This month I helped a client charged with DWI 2nd offense and Refusal 2nd offense. To achieve a not guilty decision, we had to show that the evidence was not sufficient for the judge to find my client guilty beyond a reasonable doubt. In this case, my client made good decisions during his contact with the police that helped me win his trial.
The police approached my client due to an accident. He cooperated with the police, but refused to participate in any field sobriety tests and declined a handheld preliminary breath test (PBT). A driver is not required to complete these tests. He also refused to submit to the formal breath test on the Intoxilyzer EC/IR II at the police station. Refusing a breath test results in an additional charge of Refusal. However, it also avoids a presumption of being under the influence. Additionally, the lack of a blood alcohol level and field tests meant that the officer was limited to testifying about my client’s appearance. When combined with a detailed timeline of my client’s activities and a description of his medical issues, the judge concluded that there was a lack of evidence that my client was under the influence at the time of the driving.
The dismissal of the 2nd offense DWI avoided 20 days mandatory minimum jail, three years license suspension, $500 minimum fine and completion of ASAP. Although refusing the breath test helped him avoid the DWI conviction, it did result in a refusal conviction that he appealed.
Matney Law PLLC with offices in Williamsburg & Newport News are providing some sample DUI cases results for your review. You may read all of the case results for 2015 through 2018 in the tabs on this website. Mark Matney has defended hundreds of people in traffic court. If you are looking for a experienced DUI defense team, then call Matney Law. We focus on the cities and counties between Virginia Beach and New Kent.
During the past month, I achieved dismissals for two of my DUI clients. During this time I also helped other clients by negotiating the amendment of a DUI to reckless driving, the dismissal of other charges, the avoidance or reduction of jail, and other positive sentencing outcomes.
The dismissal by nolle pros was exciting for my client, but it was not extraordinary. By showing up ready for trial, I was able to take advantage of a difficulty with the prosecution’s evidence. This resulted in the prosecutor asking the judge to dismiss the case with the hope that he can possibly obtain the necessary evidence in the future.
The not guilty decision was exhilarating. DUI trials are hard fought, with most of my clients presumed to be under the influence as soon as we walk into the courtroom. In this case, I argued a legal issue to challenge the admissibility of the breath certificate and the judge agreed to exclude the breath certificate with my client’s blood alcohol level. This decision removed the presumption that my client was under the influence and left both sides to argue about the field sobriety tests. After the officer described what he remembered happening, I asked him clarifying questions and gave him the opportunity to explain how poorly he thought my client performed on the tests. The problem for the prosecution was that I then played the officer’s video of my client’s field sobriety tests and the judge was able to see that my client did not make the errors that the officer described. With the breath certificate excluded and the video demonstrating that my client did well on the field tests, the judge disregarded the officer’s testimony and found my client not guilty of driving under the influence (DUI).
Matney Law PLLC has put together this detailed document for Penalties For DUI Conviction in Virginia. The Matney Law firm provides legal defense for drunk drivers in Hampton Roads, Newport News, Hampton, Williamsburg, and the counties of York, James City, New Kent, Isle of Wight, and Surry.
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What are the Penalties for a DUI conviction in Virginia?
Virginia Code Section 18.2-270 provides mandatory minimum sentencing requirements for people who are convicted of DUI and imposes enhanced penalties for cases that involve a high BAC and/or a subsequent offense. A judge must sentence someone who is convicted of a first offense DUI whose BAC is below 0.15 as follows: fine between $250 and $2,500, one year license suspension, completion of the Virginia Alcohol Safety Action Program (VASAP), and installation of an ignition interlock system for 6–12 months. Although there is no mandatory jail sentence for a first offense DUI with a BAC under 0.15, judges typically order a suspended jail sentence that could be imposed if the person fails to complete VASAP or does not remain of good behavior. In most cases, a first offender does not go to jail other than at the time of the arrest, receives a restricted license to drive for work, school, and certain other defined purposes on the day of court, and receives a fine close to the $250 minimum.
With respect to the alcohol level, even for a first offense, jail will be imposed for a BAC of 0.15 or above. In Virginia, a BAC of 0.15 to 0.20 will result in a five-day mandatory minimum jail sentence and if the BAC is above 0.20 the jail sentence will increase to a mandatory minimum of 10 days.
The penalties for a DUI conviction increase dramatically for a second offense. The judge must order the defendant’s license to be suspended for three years and the minimum fine increases to $500. If the second offense occurs within five years of the first offense, there is a mandatory minimum 20-day jail sentence and the defendant will not be eligible to apply for a restricted license until one year after the date of the conviction. If the second offense occurs within five to ten years of the first offense, then the mandatory minimum jail sentence is ten days and a restricted license may be obtained after four months. In both cases the judge may impose the ignition interlock machine for as long as the person has a restricted license.
The BAC is a significant factor in a second offense. The mandatory minimum jail sentence for a high BAC doubles when attached to a second offense. Thus, a person who is convicted of a second offense DUI with an elevated BAC will receive 10 mandatory days of jail with a BAC of 0.15 to 0.20 or a minimum of 20 days of jail if the BAC is over 0.20. Significantly, the mandatory jail for a high BAC is in addition to the mandatory jail for the second offense itself. This means that if a person is convicted of a second offense DUI within five years of a first offense and has a BAC over 0.20, then he would receive a mandatory minimum jail sentence of 20 days for the second offense, plus at least 20 days of jail for the high BAC, for a total of at least 40 days in jail.
A third offense DUI conviction is a Class 6 felony. This means the loss of certain rights (such as voting, serving as a notary, and possessing a firearm) in addition to the penalties imposed by the court. Being found guilty of a third DUI results in an indefinite license suspension and no opportunity to apply for a restricted license until three years after the conviction. The minimum fine for a third DUI is $1,000. The sentencing range for a third DUI conviction is one to five years with a mandatory minimum time in jail of six months for a third offense within five years and at least three months in jail if the third offense is within five to ten years of the priors.
In addition to the mandatory sentencing requirements of the Virginia Code, judges evaluate several other factors to determine whether a DUI sentence should include enhanced penalties. These factors include: blood alcohol level, refusal to submit to blood alcohol testing, whether or not the driver caused an accident, degree of cooperation with law enforcement, any additional charges against the defendant, and any prior criminal history. Moreover, many judges consider personal injuries to others as an aggravating factor that justifies imposing or increasing time in jail. In one of my first-offense DUI cases, the driver injured his passenger and received a six-month jail sentence (three months to serve after good time credit) and in another first-offense DUI case the driver injured a couple who was driving another vehicle and received a twelve-month jail sentence, which he appealed to the next level court. Most first-offense DUI cases do not involve any active jail time, but the extent of the injuries in these two cases provoked the judges to deal more harshly with the defendants.
It is important to note that judges consider lack of cooperation with the police when they make their sentencing determinations. Two reckless driving cases that I handled demonstrate how judges react adversely to conflict between the client and the police. The two clients were in similar situations with comparable speeds and the same judge. The first driver saw his charge amended from the misdemeanor of reckless driving to a traffic infraction. However, the second driver was found guilty of reckless driving. The driver who was convicted of reckless driving had ranted and cursed at the police officer. The judge was simply unwilling to give that driver a break after he had been so discourteous and uncooperative with the officer.
One situation that sometimes affects sentencing is a client’s past criminal history. If a client had a DUI conviction more than ten years before the new charge, then the prior offense cannot be used to elevate the new charge to a second offense. However, the prosecutor or the judge may argue that the person should not be treated the same as someone who is truly a first offender. This argument is sometimes successful in obtaining a more severe sentence than would be typical for someone without the prior record.
Matney Law PLLC of Newport News Virginia has put together the following information for your information. The Virginia Code penalizes passing a stopped school bus with two separate provisions. Code section 46.2-844, Passing Stopped School Buses, punishes the offense as a civil penalty. However, code section 46.2-859, Passing A Stopped School Bus, criminalizes the offense as a class 1 misdemeanor under the reckless driving category.
Section 46.2-844, the civil version, is considered a lesser included offense of the reckless driving code section, so the same driver cannot be convicted of both charges from the same violation. This is significant because convictions of the two charges result in such different outcomes. The less serious 46.2-844 provides only “a civil penalty of $250” and does not carry any DMV demerit points. On the other hand, a conviction under the reckless driving section, 46.2-859, would result in a criminal conviction that would appear permanently on the driver’s criminal history and eleven years on the driver’s DMV transcript, while also subjecting the driver to six DMV demerit points and the possibility that a judge could impose a fine, license suspension, and/or jail.
The language of the two code sections is very similar with most of the charge descriptions being identical, as indicated by the underlined portions:
“The driver of a motor vehicle approaching from any direction a clearly marked school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children, the elderly, or mentally or physically handicapped persons, who … fails to stop and remain stopped until all such persons are clear of the highway, private road or school driveway …” 46.2-844, emphasis added to identify identical language.
“A person driving a motor vehicle shall stop such vehicle when approaching, from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children, the elderly, or mentally or physically handicapped persons, and shall remain stopped until all the persons are clear of the highway, private road or school driveway and the bus is put in motion …” 46.2-859, emphasis added to identify identical language.
The two code sections also include identical language rendering it “prima facie evidence that the vehicle is a school bus” upon “the testimony of the school bus driver, the supervisor of school buses or a law-enforcement officer that the vehicle was yellow, conspicuously marked as a school bus, and equipped with warning devices …”
In practice, the difference between the two charges is the perceived risk that the driver imposed on those who were entering or leaving the bus. Judges consider such factors as whether anyone was actively boarding or exiting the bus and whether the driver stopped and proceeded, slowed, or did not react at all in response to the stopped school bus.
Drivers run the risk of being charged under these code sections even if they are not stopped immediately at the location of the offense. If the police are not available or able to stop and identify the transgressing driver at the time of the violation, then a summons may still be issued. The Virginia Code provides that if a summons is “issued within ten days of the alleged violation,” then it will be presumed that the registered owner of the vehicle was the driver when the offense occurred. The owner is entitled to present evidence that he or she was not driving the vehicle at the time in order to rebut or contradict this presumption.
The initial determination when charged with passing a school stopped school bus is whether code section for reckless driving or section for a civil infraction applies. If charged with a criminal misdemeanor under the reckless driving code provision, then it is vital to prepare appropriately to seek an amendment to the lesser offense.