Ned Michie
​Attorney at law

Charged with a DUI?

Free Consultation and Reasonable Rates
Office in Charlottesville, Virginia​
​
​​(434) 296-1198

Call

Personal Attention to Every Case
​
​Representing Central Virginia Clients 
​for Over 30 Years

Experience Matters

I've been honored to be chosen by multiple lawyers and law professors for
​legal representation of themselves or their family members on criminal and traffic cases. 
​Let me put my experience to work for you.

DWI / DUI / DUI Drugs 

Driving While Intoxicated / Driving Under the Influence  / Driving Under the Influence of Drugs -
​These are all effectively the same criminal offense in Virginia.

These are ​Highly Technical Cases​​ with significant penalties (see below)

​   Even if you believe you are guilty, the prosecution may not be able to prove it
or, in some cases, might be willing to bargain. 

The outcome of all criminal cases
can be greatly affected by:

Whether You Decide to Hire an Attorney
&
20 COMMON ISSUES and DECISIONS 
(follow the link to learn more)

​     Having an Experienced Lawyer ​Gives You the Best Chance of
Getting the Best Result​ -- (for example, a finding of Not Guilty, a reduced charge, "just" a ​better-than-"normal" penalty, or even a "normal" penalty when worse-than-normal was a real possibility)

As with all 1st Class Misdemeanors,
the judge is empowered, on  any and all 1st or 2nd offense ​DUI/DWI/DUID cases,to give the defendant:

1.      Jail time for up to one year

and/or

2.    Fine of up to $2,500

  It would be highly unusual for the court to give a defendant the maximums,​but "bad facts" could push the judge toward ​a much worse than "normal" penalty.

​​Alcohol affects different people in different ways.  

One way it affects everyone is that
it clouds your judgment, including decision-making as to whether having another drink is a good idea and
​deciding if you are safe to drive.

​If you are going to drive after drinking at all:
1.   know your personal drink limit;
(You can find helpful BAC calculator phone Apps, for an estimate, but also know the number of drinks (of different types) that affects you at all personally)
2.  Count your drinks; and
3.  Stick to your # limit

Real Examples, from My Practice, of ​How People Came in Contact with Police and Got a DUI Charge:

• Serious traffic violations -- driving the wrong way on a road, racing, crossing the double yellow line with virtually the entire car width, driving recklessly and nearly having an accident, eluding police after a minor infraction, getting caught after leaving the scene of minor accident, and being in an accident. (I even had a couple of clients charged with DUIs where the other, non-DUI driver, was completely at fault in causing the accident, but the accident still brought my clients to the attention of the police.)
• Minor traffic violations -- speeding; not coming to a full stop at stop signs; failing to dim bright headlights; failure to signal a turn; failure to change lanes to move away from an officer who was on the side of the road, having pulled over another vehicle; running the back tire up on a curb while making a sharp turn on a narrow city street; repeatedly putting tires on the other side of the double yellow line and/or the white side lines; turning right on a red light where not allowed; and spinning wheels when taking off from a stop.
• Equipment issues -- a tail light out, a head light out, a brake light out, license tag light out, failing to turn on headlights, inspection sticker out of date, license plate stickers out of date, license plate not matching vehicle registration, license plate cover too dark, cracked windshield, broken tail light cover, overly loud exhaust, overly tinted windows, large decorative hanger from rearview mirror, and flat tire on side of the road. At least two clients were found driving down the road on entirely flat tires.
• Informant/citizen calls -- people reporting suspected DUI drivers (sometimes the people calling in the suspect have known the suspect and wanted to cause the suspect trouble). In one case I had, a vehicle was stopped because it generally matched a description by witnesses of a different car involved in recent crime in the area.  In a recent case, a client went into his own bank and a teller called the police because she smelled alcohol on his breath.  In another recent case a citizen found my client sleeping behind wheel at stop light (having taken ambien).
• Police roadblock-- stopping cars to check for DUI and/or other violations. It doesn't matter how perfectly you are driving -- you will be stopped.  In recent case, a citizen found my client sleeping behind the wheel at stop light but she was not drunk, instead she had accidentally taken an ambien rather than a different medication she was taking (yes still charged with a DUI).
• Driver sleeping/passed out -- on the side of the road -- and a few clients literally were asleep/passed out in the road at stop lights and stop signs.
• Observations raising suspicion of officers despite no violation of law -- weaving but staying in the correct lane, driving "too slowly," and driving in the parking lot of a closed business or an area not generally open to the public. One client drove into a parking lot got out of her car and tripped on the curb while walking into the store. The people helping the client get up then smelled alcohol and called the police. In another case, an officer was stopping and directing traffic around an accident scene; the officer spoke with my client to give him directions about the accident situation and smelled alcohol on my client's breath.
• Client called the police -- in a recent case, a client was in his own apartment complex's private lot when another car in the lot backed into him, and my client called the police. The other driver ended up with no charges because there was no real damage to the car, but my client was charged with DUI.

DWI / DUI / DUID -- Penalties in Virginia

As noted above 1st and 2nd Offense DUI / DWI / DUID charges in Virginia are 1st Class misdemeanors. ​If convicted with a low BAC in a non-accident case, it is common locally to get a 30 day jail sentence but with all the jail time suspended. There are, however, other parts to the penalty (see below) and facts that are worse than normal can and ​do lead to worse than normal results

Mandatory penalties - See Va. Code § 18.2-270 and Va. Code § 18.2-271.
    The judge must dole out certain penalties if you are convicted, even if the judge thinks you are an otherwise great person and an upstanding citizen.  These mandatory penalties depend on the facts established in your case; the judge is empowered to give a defendant harsher penalties than the mandatory minimums.

First Offense DUI Conviction:

Jail
   The judge MUST give the defendant at least five days to serve in jail if the proven BAC
is .15% to .20% on a conviction.
    If the BAC is proven to be more than .20%, the judge MUST give at least 10 days of jail time to serve on a conviction.

Loss of Driver's License
    The judge MUST, on any first offense, take away driving privileges for a full year; however, the judge has discretion to give the defendant a restricted license for some or all of the time.  It is common for judges to grant a restricted license to 1st time defendants, but the judge is not required to do so.

Ignition Interlock
    The defendant on any first offense cannot drive any personal vehicle without an ignition interlock device on the car for at least six months. The device is designed to prevent the car from starting if the defendant has had virtually anything alcoholic at all to drink, and it will record any positive test results for alcohol. The defendant should expect enhanced punishments with a positive test result.  Recently the legislature changed the law and now permits the judge in certain low BAC cases to grant a person unrestricted driving privileges if the convicted defendant keeps the ignition interlock in his/her car the entire year.

VASAP 
     The defendant must attend and pay for the Virginia Alcohol Safety Action Program, which is generally set up to last 10 weeks and meets once a week for two hours per class. For more details,  see the VASAP website.

Fine 
    The judge MUST impose at least a $250 fine, and there are also "court costs" (fees imposed by the clerk - on a first or second offense in General District Court you are likely to owe $500 - $600 dollars to the court).
 
Penalty Enhancements  
    The judge must enhance the penalties if the defendant had a child under the age of 18 in the car at the time of the offense.


Second Offense within 10 years
      This offense is still a First Class Misdemeanor, but not surprisingly, the mandatory penalties are worse than a first offense in every way.

     The penalties are stiffer for someone whose prior DUI conviction occurred fewer than five years previously, than are the penalties for a defendant whose prior offense was 5 to 10 years before the current offense.


Third Offense within 10 years
         If charged and proven, a third offense within 10 years is a Class 6 Felony and is handled in the higher court (Circuit Court). The mandatory penalties are of course significantly worse than with a second offense, and they get worse still with recent prior offenses or if a person gets a fourth offense. It is also common for courts to punish well beyond the already tough mandatory minimum penalties.

Virginia's DWI / DUI / DUID Primary Statute

In Virginia, a defendant can be found guilty if he or she is:

1.     over the specified alcohol/drug limits

                     or

2.     "under the influence" (a.k.a. "intoxicated")

Va. Code § 18.2-266. Driving motor vehicle, engine, etc., while intoxicated. 

​  "It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article, (ii) while such person is under the influence of alcohol, (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, (iv) while such person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, or (v) while such person has a blood concentration of any of the following substances at a level that is equal to or greater than: (a) 0.02 milligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c) 0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood. A charge alleging a violation of this section shall support a conviction under clauses (i), (ii), (iii), (iv), or (v).

For the purposes of this article, the term "motor vehicle" includes mopeds, while operated on the public highways of this Commonwealth."

Code 1950, § 18.1-54; 1960, c. 358; 1975, cc. 14, 15; 1977, c. 637; 1984, c. 666; 1986, c. 635; 1987, c. 661; 1992, c. 830; 1994, cc. 359, 363; 1996, c. 439; 2005, cc. 616, 845.


Underage drivers (under 21 yrs old) can be found guilty of illegal drinking and driving if they even have a BAC of .02% (but less than .08).  Va. Code § 18.2-266.1    


Commercial vehicle drivers can also be found guilty of a lesser DUI-type offense, even with a BAC below .08%.  ​Va. Code § 46.2-341.24    
   

The Definition of intoxication in Virginia is as follows:

"[A] condition in which a person has drunk enough alcoholic beverages to observably affect his manner, disposition, speech, muscular movement, general appearance or behavior."
Va. Code § 4.1-100  

    So, even a person below the "legal limit" can be found guilty of DUI if there is a decision to prosecute and enough proof that the defendant was "under the influence."

    Likewise, if the BAC test result is ruled inadmissible in a particular case,
the prosecution can still seek to prove the DUI based on other evidence of intoxication.
It's like the public service announcement say: "Buzzed driving is drunk driving" -- if proven.

Driving or Operating a Vehicle

​In Virginia, a defendant can be found guilty if he or she is:

1.    Driving a Motor Vehicle
                or
2.     "Operating" a Motor Vehicle

Va. Code § 46.2-100  defines an "operator" or "driver" as:

"every person who either (i) drives or is in actual physical control of a motor vehicle on a highway
or (ii) is exercising control over or steering a vehicle being towed by a motor vehicle."

But in the case of Enriquez v. Commonwealth, 283 Va. 511, 517, 722 S.E.2d 252, ___ (2012), the Virginia Supreme Court firmly established ". . .the rule that when an intoxicated person is seated behind the steering wheel of a motor vehicle on a public highway and the key is in the ignition switch, he is in actual physical control of the vehicle and, therefore, is guilty of operating the vehicle while under the influence of alcohol within the meaning of Code § 18.2-266."

The Court decided that it does not matter if the key in the switch is in the "on" or "off" position.  

It will be interesting to see how the court rules when it comes to a person behind the wheel with the car engine turned off but with a "keyless" fob close enough for a driver behind the wheel to start the car at the push of a button. The courts have, on multiple occasions, decided that people are "operating a motor vehicle" even when they are fully passed out behind the wheel. 

Public Highways versus Private Roads and Areas

In Virginia, a defendant CAN be convicted of DUI on:

1.   Public Highways
         or
2.   Private Roads and Property

      There are, however, some differences -- the most important of which is that if a suspect is NOT on a "Public Highway," he or she cannot be forced to do an evidentiary breath/blood test or suffer the consequences of a refusal to do so. Nevertheless, as mentioned previously, a person can be convicted of
DUI / DWI / DUID even without a test result in evidence.

     Moreover, the courts have decided -- based on the facts of individual cases -- that many private roads and even parking areas are "public highways." A key to the determination is the degree to which the private road or area is open for use to the general public, but many other factors are considered.

Refusal to Take Breath or Blood Test

    It is a separate offense for a DWI / DUI / DUID suspect to refuse to take a breath or blood test when required to do so.

When this happens, the defendant is now charged with BOTH DUI and Refusal.

At its mildest, a Refusal conviction carries a one-year complete loss of license
(with no restricted license allowed).
​
If a person has prior refusals or DUIs, then the penalties get worse and can include jail time.

The refusal penalties will be in addition to DUI penalties, if the Defendant is convicted of both.
​See Va. Code § 18.2-268.3. Refusal of tests; penalties; procedures

The Virginia Implied Consent law (Va. Code § 18.2-268.2) is what creates the right of an officer to charge a defendant with "Refusal."   That law states in part as follows:

"A. Any person, whether licensed by Virginia or not, who operates a motor vehicle upon a highway, as defined in § 46.2-100, in the Commonwealth shall be deemed thereby, as a condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, if he is arrested for violation of § 18.2-266, 18.2-266.1, or subsection B of § 18.2-272 or of a similar ordinance within three hours of the alleged offense.

B. Any person so arrested for a violation of clause (i) or (ii) of § 18.2-266 or both, § 18.2-266.1 or subsection B of § 18.2-272 or of a similar ordinance shall submit to a breath test. If the breath test is unavailable or the person is physically unable to submit to the breath test, a blood test shall be given. The accused shall, prior to administration of the test, be advised by the person administering the test that he has the right to observe the process of analysis and to see the blood-alcohol reading on the equipment used to perform the breath test. If the equipment automatically produces a written printout of the breath test result, the printout, or a copy, shall be given to the accused."
​. . . (emphasis added)

Bottom Line -- DWI / DUI / DUID are Complicated Cases

     The primary set of DWI laws can be found starting at  ​Va. Code § 18.2-266, but there are almost 30 additional statutes that follow it and can come into play, depending on the facts of the case.

    In addition to the usual  20 Common Issues and Decisions 
that affect a criminal case like this, there are additional complications such as those described above. 

Other potential issues include:

• Is there proof that the officer arrested the suspect within the required time limit for a breath/blood test to be admissible?

​

• In an accident case, can the prosecution establish that the defendant was driving and did not drink after the accident (and cessation of "operating" the vehicle)?

 

• Was the breath or blood test performed correctly, by correctly qualified individuals, with properly functioning equipment? For example, in a breath test case, an experienced attorney can get from the state lab a set of paperwork regarding the testing machine, the operator, and the defendant's test results (click link) and will know if there is a problem with the testing.​

​

• Medical conditions the defendant has that may affect test results

 

• The science behind field sobriety testing and factors that affect their accuracy 

                   (walking a line, touching your nose, counting backwards . . .)
​

• The science behind breath and blood testing

Of Course the Best Advice Regarding DUI -- DON'T DO IT!
   The chances of getting caught are significant, and -- more importantly -- the danger to you and others is high.   Nevertheless, we all make mistakes and if you have, then please call me to discuss your individual facts.