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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Is a DUI a misdemeanor or felony in Virginia?
In most cases, a DUI offense in Virginia is a misdemeanor offense. However, in some situations, a person can face a felony charge. Whether you are being charged with a felony or misdemeanor for drunk driving, it’s important to retain an experienced DUI attorney as soon as possible to help with your defense.
When You Can Be Charged With a Felony DUI
In limited circumstances, a DUI is charged as a felony in Virginia. You may face a felony charge in the following situations:
- If you were convicted of a DUI twice within the last 10 years, you could face a Class 6 felony DUI charge.
- If you caused someone to suffer injuries or death as a result of your drunk driving—even in a first offense—you may face Class 6 felony charges.
While a Class 6 felony is the lowest level felony, a conviction can result in harsh penalties. You may face a prison sentence of between one and five years. However, the judge or jury has the discretion to sentence you to jail instead of prison and/or a fine of up to $2,500. The following are mandatory minimum sentences:
- 90-day minimum jail sentence for a third conviction within 10 years
- Six-month mandatory jail sentence if the third conviction occurred within five years
- Mandatory fine of $1,000
In addition, your driver’s license could be revoked indefinitely.
You can also face harsh penalties if convicted of a misdemeanor DUI. This can include a mandatory minimum $250 fine, possible mandatory jail sentence, and a driver’s license suspension. As with a felony conviction, you would have a permanent criminal record that could limit your ability to obtain a job and affect other aspects of your life long after you complete your sentence.
You Need an Experienced DUI Attorney
You need a skilled DUI attorney who can help you build a strong defense, so the charges might be dismissed or reduced to a less serious offense. To learn about our experience fighting for the rights of our clients charged with a DUI and how we can assist you, start an online chat to schedule your free consultation today.
What if I have a child in my car when I’m arrested for a DUI?
Being charged with DUI in Virginia is always a serious matter. You could face harsh penalties that include a jail sentence, hefty fine, suspension of your driver’s license, and a permanent criminal record. However, the consequences could be even harsher if you are arrested for a DUI with a child in your vehicle.
What Is DUI Child Endangerment in Virginia?
Child endangerment is generally considered placing a child who is under 18 years old in danger of injury or death due to a willful act, omission, or refusal by a parent or other adult to provide necessary care to the child. As is true in many other states, driving under the influence of alcohol is considered child endangerment in Virginia. If you are arrested for a DUI with a child in your vehicle, you could also be charged with DUI child endangerment, which is a separate offense with its own penalties. Upon conviction, you may be sentenced to the following:
- Fine of between $500 and $1,000
- Mandatory prison sentence of five days in jail
- For a second or subsequent offense, 80 hours of community service in addition to other penalties
If you’re convicted for a DUI and DUI child endangerment, you will have a permanent criminal record. This can have long-term consequences on your life, including your ability to obtain a job, get a security clearance, and become a citizen. In addition, a conviction for DUI child endangerment may affect your custody or visitation rights.
Are you being charged with a DUI or DUI child endangerment? Given the harsh consequences that you face, you cannot afford to try to represent yourself in your criminal proceedings. You need the assistance of an experienced DUI attorney who can build a strong defense against the charges you face. Even if you believe you are guilty, you could have defenses that will result in the charges being dismissed or reduced to a less serious offense. To learn more, start an online chat to schedule a free 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.
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.
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:
- 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.