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Driving Under the Influence of Drugs or Alcohol

  One of the most common crimes is driving under the influence of alcohol or drugs.  Some states offer a separate crime of driving while intoxicated, but in Virginia it makes no difference.


To prove that you drove under the influence of alcohol or drugs, the state can rely on several pieces of evidence which can include the observations of the officer as well as your performance on any Field Sobriety Tests.


If you are alleged to be under the influence of alcohol, the state can rely upon scientific testing showing that your blood level was 0.08 (the legal limit) or above.  If it is  .15 or above, or if it is a second or subsequent offense, mandatory jail time is required.  Mandatory meaning that the court does not have the discretion to suspend it.


If you refuse to take a blood or breath test, a separate charge of refusal can result in a license suspension.  Unlike a DUI, you cannot get a restricted license to and from work if you are convicted of refusal.  


Nor does the refusal protect you from a conviction of the underlying DUI as the state can convict you based on the officer’s testimony alone.  That testimony will typically include references to your speech, eye appearance,  overall behavior and response on field sobriety tests.

Several Field Sobriety Tests (FSTs) are available to the officer, they can choose to test you on one or all.  


Typically they can include a walk and turn test, touching your nose, perhaps a gaze and stigmas testfor the eyes, and counting backwards or doing the alphabet backwards.  They may also give you a preliminary breath test, but those results are not admissible in court.  


Felony DUI/DUID will result  if you are driving under the influence and one or more of the following occur:

A)It is your third or subsequent offense within ten years.  There is also mandatory jail time of at least 90 days, and indefinite license suspension, or

B)If there is serious bodily injury, or

C)A death results, in which case a charge of aggravated manslaughter and up to 20 years may result.  On rare occasions, the conduct can be so outrageous that murder charges can be placed.


The ideal solution is to avoid drinking and driving.  If stopped, you do not have the right to call a lawyer before submitting to the tests.  Usually, you are better off submitting to the tests, to at least preserve your chances of a restricted license, and hope for a technical defense that would not be available if you refuse.


Gregory M. Kallen, is an attorney with 31 years of criminal law experience. A former Assistant Commonwealth Attorney in Dickenson County and former Commonwealth Attorney in Wise County, Virginia.