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.
- Page 1
Is there a difference between a DUI and a DWI in Virginia?
A DUI and a DWI are both serious offenses in Virginia, but it can be confusing to try to understand the differences between them. If you have been arrested for drunk driving, it is important to understand which offense you have been charged with and what it really means.
What Are the Differences Between a DUI and a DWI in Virginia?
People often use DUI and DWI interchangeably when discussing drunk driving. Practically speaking, these offenses are the same in terms of the punishment. However, they are defined differently, and what the prosecutor must prove to establish your guilt is different. Under Virginia law, they mean the following:
- DWI. DWI refers to driving while intoxicated. You can be charged with this if you drive a motor vehicle with a blood alcohol content (BAC) of 0.08 percent or higher, whether or not you appear intoxicated.
- DUI. This means driving under the influence of alcohol, and you can be charged with this offense no matter what your BAC content is if your alcohol consumption impairs your ability to drive.
What Are the Penalties for a DWI and a DUI in Virginia?
In some states, a DUI is a less serious offense than a DWI, but this is not the case in Virginia. These offenses are equally serious, and you face the same penalties. You could face these sentences for a first DWI or DUI offense:
- Jail sentence of up to 12 months, with a mandatory minimum sentence of five days if your BAC was at least 0.15 percent and 10 days if your BAC was .20 or higher
- Fine of between $250 and $2,500
- Driver’s license suspension for up to one year
If you were charged with a DUI or a DWI in Virginia, let our experienced criminal defense attorneys help you fight to get the charges dismissed or reduced to a less serious offense. Call our office today to schedule a free, no-obligation consultation.
Can I have my reckless driving record expunged?
In Virginia, being charged with reckless driving is not the same as getting a ticket for failing to yield or another minor traffic violation. You are being charged with a misdemeanor offense that carries serious penalties that include a jail sentence, fines, and a possible license suspension. A charge and conviction can have long-term consequences because you will have a permanent criminal record with limited options to have your criminal record expunged.
When Are You Entitled to an Expungement in Virginia?
Expungement is the process of removing all record of a person’s arrest and conviction from his criminal record. If a criminal record is expunged, all record of the arrest and conviction are removed from the Virginia Criminal Information Network and the National Crime Information Network. This prevents any public access to a person’s criminal record by employers, educational institutions, and state agencies and allows the person to treat the arrest as if it never occurred.
However, your right to an expungement in Virginia is very limited. You are only entitled to have your record expunged in these circumstances:
- Acquittal. You were acquitted of the reckless driving charge either by a jury or judge.
- Nolle prosequi. This is a Latin term that refers to a decision by the prosecutor to not prosecute the case where he asks the judge to dismiss the case against you.
- No plea. If you never entered a plea before the charges were dismissed, you may be entitled to an expungement.
Because of the limitations for when a reckless driving conviction can be expunged, you will still have a criminal record in these situations:
- You pled guilty to or were convicted of reckless driving.
- You entered a plea of nolo contender, which means that you do not admit or deny the charges that you face.
- You entered an Alfred plea, where you asserted your innocence but admitted that the prosecutor probably had sufficient evidence to convict you.
- There was sufficient evidence to convict you, even if the judge dismissed the case.
- Your sentence was deferred or dismissed after the successful completion of your sentence.
Because your right to obtain an expungement is very limited, it is critical that you retain an experienced reckless driving attorney to build a strong defense, so the charges against you are dismissed or reduced to a less serious offense. To learn about our extensive experience helping clients facing reckless driving charges and how we can assist you, call our office today to schedule your free case evaluation.
Will a reckless driving conviction impact my government security clearance?
Many people charged with reckless driving are surprised to learn that this is a Class 1 misdemeanor criminal offense. As such, the ticket has the potential to affect your government security clearance in addition to leaving you with hefty fines and the possibility of jail time.
Receiving a Security Clearance
A security clearance is often a prerequisite for military service, employment in the government, or a position as a government contractor. There are different levels of security clearances that affect what level of information you have access to.
Standards for security clearances vary, but in general, a single conviction won't affect your ability to get a clearance. However, if you have other misdemeanor offenses or red flags in your record, you may encounter problems. Security clearances are awarded based on confidence in your overall character, but multiple convictions can cast doubt on your judgement.
Maintaining a Security Clearance
If you currently have a security clearance, you should consult your employee handbook to learn about specific reporting requirements. Some companies may only require that felony convictions be reported, which means you don't need to report a misdemeanor reckless driving conviction. Others will require that all offenses, even if you've only been charged and not convicted, be reported.
Failing to abide by your employer's reporting requirements may result in disciplinary action or termination of your employment. Even though you might be reluctant to discuss pending legal action with your supervisor or company HR representative, it’s important that you do so.
Protecting Your Professional Reputation
Since a reckless driving conviction can be considered a potential black mark on your application for a security clearance, it’s in your best interests to obtain skilled legal representation to help you build an aggressive defense against the charge. Virginia reckless driving attorney Charles V. Hardenbergh can help you use tactics such as obtaining a speedometer calibration or providing proof of radar calibration issues to have the charge dropped or reduced to a lesser offense. Call today to schedule a free, no-obligation case review.
Should I appeal my DUI conviction?
If you've been convicted of a DUI in Virginia, it's often in your best interests to file an appeal. A DUI is normally tried in the General District Court of the area where the crime was committed, but an appeal is handled by the Circuit Court of Virginia.
Reasons to Ask for an Appeal
You can appeal whenever you're unhappy with the result of your DUI case, even if you originally pled guilty in General District Court. When your appeal is processed, the prosecutor won't be allowed to mention your guilty plea.
Common reasons people may appeal include:
- Missing evidence
- New witness testimony
- Change in legal strategy
- No legal representation at original trial
How Do I Ask for an Appeal?
The process of filing an appeal is quite simple, but you must appeal within 10 calendar days of your conviction. If you wish to appeal the outcome of your case, all you need to do is file a Notice of Appeal in the General District Court clerk’s office. The clerk will complete the form on your behalf, so only your signature is necessary.
Do I Still Need to Pay My Fines If I Appeal?
If you're appealing your case, this provides a temporary stay of judgements against you. This means, you don't have to pay your fines, serve jail time, or surrender driving privileges until the appeal is complete. If you later withdraw your appeal, however, the original sentence will stand.
Can I Get a Different Attorney for My Appeal?
It is your right to change legal representation at any time, so you can seek a different DUI attorney to handle your appeal if you believe your case wasn't presented appropriately the first time. You can also obtain representation for an appeal if you didn't have a lawyer during your original trial.
Virginia attorney Charles V. Hardenbergh is dedicated to providing aggressive representation for clients, using a variety of techniques to reduce or drop a DUI charge. Call today to schedule a free, no-obligation case review.
Are online BAC charts accurate?
It may seem that consulting an online blood alcohol content (BAC) chart would be a good way to help you drink responsibly, but these charts aren't always accurate. Online BAC charts are intended to estimate your level of impairment. They are not an indicator that you are always safe to drive. Some factors that can influence the accuracy of these charts include:
- Rate of alcohol consumption. Sipping a drink minimizes the effects of alcohol, while rapidly gulping down drinks increases intoxication because the liver can't keep up. BAC charts are calculated based on a standard rate of one drink per hour.
- Serving size. BAC charts assume that one beer is 12 oz. with 4.5% alcohol content, one glass of wine is 4 oz. with 15% alcohol content, and one shot of hard liquor is 1.5 oz. with 40% alcohol content. If you're not paying close attention to these serving sizes, you can seriously underestimate your level of impairment.
- Past drinking habits. Someone who regularly drinks alcohol will likely have a higher tolerance than someone who seldom or never drinks.
- Genetics. Some people have a low genetic tolerance to alcohol due to a lack of enzymes necessary to break down a drink. Having a condition that gives you a higher or lower than average metabolism can also affect the accuracy of an online BAC chart.
- Time of last meal. If you haven't eaten in quite some time, you'll be impaired much more quickly than someone who recently had a big meal.
Accuracy of Sobriety Tests
While online BAC charts are not 100% accurate, it's also worth pointing out that the sobriety tests a law enforcement officer uses during a DUI stop are not infallible either. Having low blood sugar, taking certain prescription medications, or recently suffering from an inner ear infection are just a few examples of special circumstances that can lead to inaccurate test results.
Protecting Your RightsIf you've been charged with a DUI, it's essential that you seek the assistance of a qualified attorney to prepare an aggressive defense. Call Charles V. Hardenbergh today to schedule a free, no-obligation case review.
Can I drive to work after a DUI conviction in Virginia?
If you need to drive to get to work, losing your license due to a DUI conviction can present a major challenge. However, it is sometimes possible to be granted restricted driving privileges by the court.
Receiving Restricted Driving Privileges Following a DUI
If you’ve received your first DUI conviction, the court has the authority to automatically grant you restricted driving privileges. This doesn't necessarily mean you'll receive a restricted license immediately, however. Depending on the circumstances surrounding your arrest, you might be required to complete a substance abuse evaluation or treatment program first.
If you've had a prior DUI conviction in the last 10 years, the court does not have the authority to grant restricted driving privileges immediately. You will have to wait between four months and three years to receive a restricted license, depending on how many times you've had prior convictions and how long ago they occurred.
Regardless of how many prior offenses you've had, you'll need to get an ignition interlock device installed before you will be granted restricted driving privileges.
How a Restricted License Works
A restricted driver's license allows you to drive only for the specified purposes that are approved by the court. Most people use a restricted license for transportation to and from work, but attending classes, medical appointments, worship services, and child visitation are some other examples of driving purposes the court may approve.
Your restricted license is typically printed on a green piece of paper. It has your specific restrictions, an expiration date, and your signature. You must keep the license with you at all times.
You are only allowed to drive for the purposes listed on your restricted license. If you deviate from the approved route and/or driving times, your vehicle can be impounded, and you can be charged with driving on a suspended license.
The Value of Legal Representation
An experienced DUI attorney can help you build an aggressive defense to avoid the negative consequences associated with a conviction. However, if you are convicted of a DUI, your attorney can assist you with the process of obtaining a restricted license. Call today to schedule a free, no-obligation initial case review with Virginia attorney Charles V. Hardenbergh.
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.
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.
Will a reckless driving conviction affect my ability to keep my CDL?
A valid CDL is a requirement for many different types of positions throughout Virginia. However, a reckless driving conviction can result in a CDL suspension or disqualification.
When Your Regular Driver's License Is Suspended
A CDL is essentially a higher level version of a regular driver's license. You can't have a valid CDL unless you've already received a basic Class D Virginia driver's license for operating passenger vehicles.
Whenever your regular driver's license is suspended for reckless driving, you'll be unable to legally drive a commercial motor vehicle. The restricted license that some drivers are able to get for work-related purposes won't allow you to operate a commercial motor vehicle.
CDL Disqualifying Offenses
Virginia considers certain acts to be disqualifying offenses for a CDL. This includes:
- Reckless driving (in any vehicle)
- Speeding 15 mph or more above the speed limit (in any vehicle)
- Improper or erratic lane change (in any vehicle)
- Tailgating (in any vehicle)
- Moving violations related to a fatal crash (in any vehicle)
- Driving a commercial motor vehicle without a valid CDL
- Driving a commercial motor vehicle without the proper CDL class and/or endorsements
- Driving a commercial motor vehicle without a CDL in your possession
- Texting while driving a commercial motor vehicle
Two serious violations in a three-year period results in a 60-day CDL disqualification. Three or more serious violations in the same timeframe results in a 120-day CDL disqualification.
Your Employer May Have Special Rules
Aside from the penalties Virginia assesses for reckless driving, your employer might have rules about who is allowed to continuing operating vehicles in its fleet. Even if you were operating your personal vehicle at the time and have no previous disqualifying offenses on your record, your employer may choose to discipline you or terminate your employment because of a reckless driving conviction.
Charles V. Hardenbergh Can Help
If you depend on your CDL to earn a living, you need an aggressive defense against a reckless driving charge. Call to schedule a free, no-obligation initial consultation with Virginia attorney Charles V. Hardenbergh.
Can I get a restricted license if I’m convicted of reckless driving?
Losing your license due to a reckless driving conviction can present significant hardship. However, you may be able to get a restricted license if you petition the court.
Applying for a Restricted License
Restricted licenses are not granted automatically. You must specifically ask for a restricted license when you appear before the court, and the judge has the authority to grant your request at the time of your reckless driving conviction. Requests are approved based on a legitimate need for transportation, since a restricted license only allows you to drive for very specific purposes.
Restricted licenses are issued to ensure you have access to transportation for activities that the court considers of high importance. This can include:
- Getting to and from work
- Using your vehicle for transportation during working hours
- Receiving appropriate medical care
- Participating in worship services
- Traveling to and from court or a probation program
- Providing transportation for a child who is attending school
- Attending child visitation that has been approved by the court
In Virginia, restricted licenses are typically issued as a green sheet of paper with a list of specific driving restrictions. You must sign the paper, and keep it with you when you're driving.
Violating the Provisions of a Restricted License
It's vital to keep in mind that a restricted license does not allow you to drive for any reason other than what's specifically approved by the court. You can't make any deviation from your route, even if it's as simple as stopping to pick up a friend on your way home from work or grabbing a gallon of milk after school.
If you drive for unauthorized purposes, your restricted license can be revoked. You may face additional fines and added jail time to your reckless driving sentence.
Seeking Legal Representation
An experienced reckless driving attorney can help you build a strong defense against a reckless driving charge, request a restricted license, or file an appeal. Call to schedule a free, no-obligation initial consultation with Virginia attorney Charles V. Hardenbergh to learn more about your legal options.
Will a reckless driving conviction impact my military service?
Reckless driving convictions are considered criminal charges, unlike a simple traffic violation such as speeding. This means that a conviction can create problems if you're currently serving in the military or are hoping to enlist.
How a Reckless Driving Conviction Affects Your Ability to Enlist
Each branch of the military has slightly different rules for how a reckless driving conviction affects men and women hoping to enlist.
- Air Force. If you're hoping to serve in the Air Force, keep in mind that reckless driving is a Category 4 moral offense on the same level as disorderly conduct and unlawful possession of alcohol or tobacco. You can be disqualified for having two or more Category 4 offenses within the last three years. However, a recruiting squadron commander can sometimes have the disqualification waived if your other qualifications are strong.
- Army. To serve in the Army, you need to consider your total number of misdemeanor convictions. Two or more misdemeanors require a waiver for enlistment, while four or more will disqualify you from service.
- Marines or Navy. For those who want to enlist in the Marines or Navy, misdemeanor reckless driving convictions can be waived at the district level.
Maintaining an Active Security Clearance
Those who are currently serving in the military must report a reckless driving arrest to their commanding officer. The associated penalties for this infraction vary according to branch of service, but maintaining your security clearance may be an issue of concern.
The military assigns three levels to security clearances: confidential, secret, and top secret. As your level advances, the requirements to get or maintain a clearance increase. Reckless driving is not automatically disqualifying, but it factors into your rating for honestly, reliability, trustworthiness, and loyalty.
How a Reckless Driving Attorney Can Help
If you're hoping to enlist or are currently serving in the military, don't simply pay your ticket and accept the consequences. An experienced reckless driving attorney can help you build a strong defense, using strategies such as a speedometer calibration or agreeing to complete a driver improvement clinic. You may be able to have the charge reduced to a lesser infraction such as improper driving or dropped all together. To learn more, call to schedule a free, no-obligation initial consultation with Virginia attorney Charles V. Hardenbergh.