The attorneys at Ervin Kibria PLLC are committed to providing updates and insight into changing criminal offenses in Virginia and DC.
All to often, we hear from clients and potential clients that they’re not sure whether it is even worth hiring a defense attorney to help them with their DUI charge because it’s an “open and shut case.” First of all, there is no such thing as an open and shut case. Everyone, regardless of their actions, is entitled to 4th Amendment rights. Was the stop of your vehicle valid? Was there enough probable cause to arrest you? You can only get proper advice on these issues by speaking to an experienced Fairfax DUI Lawyer.
That said, we know that people tend to go to the internet first for advice before reaching out to an expert. So we’ll provide some information to help you think about your specific case:
All traffic stops must be performed with reasonable suspicion that the driver has either violated the motor vehicle code or with reasonable suspicion that the driver is engaged in some type of criminal activity. Usually, if there is no violation of the traffic code, the officer making the stop will claim that there was some sort of traffic movement which is legal but him some sort of cause to believe that the driver was impaired.
The defense, however, does not have to show that there was no such movement of your vehicle. Rather, the burden on the defense is only to show that there was no warrant issued for the seizure of you and your vehicle on the date that you were stopped. A warrantless stop is legal and valid IF the officer had “reasonable, articulable suspicion” that a crime was committed or was being committed. This stop is legal only if the officer is able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the officer’s stop of your vehicle.
As always, it is the state’s burden to show that there is a valid exception to the warrant requirement of the 4th Amendment to arrest you for suspicion of DUI. A warrantless arrest is only valid if it is based upon probable cause. Of specific importance, the Virginia Supreme Court has ruled that the mere odor of alcohol on a person’s breath without more is insufficient to establish either intoxication or lack of control of one’s vehicle. That means that an officer’s simple observation that you may have the odor of alcohol on your breath is not sufficient evidence by itself to sustain an arrest. Additionally, erratic behavior of the defendant alone is also not sufficient to establish probable cause for arrest. The officers must establish a connection between the “erratic” behavior and the consumption of alcohol before the evidence can rise to the level of probable cause for a lawful arrest.
This is a start to get you thinking more thoroughly about your own DUI case. For more information, please visit Fairfax DUI Lawyer, Alexandria DUI Lawyer, Arlington DUI Lawyer, Prince William DUI Lawyer
Justin Ervin is a criminal defense and immigration attorney who practices in Northern Virginia.
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