this evidence against the defendant or in a jury trial, the jury may never even see the evidence. In some cases, when the prosecutor's evidence is suppressed, they may have no case to prosecute and the charges will be dropped. When this happens, the defendant can win without even going to trial.

Unlawful Traffic Stops in Virginia

It may seem like the police will pull someone over for no reason at all. However, legally, the police need reasonable suspicion to pull you over. The police need some articulable reason to believe that you are doing something unlawful. If the police do not have reasonable suspicion to make a traffic stop, then any evidence gathered from an illegal stop may be able to be suppressed.

However, reasonable suspicion to stop the car does not have to be based on a reason to think the driver is intoxicated. The police can stop a car for even a minor traffic violation. During that stop, the police may then suspect the driver may be intoxicated. Many DUI arrests are based on initial stops for something like driving without headlights turned on, a broken tail light, or improper lane change.

If the police pull you over without reasonable suspicion that you were doing anything illegal, your lawyer may be able to suppress any evidence gathered after that illegal stop. This includes observations that the driver smelled of alcohol, breathalyzer tests, or field sobriety tests. Without this evidence, the prosecutor may have no case.

Illegal Search & Seizure

Even if the police have probable cause to make a traffic stop, it does not give them full access to search whatever they want. The Fourth Amendment to the Constitution provides certain protections against unreasonable search and seizure by the government.

Before the police can search your vehicle, they must have probable cause to believe that the vehicle contains some evidence of criminal activity. Even then, the police are generally limited to searching those areas of the vehicle. If the police do not have probable cause to search the vehicle, then any evidence the police gather may have been in violation of the individual's constitutional rights and that evidence should be suppressed.

There are some exceptions to the laws against illegal search and seizure. If the police see evidence of illegal activity through the windows of the car, that may fall under the plain view exception. For example, the police stop a driver for failing to make a complete stop at a stop sign. The officer then sees a beer can sticking out from under the passenger seat. Because the can was in plain view, that evidence may be admissible.

Another common exception is where the driver gives the police consent to search the car. Many drivers feel pressured into allowing the police to search them or their vehicle. They may even make it sound like things will go easier for them if they consent to a search. However, by consenting to a search, you may be giving up your right to challenge the illegal search when you have your day in court.

If the police pull you over for a traffic stop and there is no other evidence of illegal activity, it may be difficult for a police officer to claim that he or she had probable cause to search the vehicle. If the police search the vehicle in violation of your rights and find alcohol or drugs, your attorney may be able to suppress the evidence in your DUI (or drug possession or underage alcohol possession case).

Improper Field Sobriety Testing in Virginia

Most people are familiar with field sobriety tests from watching cop shows. These are the roadside tests law enforcement officers conduct to evaluate a driver's impairment. There are three so-called standardized field sobriety tests (SFSTs). However, these tests can be highly inaccurate.

Field sobriety tests rely on the police giving proper instructions and the police officer's subjective observations. They can also be compromised by environmental factors, like speeding traffic, flashing lights in the subject's eyes, and the stress of standing on the side of the highway like a criminal.

There are also a number of reasons why someone may “fail” these tests that have nothing to do with alcohol or drugs. Age, physical ability, weight, type of shoes, medical conditions, and other factors can all make it more difficult or even impossible to complete these tests to the police officer's satisfaction.

One-Leg-Stand Test

The One-Leg-Stand test requires the suspect to raise one leg approximately six inches off the ground, with the foot pointed out, and while holding the position, count out loud until told to stop.

Moving their arms to keep balance, touching the foot to the ground, stopping counting, looking up, or falling over may all be reasons why the police officer thinks the test shows the driver is impaired.

Walk-and-Turn Test

The walk-and-turn test instructions generally include walking heel-to-toe along a straight line for nine steps. Then turning and returning heel-to-toe, counting the steps out loud.

Losing balance, failing to count out loud, stepping off the line, turning too soon or too late, or starting too early may be considered a failed test.

Horizontal Gaze Nystagmus Test (Eye Test)

The horizontal gaze nystagmus (HGN) test is an eye test where the officer asks the individual to follow a pen, light, or finger back and forth with their eyes. Many drivers end up performing this test without even realizing it is part of the roadside field sobriety tests.

With the HGN test, the officer is looking for an involuntary movement of the eye that can occur when the driver is impaired by alcohol or other substances. This requires the officer to observe specific smoothness of the movement, angle of onset, and maximum deviation.

SFST Training and Instructions in Virginia DUIs

All these tests are also as much about following instructions as completing the task. The officer generally says not to begin until the individual is told to do so. The police officer then gives the instructions and finally says to begin the test. If you start the test early or forget part of the instructions, that may be considered a failed test.

It is not uncommon to start the test early or forget all the instructions. This does not necessarily mean the driver is drunk, only that they are nervous. It is not against the law to be nervous when the police pull you over and have you perform tests on the side of a busy road. However, that may be the reason the officer says you “failed” the field sobriety tests.

These tests are also based on the officers giving the full instructions, the correct instructions, and properly observing the test. When an officer forgets to give part of the instructions, the driver can “fail” through no fault of their own. Similarly, if an officer moves the pen too quickly on an eye test or doesn't estimate the right angle of eye movement, the driver could “fail” the test even when completely sober.

Inaccurate Breath and Blood Tests in Virginia DUI Cases

Breath and blood chemical tests are not always accurate. These tests rely on the machines being properly cleaned and calibrated. To be accurate, these tests also have to be properly administered and observed. Other problems can be caused by outside factors or the individual's own body chemistry and medical conditions.

Using a breath test machine to measure an individual's blood alcohol content (BAC) requires the officer observe the individual for a certain amount of time. It also requires regular maintenance of the machine and calibration. When using a blood test, contamination of the blood sample or mixing up samples could show a driver with drugs in their system or a BAC over the limit even if the driver has not consumed any alcohol or drugs. Even a minor error could bump a driver up from a 0.07% BAC to an over-the-limit 0.08% BAC.

Your DUI defense lawyer can subpoena the police equipment records to check for maintenance and calibration. Your attorney can also review police records to find any evidence that the officer's were not following the rules. Your attorney can also present evidence of the inaccuracies of these tests to the jury in your defense.

False-Positive BAC Levels

There are a number of reasons why a breath or blood test could show a driver had a BAC over the limit or drugs in their system that is unrelated to drinking or taking drugs. This may include using mouthwash or an inhaler shortly before a test or eating certain foods. Some medical conditions, like acid reflux or GERD, may also cause elevated mouth alcohol levels that make it seem like the driver has a higher BAC.

Non-Alcohol Related Reasons for Appearing Impaired

Medical conditions or disabilities can also make a driver appear impaired to a police officer looking for drunk drivers. Even temporary issues, like allergies, physical exertion, the flu, or simply being tired can be identified as signs of impairment to the police. Any of these non-alcohol related reasons may cause

• Slurred speech,
• Bloodshot eyes,
• Poor balance, or
• Difficulty concentrating on instructions.

Charlottesville DUI Defense Lawyer

Getting arrested for drunk driving does not mean you have to be convicted. There are a number of potential DUI defenses in your case. However, the time to fight a DUI is not on the side of the road or in the police station. Your best chance to fight a DUI conviction is having the right criminal defense lawyer on your side. Talk to an experienced Virginia DUI defense attorney about your case. Contact me today for a free consultation.