Virginia Criminal Defense Attorney
Although DUI’s tend to be one of the most commonly charged offenses, there are still a number of myths and misconceptions regarding arrests and how to give yourself the best chance at beating your case. Below, are some of the most common myths people about DUI arrests and whether or not they are true. To learn more or discuss the specifics of your case, call and schedule a consultation with an Alexandria DUI lawyer today.
Unless you have had absolutely no alcohol to drink, I would never advise taking the PBT to show the officer you are sober enough to drive. Even if you think you are not drunk, the chance that your PBT will be higher than you think makes the risk not worth it.
Additionally, because the PBT is inherently somewhat unreliable (that’s why it’s generally not admissible as evidence of guilt), the machine could err and show a higher BAC than you actually have. If that happens, the police will use it against you, and it can come back to haunt you later in the course of your trial or case. Unless you have had absolutely nothing at all to drink, blowing into the machine is probably a mistake since it can give the police grounds to arrest you.
There are two different types of breath test devices. The initial test the police officers use at the scene of the traffic stop or during an initial interaction is called the preliminary breath test (PBT), and that typically is not very reliable. In fact, it’s so unreliable that the courts will not use it as evidence of your guilt in a trial. However, they can use it as evidence in a probable cause determination.
The more reliable machine is the second type of breath test device: this is the Breathalyzer machine, which is the device you blow into back at the precinct. It’s checked and maintained by the Department of Forensics Science, which includes calibration every six months, and usually remains up to date. Courts accept readings from these devices as accurate. If you blow into the Breathalyzer and the number is high or above the legal limit, it makes a very tough case for your defense attorney.
In Virginia, it doesn’t really matter whether BAC is a reliable indicator of impairment because you can still be convicted of DUI simply for driving with a BAC above the legal limit.
There are two ways that you can be convicted of DUI in Virginia: either showing that you’re impaired by alcohol or blowing above the legal limit, even if that BAC doesn’t result in obvious impairment. If you blow a .08 and you show absolutely no signs of intoxication, you can still be convicted of DUI because Virginia says you can’t drive with a BAC above .08. It’s not necessarily correlated with impairment, although it does tend to be that way; typically, people with higher BACs are more likely to show signs of impairment. But showing impairment is not necessary to charge or convict someone of DUI in Virginia because there are two separate grounds for a DUI charge: one is impairment and the other is driving with a BAC above a .08.
Officers can absolutely justify a DUI arrest even if it turns out that you were not drunk. You do not have to be completely wasted for police to justify a DUI arrest, they simply need probable cause to believe that you’re impaired, which may be based upon observations that they make regarding your speech, motor skills, coordination, driving behavior, disposition and/or general manners. It’s a very low standard because they don’t need to show that you’re falling down drunk. Having a .08 BAC is a fairly low threshold, and if there’s alcohol on your system such that there could be some impairment, that should be enough. Officers do not need to justify the arrest by showing that you were extremely intoxicated.
The answer to this question depends on various factors, especially since “slightly buzzed” for one person might mean something different for someone else. In general, police are trained to look for people who are under the influence or impaired by alcohol, and you do not need to be falling down drunk to be arrested or convicted of DUI in Virginia. Police are looking for certain signs, which can be subtle. If your slight buzz manifests itself in a poor performance during a field sobriety test, then you can be arrested.
Additionally, investigators take some time speaking with you at the scene of the stop, so if you consumed alcohol and you’re only feeling slightly buzzed, during the period of time you are speaking with the officers, your BAC level can actually rise and that can turn into higher BAC levels at the station, and more indicators of intoxication and impairment. In general, police know what they’re looking for, and they don’t have to have much to arrest you for DUI. They’re looking for even the slightest impairment by alcohol, which means that you do not have to be wasted and even a slight buzz can be enough to have you arrested, charged and convicted.
You absolutely can be arrested for DUI in your own garage or driveway. You can be convicted of DUI on any private or public roadway, and that includes your own property. If you are intoxicated in a car, whether you’re on a public road or not, you can be convicted of DUI. There are certain provisions that apply to public roads that do not apply to private roads, particularly the implied consent law, but in general, you can be convicted of a DUI even if you stay in your own driveway or garage.