Author: john

The Department of Defense sees thousands of cases involving alleged wrongdoing by service members annually. As with civilians, one of the most common ways for individuals in military service to run afoul of the law is by committing a moving violation. However, service members may face different kinds of consequences and legal procedures for these violations compared to their civilian counterparts. Even in a general court martial, military service members may have a viable possibility of reducing or even eliminating penalties for serious moving violations. Those chances depend to some extent on the presence of mitigating factors, and the ability of the accused, or their legal representative if the service member accused chooses to exercise their legal right to counsel, to present those mitigating factors persuasively. Military personnel accused of moving violations in Virginia may be able to work alongside traffic defense attorneys to explore potential defense strategies. To learn more about these possibilities, consider getting in touch with Driving Defense Law at (757) 929-0335. 

What Is a Moving Violation in the Military?

A moving violation may involve virtually any vehicle imaginable – including not only cars but also tanks, planes, boats, and so on. According to CFR § 634.32, traffic violations on Department of Defense Installations are generally handled by the relevant United States Magistrate. The specific magistrate depends on the type of installation, and which branch of the military operates the base. However, there are situations in which magistrates do not handle traffic offenses:

• The violator was driving a government vehicle
• There is no magistrate available
• The magistrate does not have jurisdiction
• The Federal Government does not have jurisdiction
• Mission requirements take precedence

Installation commanders may create their own procedures for dealing with minor traffic infractions. In addition, and for more severe traffic violations, such as misdemeanor reckless driving, the violator may experience administrative or judicial action under the Uniform Code of Military Justice. The commanders and the appropriate authorities may also direct the violator to certain substance abuse programs, if appropriate, instead of facing more traditional punishments. 

DD Form 1408 Vs. DD Form 1805

Defense Department Form 1408 is a common type of written citation that active-duty members, civilians, and contractors receive for moving violations on military installations. An individual might receive a DD Form 1408 for rolling through a stop sign on a military base, for example. According to the National Archives, DD Form 1805 instead refers violators of State-specific traffic laws on military installations to US magistrates. In other words, it is a way of charging violators with Virginia traffic crimes – even if they occurred on federal installation property. 

Generally speaking, DD Form 1805 is less common compared to Form 1408 – and it is usually reserved for more serious traffic offenses such as Driving Under the Influence, excessive speeding, reckless driving, and so on. However, there is often variation between bases in regard to when and how these different citations are issued by military police. The Norfolk Naval Shipyard states that DD Form 1805 leads to a criminal case in the appropriate United States District Court. This means that court appearance is mandatory, and violators in Virginia experience due process in court – providing the opportunity to work alongside Driving Defense Law to execute various defense strategies in court. 

Mitigating Factors for Moving Violations in the Military

The optimal defense strategy will depend on the specific charges and on the circumstances of the alleged incident. Many defense strategies for military personnel facing allegations of moving violations may be based on the presence (and presentation) of mitigating factors. 

Guilty Pleas

Perhaps the most obvious mitigating factor for a moving violation in the military is a guilty plea. The Joint Service Committee on Military Justice specifically states that a guilty plea is one of the many factors that affect sentencing considerations in a court-martial. In other words, violators who admit wrongdoing may experience lighter consequences. 

Few Prior Convictions

According to the United States Court of Appeals for the Armed Forces (USCAAF), mitigating factors in a court-martial may include the lack of prior convictions. If a service member has a clean disciplinary record, they are less likely to suffer serious consequences. 

Evidence of Rehabilitative Potential

If there is evidence that the issue at hand may improve with rehabilitation, this may also serve as a mitigating factor in courts-martial. The most obvious relevant moving violation in this context is driving under the influence (DUI), as a mitigating factor could be the willingness of the violator to engage in substance abuse treatment. 

Rebuttals

In addition, the defense has the ability to rebut any evidence presented by the prosecution in a court-martial. This might include witness testimony, blood-alcohol level results, and a range of other evidence. If the defense can perform an effective rebuttal of the prosecution’s arguments, this may lead to mitigation or even elimination of consequences. 

Prior Nonjudicial Punishment

If the violator has already faced nonjudicial punishment from their commanders, this may help mitigate consequences in courts-martial. The defense can point out that the violator has already faced serious punishments for their alleged offenses, and this may lessen further penalties. 

Prior Acts of Bravery, Fidelity, and Temperance

Last but not least, the military record of the accused may lead to mitigating factors. If the violator has a clear record of bravery, fidelity, temperance, and other characteristics befitting of an honorable soldier, this exemplary record may impact the sentence determined. 

The Potential Consequences of a Moving Violation in the Military

Citations such as DD Form 1408 may result in the loss of driving privileges due to a point system. Those who accumulate 12 or more points within a year or 18 points within two years will lose their on-base driving privileges.

Appropriate Action

The commander and first sergeant of the violator also receive copies of Form DD 1408. These individuals are then responsible for appropriate action. Referral for trial is the most obvious appropriate action, but for some violations, particularly minor traffic infractions by personnel with otherwise exemplary service records, various actions other than court-martial may be considered appropriate. 

According to the Norfolk Naval Shipyard in Virginia, appropriate action may include:

• Verbal counseling
• Letters of counseling
• Reprimand
• Article 15

Under the Uniform Code of Military Justice, article 15 allows commanders to punish members of any branch of the military for minor infractions without formally convening a court-martial. 

Demotion

According to the Department of Justice, courts-martial may also lead to reductions in pay or reductions in rank. This is another way of saying demotion. If the service member has a security clearance, they may also lose their clearance, depending on the type of violation. 

Dishonorable Discharge

Another potential consequence is a dishonorable discharge. Not only does this outcome have the potential to end military careers, but it can also tarnish reputations. 

Consider Speaking With a Virginia Traffic Attorney Today

Mitigating factors are worth exploring further for those accused of moving violations in the military. However, the range of mitigating factors applicable will vary according to the individual service member and the circumstances of the case. Internet research can only provide a basic overview of potential defense strategies, and defendants may seek more targeted guidance alongside experienced traffic law attorneys in Virginia. Consider speaking with one of the attorneys with Driving Defense Law and call (757) 929-0335 today to discuss mitigating factors for moving violations in the military in more detail. 

Many people struggle to get their lives back on track after a DUI conviction. Unfortunately, these offenses can stay on your criminal record for a long time. Individuals convicted of DUI may also have to worry about paying higher insurance premiums and attending alcohol diversion classes. While a conviction might affect your present situation, there are ways to move toward a brighter future. Ro learn more about the consequences of a DUI conviction, consider scheduling a consultation with Driving Defense Law by calling (757) 929-0335.

Steps To Take After a DUI Conviction

Driving under the influence of a controlled substance is a serious offense. If you have been convicted, you are already aware of some of the consequences of having a DUI conviction on your record. While many people may feel a sense of hopelessness after their DUI sentencing, there are a few ways to move forward. Here are five steps to take after a conviction:

 Accept Full Responsibility

While it can be tempting to shift the blame for a conviction to others, a driver who receives a DUI conviction often benefits from reflecting on the circumstances that led up to their arrest and conviction. Some individuals habitually abuse alcohol to cope with life issues, while others have developed a bad habit of engaging in reckless behavior. 

Whatever the reason, now is the time to understand the consequences of your actions and acknowledge the harm caused. Individuals convicted of DUI can use this time to take responsibility by owning up to the mistake without making excuses and making changes in their day to day habits to prevent any similar circumstances from arising in the future. Even an individual who got a conviction for their first incident may wish to evaluate the steps that led to a dangerous out of character decision.

 Fulfill All Legal Obligations

After a DUI conviction, a driver will need to meet any legal obligations imposed by the court. Typical examples include:

• Attending all court-ordered appearances
• Complying with the requirements
• Completing alcohol education programs and counseling
• Paying fines
• Performing community service

Failing to meet these requirements could mean more legal issues in the future. While no one can change past mistakes, it is important to commit to fulfilling the obligations those mistakes have incurred.

Get Professional Advice

Often, conviction occurs because there is an overwhelming amount of evidence against you. While this might not be the best outcome, individuals who were represented by an attorney in their DUI case may still want to consult with their DUI lawyer to develop a plan for the future. These professionals have the resources to help you move past the conviction. They may be able to help you get into a program that can fulfill some of the obligations imposed as part of the DUI sentence, such as a community service program or alcohol education classes.

 Focus on Rehabilitation

Mistakes happen. After a conviction, you may want to self-reflect on your past behaviors and actions. If you have an issue with alcohol or substance abuse, make sure to join programs that can help you manage these problems. On the other hand, if drunk driving was the result of a family or life dilemma, then you may want to visit a mental health professional. Whether you join an individual or group counseling session, these outlets can help you find healthier ways to cope with life’s stresses. 

Look Towards the Future

Many people find it difficult to move past a conviction. They may feel that the system wronged them. However, holding on to anger about the situation is not healthy. After a conviction, the best way to move forward is typically by setting clear goals and adopting healthier habits. Convicted drivers may benefit from taking this time to develop plans for their personal and professional futures. If the DUI conviction came as the culmination of a pattern of risky behaviors, a supportive network of friends and family who understand one’s commitment to change may prove beneficial in the recovery process

Following these steps can help you get your life back on track after a DUI conviction. If you would like to learn more about other steps to follow, contact the legal team at Driving Defense Law. 

What Is the Best Outcome for a DUI?

Since the 1980s, drunk driving laws have been in place to prevent serious, and often deadly accidents, per the National Highway and Traffic Safety Administration. For drivers, the “best” outcome in the immediate sense is usually thought to be a complete dismissal of the charges. While dismissals do happen, they are relatively rare, and generally require the court to find a lack of evidence to support the prosecution’s case. Because prosecutors tend not to go to trial for cases they do not think they can win, this is not a common scenario. 

Plea Bargains in DUI Cases

Much more often, drivers facing DUI charges will have the opportunity to negotiate the terms of a “plea bargain.” A plea bargain is an arrangement in which the defendant in a case pleads guilty to a lesser violation than the one with which they were originally charged. For DUIs, this may mean that the defendant will agree to specific terms, such as enrolling in an adult education program or performing community service. With that, the person will still have a criminal charge on their record, but they may be able to avoid the most severe penalties they might face if convicted for the original charges. 

Repeat DUI Offenders

However, these outcomes usually only occur for first-time offenders. The court tends to be more lenient with sentencing. After the first conviction, the penalties and consequences increase. In turn, that can lead to higher fines, longer jail sentences, and a revocation of driving privileges. 

How Do You Forgive Yourself and Get Over the Shame of a DUI?

Many people convicted of DUI feel a deep sense of shame, confronted with a criminal record that documents a time when they put others at risk. While self-reflection is important, so is self-compassion and developing a plan for moving forward, not just on a driving record but mentally and emotionally. Overcoming shame, ironically, often starts with admitting and accepting responsibility for the mistake. Acknowledging the error opens the possibility of self-forgiveness, which for many is most meaningful when accompanied by a plan for ensuring they will not commit the same mistake again. 

Those who experience problems moving forward may wish to consider speaking with a counselor or therapist. A trained professional may be able to assist with identifying the underlying issues that are causing this behavior. Forgiveness and acceptance are gradual processes, but small steps add up to a deeper journey.

Can a DUI Cause PTSD?

A DUI incident does not inevitably lead to post-traumatic stress disorder (PTSD). However, the emotional and psychological impact of an arrest can cause stress and emotional trauma in some individuals, according to the Mayo Clinic. PTSD is commonly associated with traumatic, life-threatening situations. Some aspects of a DUI arrest or accident, such as the fear, anxiety, or shame associated with the event, may contribute to emotional distress for some people.

PTSD can be influenced by an individual’s resilience, coping mechanisms, and pre-existing mental health conditions. If someone is experiencing distress, anxiety, or symptoms resembling PTSD after a DUI incident, they may want to work with a mental health professional. A thorough evaluation can help individuals suffering from PTSD to find the right support and make a strong recovery. 

Reach Out to a Virginia DUI Attorney Today

After a DUI conviction, it can be difficult to put your life back on track. However, with these steps, you can look forward to a healthier and brighter future. If you have questions about your DUI case, please consider scheduling a consultation with Driving Defense Law by calling (757) 929-0335.

In 2019, the state of Virginia saw 236 alcohol-impaired driving fatalities, according to research provided by Responsibility.org. That same year, 20,402 people were arrested for driving under the influence (DUI) in Virginia. Because of the frequency of DUIs in the state of Virgitia, law enforcement throughout the state often set up sobriety checkpoints in an attempt to identify and stop these drivers before they can endanger others. Unfortunately, most people are not aware of their legal rights when stopped at a sobriety checkpoint and may find themselves in legal trouble even if they are not under the influence of alcohol. If you have questions about your legal rights when stopped at a sobriety checkpoint, an experienced traffic attorney with Driving Defense Law may be able to assist you. Call (757) 929-0335 to discuss your legal rights. 

Are Sobriety Checkpoints Constitutional?

Many Americans feel that sobriety checkpoints violate their Fourth Amendment rights, and should be illegal. In fact, sobriety checkpoints have been challenged in the United States Supreme Court. As a result, in the case of Michigan Dept. of State Police v. Sitz, the Supreme Court determined that sobriety checkpoints meet the constitutional standard for a “reasonable search and seizure.”  

While these sobriety checkpoints are legal, they must also be established according to specific and detailed procedures. If a police officer fails to follow the procedure of a sobriety checkpoint, the validity of the checkpoint may be challenged by anyone that receives a DUI as a result. To be a valid and legal sobriety checkpoint, a checkpoint must have the following: 

• Be set up in safe conditions
• Show proper use of discretion
• Have a roadblock plan designed, implemented, and supervised by senior officers
• Have adequately trained officers staffing it
• Be an effective checkpoint
• Have a reasonable detention length

How Do You Avoid a DUI Checkpoint?

Even when they are not impaired by alcohol, sobriety checkpoints may make many drivers uncomfortable and nervous. In some cases, they may worry that symptoms of a medical condition, illness or physical limitations may be misinterpreted as signs of being alcohol-impaired. Under the law, there are instances where it is legal to avoid a sobriety checkpoint.

If there is another road before the checkpoint, drivers are free to make a legal turn onto that other road to go around the checkpoint. Drivers may also turn into a parking lot and make a legal turn back onto the road going in the opposite direction of the checkpoint. Additionally, all DUI checkpoints must be announced in advance, which means drivers can plan a route that allows them to avoid the checkpoint entirely. 

What Happens If You Turn Around at a Sobriety Checkpoint? 

While it is legal to avoid a sobriety checkpoint, it is important to do so carefully and only by taking legal actions to do so. Turning down another road before the checkpoint is an appropriate way to avoid a checkpoint. If drivers make a U-turn, speed away, or otherwise draw attention to themselves in an attempt to avoid a sobriety checkpoint, they will likely be pulled over. If the driver has committed a traffic violation in their attempt to turn around and avoid the checkpoint, they may be ticketed for the traffic violation, even if they are not driving under the influence. If you have received a ticket as a result of attempting to avoid a DUI checkpoint, an experienced  Driving Defense Law traffic attorney may be able to assist you. 

Do I Have To Show My License at a DUI Checkpoint?

Because a sobriety checkpoint is a legal traffic stop, it is also legal for a police officer to request a driver produce their driver’s license, proof of insurance, and vehicle registration. Drivers must produce these documents upon that request. 

While this is true throughout the state of Virginia, it is important to note that Virginia Beach has made it a Class 1 misdemeanor for anyone to refuse to identify themselves or to provide false information to a law enforcement officer through Virginia Beach Ordinance § 23-7.1.

Do I Have To Participate in any Field Sobriety Tests or Breath Tests If Asked at a Sobriety Checkpoint?

While drivers do have to produce identification if asked by police officers, that is all that is legally required of them at a sobriety checkpoint. Drivers do not have to answer questions if they do not wish to do so. Drivers cannot be required to submit to a blood alcohol content (BAC) test or field sobriety test unless the police officer has reason to believe the driver is intoxicated. If there are no signs of impairment, it is illegal for law enforcement to make any driver submit to any type of testing. 

Even if there are indications of impairment, it is legal to refuse both a breath test and field sobriety tests if requested in the state of Virginia. These tests are used to create reasonable suspicion to arrest a driver for DUI. If a driver is arrested for DUI, a breath test is mandatory at that time and refusal may result in their license being suspended for a minimum of one year, per Virginia Code § 18.2-268.3.

Have You Been Charged With DUI as a Result of a DUI Checkpoint?

While sobriety checkpoints are generally legal, they are not infallible. Because every sobriety checkpoint is operated by humans who can make mistakes, it is possible to be charged with DUI when you are not impaired. Additionally, if the sobriety checkpoint is not properly set up or the police officer does not handle the arrest properly, the checkpoint and resulting DUI charge may be challenged. If you have been charged with DUI as a result of a sobriety checkpoint, our compassionate and experienced Virginia traffic attorneys with Driving Defense Law may be able to assist you. Call (757) 929-0335 to schedule a consultation to discuss your case and ensure your legal rights remain protected. 

For most people facing DUI charges in Virginia, a top concern is finding a strong legal defense to the charges. Some people in this difficult situation may wonder whether entrapment could be a valid defense. DUI entrapment is exceedingly rare, and arguing entrapment is highly unlikely to result in a favorable outcome. Fortunately, there are many other valid defenses to DUI charges. At Driving Defense Law, our Virginia DUI lawyers may be able to evaluate your case and determine the best way to handle the charges based on the unique circumstances of the case. Contact us today at (757) 929-0335 to learn more in a free consultation.

What Is Entrapment?

According to the United States Department of Justice (DOJ), entrapment is a legal defense that applies when a government official, such as a police officer, induces someone to commit a crime when that person otherwise would not have likely committed the crime. There is a common misconception that a police officer can entrap a suspect by simply giving them a chance to commit a crime. In reality, this is not enough for entrapment to be a valid legal defense. In general, to successfully argue entrapment, the defendant must show evidence that police misconduct, such as threats, fraud, or harassment, induced them to commit a crime.

If a defendant––or their lawyer, if the accused is working with professional legal counsel––decides to use the entrapment defense, courts may use either of two standards, objective or subjective, to determine whether the defense is valid. The standards used vary by state, and Virginia uses the objective standard in entrapment cases. Florida State University Law Review describes the subjective standard as focusing less on the government’s involvement and more on the defendant’s willingness to engage in the criminal activity. In the objective standard, the intent or predisposition of the defendant is generally not the primary consideration when determining entrapment. Rather, the emphasis is on the behavior of law enforcement and whether it was likely to lead a reasonable person to commit the crime.

Is Entrapment a Common DUI Defense?

Entrapment is not a common defense in DUI cases. Entrapment entails law enforcement inducing someone to commit a crime they would not have committed otherwise. With DUI charges, the focus is typically on whether the individual was driving under the influence, rather than whether they were coerced or manipulated into doing so by law enforcement. For entrapment to apply in a DUI case, the defendant, and their attorney, if applicable, would need to prove that the defendant would not have consumed alcohol and driven, if not for misconduct by law enforcement personnel.

Some people who are charged with DUI may suspect entrapment if a police officer was waiting outside of a bar to pull people over on suspicion of DUI. However, this scenario is not typically considered an example of entrapment. In most DUI cases, the focus would instead be on whether the arresting officer had probable cause to pull the driver over and administer a breathalyzer or field sobriety tests. 

What Are Some Valid Defenses to DUI Charges?

Although entrapment is very rarely a valid defense to DUI charges, individuals charged with DUI should understand the other available defenses. You may be able to learn more about DUI entrapment and defenses to DUI charges by contacting the Virginia DUI defense lawyers at Driving Defense Law.

Challenging Breathalyzer Test Accuracy or Administration

Virginia police officers commonly administer breathalyzer tests when they suspect that a driver is under the influence of alcohol or drugs. According to the Virginia Department of Motor Vehicles, a test result of .08% or higher is enough for a DUI charge. However, some cases may involve issues with the accuracy or administration of breathalyzer tests. Issues with the administration or accuracy of the test, such as miscalibration or mishandled samples, can cast doubt on the credibility of the test and may be used as a legal defense.

Challenging the Accuracy or Administration of a Field Sobriety Test

Field sobriety tests are often imperfect, and challenging the validity of these tests is a common defense strategy in DUI cases. Such challenges typically involve scrutinizing the arresting officer’s conduct during the test. Police officers are required to adhere to standardized procedures and to follow proper administration standards. Deviations from these protocols or failure to accurately communicate instructions can be used as defenses to DUI charges. 

Contesting the Legality of the Traffic Stop

In certain cases, DUI charges could potentially be dismissed based on issues with the traffic stop, particularly a lack of probable cause. The Fourth Amendment protects individuals from unreasonable searches and seizures, and requires police officers to have a valid reason to initiate a traffic stop. 

A DUI defense lawyer may challenge the legality of a stop by casting doubt on whether the officer had reasonable suspicion or probable cause to pull the driver over. Common examples of probable cause may include observable erratic driving or traffic violations. If there is insufficient evidence of probable cause, the stop could be deemed unlawful, and any evidence obtained during the stop could potentially be considered inadmissible in court.

What Should You Do After a DUI in Virginia?

After a DUI arrest, an individual’s actions can significantly impact the outcome of their case. Document all details related to the arrest, including the location, reason, and time of the stop. Note whether the arresting officer read your Miranda rights, and record other information related to the interaction with the arresting officer, including any unusual details. A lawyer, if the individual chooses to hire one, could potentially use this information to build a strong defense to the charges.

Generally, it is strongly recommended that anyone arrested for DUI speak with an experienced Virginia DUI defense attorney as soon as possible. A lawyer with experience in these cases may be able to work towards securing the best possible outcome for the case, such as dropped charges, reduced charges, or a reduced sentence, depending on the circumstances.

Discuss Your DUI Case With a Virginia Traffic Lawyer

DUI entrapment does not happen often and is typically not a valid legal defense. However, other legal defenses could potentially apply to your DUI case. If you are facing a recent DUI charge in Virginia, the experienced team of Virginia DUI defense lawyers at Driving Defense Law is ready to help. They may be able to thoroughly review your case, craft a defense based on the facts, and guide you through each step of the legal process. Contact their office today at (757) 929-0335 to learn more about fighting DUI charges in Virginia.

Virginia residents enjoying a social occasion may feel tempted to drink a small amount of alcohol before driving home from the event, thinking that their limited consumption is unlikely to do any harm. Before they realize their coordination and reflexes may be impaired, these motorists may find themselves in an unexpected encounter with Virginia law enforcement, answering questions and being asked to perform field sobriety tests. Many drivers are unaware of how little alcohol it takes to result in significant impairment, and as a result may end up facing allegations of driving while intoxicated (DWI) despite consuming only a small amount of alcohol. Can a motorist face aDWI charge while under the legal limit? Perhaps the most effective way to answer this question is to speak to an experienced Virginia traffic attorney with Driving Defense Law. Consider calling (757) 929-0335 for a free consultation to discuss your legal options. 

What Is a DWI in Virginia?

In Virginia, as in most other states, DWI means driving while intoxicated. This is essentially the same as driving under the influence (DUI) or driving while under the influence of marijuana, drugs, or other intoxicants (DUID). The main difference is that while a DUI or DUID charge can apply to driving under the influence of alcohol or drugs, a DWI charge is related to alcohol. Specifically, DWI charges apply when the driver has a blood alcohol content (BAC) of 0.08% or higher. 

While the definition of “intoxicated” is usually based on BAC, Virginia residents and visitors may be surprised to discover that the definition of “driving” varies from state to state. The Code of Virginia actually makes it illegal, under § 18.2-266, to drive “or operate” a motor vehicle while intoxicated. The Supreme Court of Virginia has generally interpreted the “or operate” language to include any situation in which the person charged has physical control of the vehicle. Therefore, individuals can still be charged with DWI or DUI in Virginia if they are sitting behind the wheel with the key in the ignition, even if they are sleeping or listening to the radio with no intention of moving the vehicle. 

Can a Driver Be Impaired While Under the Legal Limit?

The Virginia Department of Motor Vehicles states that the legal limit for drivers over the age of 21 is 0.08%, and a driver of legal drinking age whose BAC is 0.08% or higher is presumed to be driving under the influence. Drivers under 21 with a BAC of 0.02-0.08% can be convicted with no other evidence, in keeping with the spirit of § 4.1 Va. Stat., which makes it unlawful for individuals under 21 to consume alcohol at all under most circumstances. Generally speaking, a person who is legally permitted to purchase and consume alcohol can remain under the legal limit after drinking a small amount. That being said, even one or two drinks can have the ability to impair a driver. 

A driver struggles to divide their attention between two or more visual stimuli at a BAC of 0.02% or lower, according to a 1999 study in the Journal of Alcohol Research & Health hosted by the National Library of Medicine. When BAC reaches 0.05%, eye movement, visual perception, reaction time, glare resistance, information processing, and various other functions necessary for safe driving can become impaired. If they reach a degree of impairment sufficient to justify probable cause for a traffic stop, a driver can face DWI charges even while under the legal limit. 

How Many Drinks Is .08 for a Woman?

Men and women absorb and metabolize alcohol differently. This sexual difference is attributable to a number of biological factors, with average size featuring among the most prominent. An important implication of this metabolic difference is that women, on average, are likely to experience greater degrees of intoxication-related impairment than men after consuming similar amounts of alcohol.

Women

In addition to having a lower average body mass overall than men, women generally have smaller amounts of water in their systems to dilute the alcohol entering their bodies with each drink. Increasing the sexual disparity, women also typically have lower levels of active alcohol-metabolizing enzyme alcohol dehydrogenase (ADH) in their stomachs. As a result, more of the alcohol women drink reaches their bloodstream, according to the National Institute of Alcohol Abuse and Alcoholism. The combination of these factors means that women generally reach a BAC of 0.08% after at least four drinks in approximately two hours. 

Men

Men have larger livers and, on average, more body mass than women, which lets them absorb and metabolize alcohol with greater ease. As a result, it generally takes men more alcohol to reach the same BAC as a woman enjoying the same number of beverages. Men tend to reach a BAC of 0.08% after at least five drinks within two hours. 

Other Factors That Impact Blood Alcohol Content Level

While body water, enzymes, liver size, and body mass all affect BAC, many other factors also play a role. Some of these factors include: 

• The strength of the drink (two drinks made with half a shot each will have the same impact as one drink with one full shot, for example)
• Drinking pace
• Food consumption (consuming alcohol with food may slow a drink’s absorption into the bloodstream)
• Age
• Proportion of body mass that is fatty tissue
• Genetics

If you have questions about how these factors may affect your DWI case, knowledgeable attorneys with Driving Defense Law may be able to assist you. 

How Can You Be Charged With DWI if Your BAC Is Under the Legal Limit?

A DWI or DUI charge typically begins with a traffic stop. Law enforcement may pull a driver over if they notice possible indications of drinking and driving, such as: 

• Jerky or abrupt stops
• Weaving across lane lines
• Swerving
• Hitting or nearly hitting another vehicle or object
• Drifting
• Turning with a wide radius
• Parking too far from the curb or at an odd angle

After initiating a traffic stop on suspicion of DWI, officers look for other indicators of intoxication. These may include: 

• Slurred speech
• Difficulty getting out of the vehicle
• Difficulty operating the vehicle controls (struggling to put the car in park or pull the key from the ignition, for example)
• Fumbling for their license or registration
• Repeating questions or answers or extremely slow responses
• Unsteady and swaying posture, difficulty maintaining balance, leaning against the vehicle or other objects
• An odor of alcohol emanating from the driver or vehicle

If the officer notices any of these indications, they may administer a breath test. Drivers have the right to refuse a breath test in the field, but an officer who suspects DWI may then place the driver under arrest, activating Virginia’s implied consent laws. In the event that a driver is arrested for DUI, the arresting officer will document the details of the interaction and any signs of impairment the driver displayed during the traffic stop in their official report, which the prosecution may then use in building the DWI case.

What Is the Lowest Level of DWI?

The penalties for a DUI conviction depend, in part, on the accused’s record of prior offenses. First and second offenses are usually misdemeanors, while third and subsequent offenses are felonies. However, a driver can be charged with a felony DWI for a first offense if they seriously injure or kill someone. As long as the prosecution can prove the defendant was impaired, the felony DWI charge may lead to a conviction even if the driver’s BAC was under the legal limit. 

In addition to the consequences listed below, the defendant in a DWI case must attend Alcohol Safety Action Program (ASAP) classes. They may also be subject to the installation of ignition interlock devices on their vehicles, face suspended or revoked licenses, and incur points on their driving records. 

Misdemeanor

First and second offenses are Class 1 misdemeanors. For a first conviction, a driver faces a minimum $250 fine, in addition to which a BAC between 0.15% and 0.19% will trigger a mandatory minimum 5-day jail sentence. A BAC above 0.20% leads to a mandatory minimum jail sentence of 10 days. 

For second offenses that occur less than five years from the first, the driver will face a minimum $500 fine and 20 days in jail in addition to the minimum jail time from the first offense related to their BAC. Second offenses that occur five to ten years from the first offense also trigger minimum $500 fines, but with 10-day jail sentences.

Felony

DWI charges become Class 6 felonies for third and subsequent offenses. If the third offense is within five to ten years of the first, the driver faces a minimum $1,000 fine and 90 days in jail –plus applicable jail times from the first offense. Third offenses that are less than five years from the first also lead to minimum fines of $1,000 – but with six months in jail plus applicable jail times from the first offense. A fourth offense less than ten years from the first comes with a minimum $1,000 fine and one year in jail, plus applicable jail sentences for the first offense(s).

Have You Been Charged With Driving While Intoxicated?

Explaining the circumstances of a DWI to criminal courts in Virginia can be intimidating, regardless of the BAC level involved. Legal representation allows defendants to approach this challenge with confidence and efficiency. An experienced traffic attorney may be able to develop defense strategies that increase the chances of dismissal, or improve the chances of reduced penalties. Those charged with driving under the influence may consider contacting Driving Defense Law at (757) 929-0335. Reach out today to schedule a free consultation to discuss your legal options and learn more about DWI under the legal limit in Virginia.

According to the National Highway Traffic Safety Administration (NHTSA), over 13,000 individuals died in 2021 as a result of alcohol-linked traffic collisions. Since alcohol and other substances can severely impair a person’s ability to drive safely, law enforcement officials may choose to pull over and arrest a motorist they suspect of driving while under the influence. There are several things the motorist can do to remain safe and exercise their legal rights in this scenario. The following seven strategies may prove especially useful for protection when stopped for a DUI or DWI. Those who are already facing these charges, however, may wish to schedule a personalized consultation with a Virginia traffic law attorney. Call Driving Defense Law today at (757) 929-0335 to discuss your situation in more detail. 

What Does a DUI or DWI Mean?

Some states consider a driving under the influence (DUI) offense as less serious than driving while intoxicated (DWI), but this is not the case in Virginia. The Old Dominion uses both terms interchangeably, with the same definitions and penalties. That said, there are a few general distinctions between the two offenses:

• DWI: The United States Department of Transport defines impaired driving as driving that occurs when an individual operates a vehicle with a blood alcohol content level (BAC) of 0.08% or more. In clinical terms, alcohol’s effects on the human nervous system are due to its toxicity, and it is this toxicity to which “driving while intoxicated” refers. As elsewhere in pharmacology and toxicology, “the dose makes the poison”––so for law enforcement purposes, the degree of intoxication indicated by a BAC of 0.08% or greater is treated as sufficient to warrant the presumption of impairment, irrespective of whether the individual appears intoxicated.
• DUI: In contrast, a DUI charge concerns whether alcohol consumption has impaired driving ability. In terms of the technicalities involved, DUI discussions generally turn on measures of the driver’s impairment, rather than of their chemical intoxication as ascertained by breath, blood, or urine tests. The degree of impairment is the most important element, and a motorist can be found guilty of DUI regardless of their BAC level. 

Drivers concerned with technical questions of toxicology may wish to familiarize themselves with the language of Va. Code § 18.2-266, which establishes that Virginia’s laws prohibiting drunk driving also apply to intoxication with a variety of other substances known or suspected to cause impairment. The statute lists some of these substances, and the levels of chemically-measured intoxication at which they are presumed to cause impairment, but the list also includes “catch-all” phrases to provide for the possibility of novel intoxicants and combinations. 

What To Do if Pulled Over for DUI

Drivers stopped for a DUI in Virginia are often understandably nervous. If you are pulled over for a DUI, stay calm, and consider following these seven steps to protect your rights. 

Pull Over Promptly and Safely

Police officers executing a traffic stop on suspicion of DWI will be observing drivers from the moment they decide they have probable cause for the stop itself, and they will typically put any corroborating observations in their reports. Motorists should keep this in mind as they consider when and how to pull over, as the police officer will likely note any indication of impaired driving. These observations, recorded close in time to the original event, often go on to become the basis for the prosecution’s case. Frequently the state prosecutor will also call the arresting officer to testify in court regarding the observations they recorded in their initial report.

Avoid Suspicious or Sudden Movements

Police officers receive training designed to help them stay alert and protect themselves in the field, and they will typically approach the vehicle from the back so they can clearly see what is going on inside the car, a strategy which gives them time to react in the event that a motorist should turn around and attack. This approach vector also gives the officer an opportunity to observe a suspect’s behavior before interacting face-to-face. 

Rather than run the risk of raising enhanced suspicions, avoid sudden movements, including turning around to view the officer as they approach. Furthermore, do not slump down in the seat or get out of the vehicle suddenly. Instead, maintain standard driving posture and keep both hands on the steering wheel until the law enforcement officer reaches the window and asks for license and registration documents. To gain a more comprehensive understanding of how a person can protect their legal rights if stopped for a DUI or DWI, arrange a consultation with an experienced Virginia traffic law attorney from Driving Defense Law.

What To Say When a Cop Asks if You Have Been Drinking?

In general, motorists should refrain from volunteering information about their alcohol consumption, or lack thereof. If law enforcement personnel ask directly whether you have been drinking, and the honest answer is no, feel free to give that answer. 

If the honest answer is yes, then you may wish to consider stating that you have been advised not to answer any questions, and perhaps asking for permission to contact your attorney, rather than providing law enforcement with probable cause for escalating from an investigatory stop, as described by Cornell Law School’s Legal Information Institute, to a DUI investigation and subsequent arrest.

What Do You Say When a Cop Pulls You Over?

When pulled over by a police officer, communicate politely and calmly, allow the police officer to speak first, and avoid admitting any wrongdoing. Provide brief responses to questions, such as “Yes”, “No”, or “I am not required to answer that” (the third response can be a suitable reply to questions related to sleeping, eating, or drinking alcohol). 

7 Things To Do if Stopped for a DUI or DWI

In addition to following the steps above, motorists can safeguard their legal rights by considering these seven points if stopped for a DWI or DUI:

• Be respectful toward the officer, adopt a courteous attitude, and avoid being hostile, insincere, or rude.
• Provide the officer with the correct name, license, insurance, and registration details, but do not volunteer information regarding your activities, including drinking.
• Consider refusing to take field sobriety tests due to their unreliability and subjective nature in favor of a more scientific assessment. 
• Due to the inconsistencies of roadside breathalyzers, motorists may consider refusing them to avoid possible jail time. On the other hand, Virginia drivers have the right to request a preliminary breath test under Va. Code § 18.2-267, even if drivers may not always wish to exercise this right.
• If, however, the officer performing the traffic stop places the driver under arrest, refusing to submit to a chemical test at the police station within three hours of the arrest incident may constitute a violation of Va. Code § 18.2-268.3, which describes a licensed driver’s implied consent.
• After release (and while the memories are still fresh), the driver will likely wish to document the circumstances of their arrest, the details of their interactions with the arresting officer(s), and an account of any chemical tests administered, together with their results.
• Consider reaching out to an attorney to discuss your legal options.

Contact a Virginia Traffic Law Attorney Today

Law enforcement interactions can be overwhelming and intimidating, particularly for those who have never encountered a DUI stop before. When a person understands their rights regarding DWI traffic stops, they put themselves in a position to protect those rights and to defend them in court, including with the support of an experienced criminal defense attorney. Learn more about how to protect your legal rights when stopped for a DUI, and discover how a Virginia traffic law attorney may be able to help. Call Driving Defense Law at (757) 929-0335 to get started. 

Contrary to what people may think, an individual does not actually have to be driving a vehicle to be convicted of drunk driving in Virginia. That is why the police may arrest you for driving under the influence (DUI) if you were found sleeping in your car after consuming alcoholic beverages. Consider contacting an experienced traffic attorney at Driving Defense Law by calling (757) 929-0335 to learn more about DUI laws in Virginia and your legal options. 

Driving Under the Influence in Virginia 

Although people tend to assume that driving under the influence involves the act of driving, Virginia statutes do not require the vehicle to be in motion for DUI laws to apply. Under the Code of Virginia, it is against the law for any person to operate or drive any motor vehicle while under the influence of certain substances and alcohol. However, the terms operate and drive extend beyond the standard meaning of operating or driving an automobile. 

In Virginia, an operator or driver is an individual who drives or is in physical control of an automobile. As a result, a police officer can arrest a person for DUI if the officer has reason to suspect the individual is under the influence of a controlled substance and the suspect is in the vehicle with the key in the ignition. This logic may apply even if the key is not in the ignition but is within reach, or if the individual has access to remote or push start options for vehicle operation. As long as the person can turn the vehicle on, under the state’s rules, that person is in control of the vehicle. 

What if You Had No Intention of Driving? 

There are several reasons why an individual may get into his or her car after drinking without planning to drive. For instance, the motorist may want to get in the vehicle to:

• Get warm
• Stay safe 
• Check the time 
• Charge his or her phone to call for a ride

However, even if the impaired individual had no intention of driving, a police officer can still arrest him or her for drunk driving. If you were found sleeping in your car and arrested, an attorney from Driving Defense Law may be able to explain DUI laws in Virginia and help you explore your legal rights. 

What if You Fell Asleep in a Different Seat in the Car?

Although the laws mainly focus on the driver’s seat, the interpretation of physical control will usually depend on the circumstances of the incident and the discretion of the police officers involved. Consequently, if you fall asleep in the passenger seat, there is a possibility that you may still be charged for driving under the influence. However, this outcome will depend on numerous factors, including whether the officers believed you could still maneuver the motor vehicle.

How Do Police Officers Prove a Non-Driving DUI?

Even if you believe you are making the wise decision by sleeping in your car after drinking rather than driving home, it can still lead to stiff penalties and a lot of problems in the future. If you have been caught resting in your automobile while impaired, law enforcement could charge you with DUI. The officers will generally look for various factors to determine the charge, including the following: 

• Whether you recently drove your vehicle before stopping to rest
• Whether you showed the intent to drive while intoxicated
• Whether you had physical control of the car and the ability to drive it

To prove these factors, police officers will look for the following evidence:

• The location of the keys 
• Where the officers found you sleeping
• The warmth of the vehicle, as this can help them determine if the motor vehicle has been running or recently driven

Consequences of a DUI in Virginia

DUI convictions can have severe consequences in Virginia, including hefty fines, jail time, and license suspensions. A first-time DUI is a Class 1 misdemeanor, which is punishable by:

• Fines ranging from $250 to $2,500
• License suspension
• Jail time
• Alcohol education classes
• Probation

These penalties can increase substantially if the individual was arrested with a blood alcohol level of 0.15 or higher, or if they carry a record of previous DUI offenses. For instance, according to § 18.2-270 VA Stat., a third offense DUI is penalized as a felony crime, which has at least 90 days in jail and up to five years in prison. These crimes also include permanent revocation of a person’s driving privileges and other serious penalties.

What Could You Do If You Were Found Sleeping in Your Car?

While every case is different, there are some defenses that may be used if you have been arrested for sleeping in your motor vehicle in Virginia while under the influence. These defenses often involve arguing a lack of intent to drive the vehicle while only using the vehicle to rest. With these types of defenses, evidence is critical and may include proof of the person’s physical condition, the location of the key, and comments made by police officers.

Another possible strategy to fight a DUI charge is to examine the procedures followed by the officers during the arrest. This includes determining whether the police had a valid reason to approach the vehicle (probable cause) and whether the sobriety tests were properly administered. If the law enforcement officials infringed upon any constitutional rights during the arrest process, such as by conducting an unlawful search, it may be possible to have the evidence they obtained suppressed in court. To understand these defenses better or learn what legal options may be available, consider reviewing your case with an experienced Virginia DUI defense attorney. 

Contact a Defense Attorney Today To Review Your Legal Options 

If you were arrested for a DUI after the police found you sleeping in your car while impaired, remember that an arrest does not mean you are guilty. You may have legal options available to help you fight the DUI charges against you and keep your record clear. For more information regarding these options and to learn more about DUI laws in Virginia, consider contacting an experienced defense attorney from Driving Defense Law today by calling (757) 929-0335 to schedule your free case review.