What Constitutes Driving For DUI Purposes?
Under Virginia law, an operator or a driver means: “every person who either (i) drives or is in actual physical control of a motor vehicle on a highway or (ii) is exercising control over or steering a vehicle being towed by a motor vehicle.” A Virginia Supreme Court judge had recently reiterated: “any individual who is in actual physical control of a vehicle is an operator.”
Virginia courts have established the rule that when an intoxicated person is seated behind the steering wheel of a motor vehicle on a public highway and the key is in the ignition switch, he is in actual physical control of the vehicle and, therefore, is guilty of operating the vehicle while under the influence of alcohol within the meaning of Code § 18.2-266.
Based on this definition and a variety of Virginia Supreme Court decisions, Virginia police officers will charge you with a DUI even when you are not actually driving your vehicle. This includes: falling asleep behind the wheel of a parked car while in the driver’s seat with the keys in the ignition, just listening to the radio in the driver’s seat while the car is on, etc.
Virginia Field Sobriety Tests
After you are pulled over, if the officer has reason to believe that you may be intoxicated, he or she will ask you to perform field sobriety tests. Generally, officers do not possess probable cause to arrest you for DUI at the time that they pull you over. However, an extended interaction with police, including the performance of these field sobriety tests can often provide the evidence they need to legally justify an arrest. Consequently, it is very important to be aware of possible field sobriety tests, the voluntary nature of these tests, and why the police use them. These tests are voluntary, not required; but most clients perform the tests anyway, because everybody tries to be as cooperative as possible. (The problem here is that by performing field sobriety tests, you are providing the officer with evidence that he can use against you in court. Had you not performed the tests, the officer would not have had this evidence to use against you in court, and may not have had probable cause to arrest you for a DWI.)
Generally, officers in Northern Virginia implement the following tests while investigating a subject for drunk driving, in addition to asking you to count backward, perform the alphabet without singing, and performing the finger touch test.
HGN Eye Test
“Horizontal Gaze Nystagmus” (“HGN”) is a physical sign of intoxication that involves the involuntary jerking of an eye. In the administration of this test, the officer instructs the suspect to follow (with his eyes) a stimulus to the left and to the right. The officer notes the angle at which the pupil starts to exhibit “nystagmus” (an involuntary jerking of the eye). Early onset of nystagmus (at or before a 45-degree angle) is a clue associated with a high blood alcohol concentration. is an involuntary jerking of the eye that occurs naturally as the eyes gaze to the side. However, this type of HGN result may also indicate the consumption of seizure medications, phencyclidine, a variety of inhalants, barbiturates, and other depressants.
Walk and Turn
The Walk-and-Turn test and One-Leg Stand test are “divided attention” tests that, according to the government, are easily performed by most unimpaired people. They require a suspect to listen to and follow instructions while performing simple physical movements. Impaired persons have difficulty with tasks requiring their attention to be divided between simple mental and physical exercises. (Personally, I have difficulty performing these tests while sober and while knowing all of the instructions after years of repetitive training.)
In the Walk-and-Turn test, the subject is directed to take nine steps, heel-to-toe, along a straight line. After taking the steps, the suspect must turn on one foot and return in the same manner in the opposite direction. The examiner looks for 8 indicators of impairment: if the suspect cannot keep balance while listening to the instructions, begins before the instructions are finished, stops while walking to regain balance, does not touch heel-to-toe, steps off the line, uses arms to balance, makes an improper turn, or takes an incorrect number of steps.
One Leg Stand
In the One-Leg Stand test, the suspect is instructed to stand with one foot approximately six inches off the ground and count aloud until told to put the foot down. The officer times the subject for 30 seconds. The officer looks for four indicators of impairment, including swaying while balancing, using arms to balance, hoping to maintain balance, and putting the foot down.
Standard DUI Penalties For First Offense:
For a first offense, Virginia DUI penalties are still considerably harsh. DUI convictions will always include a probationary period for one year, completion of alcohol treatment classes provided by ASAP, a fine that tends to run between $250-$500, loss of license for 12 months, jail incarceration (with some or all of that time suspended), and installation of an ignition interlock device if the defendant applies for a restricted driver’s license.
DUI Penalties With a Prior DUI Conviction
A prior DUI conviction will have serious implications on any subsequent offense. In general, a prior DUI conviction will be used to increase your DUI from a misdemeanor to a felony if it is a third or subsequent offense within 10 years, impose higher penalties for your new offense, and potentially implicate the mandatory sentencing requirements for your new conviction.
What is Virginia’s Implied Consent Law?
You may have heard or read about Virginia’s “implied consent law,” without really understanding what it refers to. In Virginia, if you drive a vehicle on a public highway (which is any publicly accessible road), you are assumed to have impliedly consented to a blood or breath test is performed if you are ever arrested for a DUI. Consequently, you can and likely will be punished with another charge if you refuse to submit to take these sobriety tests. Virginia Code Section 18.2-268.3 makes it illegal to “unreasonably refuse” to have samples of your blood or breath taken for chemical analysis to determine the alcohol or drug content after a drunk driving arrest has occurred.
While a first refusal crime is considered a civil, rather than criminal offense, the penalties are still severe. The refusal charge requires a 1-year driver’s license suspension. A 2nd or 3rd refusal causes the offense to be treated as a criminal matter, and can often result in jail time.
