DOMESTIC RELATIONS AND DIVORCE

CRIMINAL AND TRAFFIC LAW

PERSONAL INJURY LAW

CRIMINAL AND TRAFFIC LAW

1.   What do you do if you are stopped for a DUI (drunk driving)?

a.   If you are highly intoxicated and do not feel you can pass the physical coordination test, then decline to take them. Always take the preliminary breath test offered at the scene of your arrest.

b.   If you feel you have not had too much - a drink or two - and believe that you can complete the physical coordination test, then you should take them. The coordination tests that you will be asked to perform are a vision test, stand on one leg and count to 30, touch the tip of your finger to the tip of your nose approximately 6 times, recite your ABC's as quickly as possible without singing and stopping at the letter "S" and walking a straight line (real or imaginary), heel to toe, turning around and returning down the same line.

c.   Always be polite to the law enforcement officer. You are under no obligation to incriminate yourself so don't say too much.

2.   What is the legal limit of alcohol an individual can consume before being considered to be drunk driving?

There is not a set amount which can be safely considered to be the "legal limit" an individual can consume. The law in Virginia establishes a presumption that an individual is under the influence of alcohol if a chemical analysis of the person's blood or breath indicates there is .08 percent or more alcohol in the person's blood. People should be aware however, that a judge can find someone guilty of drunk driving even if there is no chemical analysis of the amount of alcohol in the person's system. The judge can also find someone guilty even when the chemical analysis may show the person had less than .08 percent of alcohol in his or her blood at the time of the test. The court will hear a lot of evidence regarding the person's physical characteristics at the time of the offense, the person's ability to perform coordination tests when stopped and the driving behavior which the officer observed. Those facts are often just as important in a drunk driving case as the chemical analysis.

3.   How much can you drink before DUI (driving drunk)?

That's very difficult to say. The legal limit in Virginia is .08 and above. Many people can reach that legal by have 2 drinks. Even if you refuse to give a breath test, the Court can convict you if your coordination is poor. Be careful when you drink and drive. You should drink responsibly and take a cab or use a sober driver if you feel you have had too much.

4.   If you are arrested by the police, what should you say to them?

You should politely, but firmly, advise the police that you will not make any statements to them without your lawyer present. That should be your only answer to any questions about your involvement in the alleged crime.

Frequently, statements by defendants are taken out of context and used against the defendant. Many prosecutors will admit that criminal cases are much more difficult to prove when the defendant has made no statement.

You should tell the police only such information as is necessary to identify yourself.

Law enforcement officers may become irritated if you exercise your right to remain silent and sometimes will even try and talk you out of it. It is important that you repeat your request for a lawyer, give them no statement and be polite.

5.   Do you have to let someone search your car if you are stopped?

No. Do not give any law enforcement officer your permission to search your car. Police are only entitled to search cars under very narrow circumstances. Do not consent to a search of your car.

6.   What if the police have searched my car with my permission and find some illegal substance or contraband?

Make no statement to the police other than a request for your lawyer. You are under no obligation to admit to the police that you knew the contraband was in the car. Your right to remain silent in the face of police questioning is guaranteed to you by the United States and Virginia Constitutions. Be prepared to exercise that right.

7.   If I am pulled for speeding, what should I say to the officer?

Again, always be polite to law enforcement officers. They are simply doing their job. If you do not believe that you were speeding, you should say that to the police officer without being offensive.

8.   What is the difference between a felony offense and a misdemeanor?

All criminal offenses are either felonies or misdemeanors. Generally felonies are the more serious offenses and can lead to punishment such as confinement in a state correctional facility or even death. In addition, an individual convicted of a felony loses certain civil liberties. All other criminal offenses are misdemeanors. Even though a person convicted of a misdemeanor may not be punished as severely as one convicted of a felony, a misdemeanor conviction could still result in up to a year in jail.

9.   How is an individual sentenced if found guilty of a crime?

Virginia has adopted a statewide system of guidelines for sentencing in criminal cases. These sentencing guidelines were adopted to try and create uniformity in sentencing throughout the state. The guidelines compute a range of sentencing based upon the nature of the offense involved, the individual's past criminal record, and other pertinent factors. Although the court must review the guidelines for those offenses covered by the guidelines, the court has the discretion to sentence an individual differently in exceptional cases. It may be a more severe or lenient sentence.

If an individual is convicted after a jury trial, the sentencing guidelines are not used. The jury is allowed to recommend punishment without the benefit or restrictions of the guidelines. The judge has the authority to review the jury recommendation, and sentence the convicted individual differently, although that is rarely done. Whether a judge or a jury is determining a sentence, the attorney for the defendant plays a large role in the process.

10.   How is an individual affected if he or she is convicted of a crime?

The type of crime involved dictates the range of minimum and maximum punishment that may be imposed. The least severe misdemeanor offense can result in a fine of up to $250.00. The most serious felony could result in the death penalty. Traffic infractions are dealt with under a different scenario.

Virginia has sentencing guidelines which provide Judges a range of sentences for a particular crime committed by a particular individual. The Judge does not have to follow the guidelines. Many do. Frequently experienced defense counsel can give you an idea of what he believes the Court will do as well.

In addition to court's pronounced sentence, a criminal conviction could have effects beyond the punishment inflicted by the court. If an individual is convicted of a felony offense, he or she will lose certain civil liberties such as the right to vote and the right to own a firearm. If an individual is convicted of a crime involving a sexual offense, he of she could be registered in the statewide registry of sexual offenders. Even a misdemeanor offense could have long range effects against a person seeking a new job or applying for certain privileges or benefits. No criminal charge should be taken lightly.

11.   What types of driving problems constitute reckless driving?

Generally an individual can be found guilty of reckless driving if he or she drives a vehicle on any highway at a speed or in a manner so as to endanger the life, limb, or property of any person. In addition to the general definition of reckless driving, the law sets forth certain specific driving activity which is considered reckless. Those activities include racing, driving more than 20 miles per hour over the posted speed limit, or in excess of 80 miles per hour, driving when the vehicle is loaded such that the driver's view is obstructed or too many people are in the front seat, and even failing to properly give a signal for turning, slowing or stopping.

12.   How does the Department of Motor Vehicles assign demerit points to traffic offenses?

Almost all traffic offenses carry demerit points which are assessed by the Department of Motor Vehicles. Certain nonmoving offenses are excluded from the demerit system. The amount of points which a conviction carries depends upon the nature of the offense. The system assigns either 3, 4 or 6 points to each conviction. The Department of Motor Vehicles tracks the number of points an individual receives. Based upon the number of points and the amount of time in which the person accumulates the points, the DMV can take administrative action against the person licensed ranging from an advisory letter to suspension of the privilege to drive. Insurance companies also closely review each person's driving record when determining the premium to charge for insurance. Even if you are not in jeopardy of administrative difficulties with DMV each traffic conviction will likely have some impact upon you.