Questionable Transgression: Answering Your Concerns About Criminal Charges and Defense

When you see the blue party lights in your rearview mirror, the "oh, no" feeling gradually turns to frustration and a sense of helplessness. When you begin to feel overwhelmed, we're here to help. Here are some frequently asked questions from our clients. Please remember, every case is different, so call us today for your free consultation to discuss the specifics of your case.

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  • Can I refuse to take a sobriety test in Virginia?

    Under Virginia law, field sobriety tests are considered completely voluntary. If you're not comfortable participating, you have the legal right to refuse to do so. However, refusal is not necessarily without consequences.  Sobriety test refusal

    Potential Reasons for Refusing a Sobriety Test

    Field sobriety tests typically measure coordination, balance, and focus, and there are several different tests that can be used. An officer may ask you to balance on one leg while counting to ten or take nine heel-to-toe steps and make a 180 degree turn to walk back toward your starting point. These tests are considered controversial because they can be difficult for some people who are completely sober to perform. For example, someone with an inner ear infection could have temporary troubles with equilibrium and balance. Past neurological damage, skeletal and movement disorders, or poorly controlled diabetes can also make it difficult to pass a sobriety test.

    The Breathalyzer Preliminary Alcohol-Screening (PAS) test is also considered a type of field sobriety test. It estimates your blood alcohol level (BAC), but it can be thrown off by medications you've been taking, conditions such as acid reflux, a slower than average metabolism, or having recently vomited.  

    How a Test Refusal Impacts Probable Cause

    Although you're not required to submit to field sobriety tests, refusing to do so can be weighed as part of the overall determination of probable cause. On its own, a refusal to submit to a sobriety test can't be considered probable cause. However, if there is other evidence to suggest you've been drinking, such as erratic driving behavior or the smell of alcohol on your breath, the officer can use your refusal to determine probable cause for an arrest.

    How a Test Refusal Impacts DUI Sentencing

    When you appear in court, your refusal to agree to a field sobriety test does not increase the potential penalties associated with the DUI charge. You face the exact same penalties you would if you had agreed to the test initially.

    If you've been charged with a DUI, building an aggressive defense is essential. Call today to schedule a free, no-obligation initial case review with Virginia attorney Charles V. Hardenbergh.


  • Does Virginia have an open container law?

    A violation of Virginia's open container law is punishable as a Class 4 misdemeanor, the least serious type of criminal charge. Violations are punishable by a fine of up to $250, but no jail time. Drivers can be cited for an open container violation as a single offense or with a more serious charge such as a DUI. Open container laws in Virginia

    About Virginia's Open Container Law

    Virginia's open container law makes it illegal to consume alcoholic beverages while driving a motor vehicle. The statute creates a rebuttable assumption that you've violated the law if the following terms apply:

    • There is an open container of alcohol in the passenger compartment, missing the original factory seal.
    • The container of alcohol is not 100% full.
    • You do or say something that suggests you've been drinking such as having the smell of alcohol on your breath, slurring your words, or driving erratically.

    As written, this statute makes it easy for officers to obtain a conviction. If you've been stopped on suspicion of a DUI and there is alcohol in your car, there is an excellent chance you'll end up with an open container violation, as well. However, drivers who aren't legally impaired can still find themselves in trouble. For example, consider this scenario: You go out to dinner with a friend, order a bottle of wine, each have one glass, the waiter recorks the bottle, and you put the bottle in your car. Even if your BAC is under the legal limit when you're pulled over, you could still be charged with an open container violation if the officer finds anything unusual about your behavior.

    Protecting Your Rights

    The safest course of action is to always carry open containers of alcohol in your trunk or in the last upright passenger seat of an SUV or van. However, if you've already been charged with an open container violation and/or a related DUI charge, it's a mistake to simply plead guilty and accept the consequences. Having a criminal conviction on your record can affect job opportunities, security clearances, and credit applications. Call today to schedule a free, no-obligation initial case review with Virginia attorney Charles V. Hardenbergh.

  • What are some things that can affect sobriety test results and lead to a false DUI conviction?

    When a police officer suspects that you’re driving drunk, his first response will be to pull you over and test your abilities to focus. If you wind up failing his tests, you’ll be accused of driving under the influence (DUI), which can be considered either a misdemeanor or felony depending on the circumstances. Even a first-time DUI accusation can result in extreme consequences and penalties if you’re convicted.

    Unfortunately, the field sobriety tests (FST) that law enforcement officials use to determine intoxication are not reliable. The basic premise of each test is to see whether alcohol has affected your focus, balance, and attention. However, these tests are known to give false positive results, depending on certain factors.

    This means that your future could be jeopardized even if you’re completely innocent, as a result of simple misunderstandings, miscommunications, or factors beyond your control.

    Innocent Failures: Factors That Can Contribute to a Failed Sobriety Test

    It’s important to know that you have the right to refuse to take a field sobriety test. However, people who refuse are usually arrested and taken to the nearest police station, hospital, or state police office where a breath or blood test can be performed.

    When you agree to take a field sobriety test, you’ll be subjected to one or more of six exercises. These exercises will test your balance, your focus, your ability to pay attention, and the amount of alcohol in your bloodstream. However, any number of things besides alcohol can affect the results. For example, if you have an inner ear infection, your balance may be unreliable.

    Unfortunately, many police officers will not take such factors into consideration when charging you. This means that even though you may not have had anything to drink, a police report illustrating the failed test could wind up convicting you of a DUI offense.

    Other factors that could affect FST results include:

    • Fatigue.
    • Footwear. Women wearing high heels may have a more difficult time walking and balancing.
    • Pavement conditions.
    • Weather conditions. Slippery sidewalks, rain, or low temperatures can affect concentration and stability.
    • Natural instability or physical injury. A bad hip or naturally poor balance can result in a failed test.
    • Prescription medications. Some medications can cause your eyes to tremble or cause balance difficulties.
    • Low blood sugar
    • Poor instructions or miscommunication. If the officer didn’t adequately explain what you were supposed to do, you may not complete the test successfully.
    • Dentures. Artificial teeth can interfere with a breathalyzer chemical test.
    • Asthma. Both asthma and the use of a medical inhaler can potentially affect the breathalyzer reading.

    The Test Was Bad. What Happens Next?

    If you believe that you failed a field sobriety test due to one or more of these factors, a Virginia DUI attorney may be able to help clear up the situation and keep you from a criminal conviction. For more information on how to fight charges and avoid legal consequences, contact us today at (804) 835-5127 for a free consultation.