The attorneys at Ervin Kibria PLLC are committed to providing updates and insight into changing criminal offenses in Virginia and DC.
Quite often we receive calls from potential clients who have recently been charged with a DUI in Northern Virginia, and their first question is “What is the point of hiring a lawyer in a DUI case?”. Just because you blew above a .08 BAC does not necessarily mean that the prosecution can prove beyond a reasonable doubt that you were driving under the influence. There are many ways – some technical, and some legal – to defend against a DUI charge, which is exactly why you should retain an attorney if you’re charged with a DUI in Northern Virginia.
An experienced DUI attorney in Fairfax can often challenge the stop and subsequent arrests in a DUI case. The attorneys at Ervin Kibria PLLC have a comprehensive understanding of the laws in Virginia and will work hard to defend you in your Virginia DWI case.
A substantial amount of investigation and evidence review go into producing an effective DUI or DWI defense. However, the prosecution bears the burden of proving its case and a skilled and experienced attorney has many options for effective defense strategy.
The police in Virginia must have reasonable and articulable suspicion of criminal activity to stop a car. Often, the police will base this suspicion on:
But even after a car is stopped, the police must have probable cause to believe the driver is under the influence before an arrest for drunk driving can be made. The police usually attempt to establish this by having the driver perform so called field sobriety tests. It is important to remember these tests are voluntary, and a driver is under no obligation to attempt to perform them. Additionally, the police may also ask the driver to blow into a small breath test machine in order to determine whether there is probable cause to arrest for drunk driving. Again, this test is voluntary and the driver cannot be charged with anything for refusing to take this preliminary test.
If a driver is arrested, most often, he or she will be taken to the jail where a test on an Intox EC/IR II machine will be offered. Under Virginia Code 18.2-268.9, chemical analysis of a person’s breath must be conducted by a person with a valid license, with a type of equipment and in accordance with methods approved by the Department of Forensic Science (DFS). The government often has difficulty producing testimony or other evidence to indicate that the breath test was conducted in accordance with the methods approved by DFS. For instance, under Virginia Code 9.1-1101, the Department of Forensic science shall “test the accuracy of equipment used to test the blood alcohol content of breath at least once every six months. Only equipment found to be accurate shall be used to test the blood alcohol content of breath.” It is often difficult for the government to produce a witness or otherwise prove that the breath machine has been so tested.
While the Virginia Supreme Court has recently held that failure to produce such evidence is not grounds for exclusion of the certificate of breath alcohol analysis in court, the failure to prove that the breath machine has been calibrated can still be considered in determining how much weight the court gives the result of the test.
To adequately determine what the best defense to your DUI, please contact the Fairfax DUI lawyers at Ervin Kibria PLLC today.
Justin Ervin is a criminal defense and immigration attorney who practices in Northern Virginia.