Virginia Criminal Defense Attorney
If you are facing a second offense DUI in Fairfax, Virginia the following is what you should know according to a Fairfax DUI lawyer. To discuss your case in more detail call and schedule a free consultation today.
Second offense DUI charges are misdemeanors. They are first held in the General District Court, just like first time DUI offenses. The General District Court is a court not of record, meaning that there is no transcript. There are no juries in that courtroom. It’s a judge-only courtroom.
If you have a trial on the General District Court, it will be heard by a judge. If you aren’t happy with the outcome of your DUI case in the General District Court, you have an automatic right to appeal your case to the Circuit Court. In Circuit Court, you have a right to a trial “de novo” which means that it is a entirely new trial and the first trial cannot considered at all in the second trial in Circuit Court. You also have right to have a jury hear your case on appeal in Circuit Court.
Prosecutors handle all DUI offenses vigorously whether it’s the first, second, third or tenth. That being said, of course, it is human nature to treat a second offense DUI more severely than a first offense. Prosecutors are uniquely concerned about repeat offenders because to them it means, first of all, that the person has not learned their lesson from the first conviction, and prosecutors believe that they might again drive while intoxicated if they aren’t harshly punished the second time around. And because DUI is an offense that can hurt or kill someone, the prosecutor is concerned for the potential that a second offender will go out again and drive under the influence if they don’t learn their lesson.
For that reason, prosecutors treat these offenses very seriously. They are unlikely to break them down to reduced charges. They are likely to use all possible resources to prosecute someone who’s charged with second offense DUI and to punish them according to the statute, if not more severely.
Building a defense for a second offense DUI is very similar to building a defense for a first offense DUI. In both cases, you will be ensuring that the police acted properly. If they have done something wrong, your attorney should be moving to suppress evidence that was obtained in violation of the Constitution. If there wasn’t reasonable suspicion to stop the vehicle or there wasn’t probable cause to place you under arrest, the evidence of intoxication must be suppressed and excluded from the trial.
Additionally, your attorney will be looking to see whether the field sobriety tests were done appropriately by the police and whether your performance on them was actually indicative of intoxication. There are certain ways police are trained to conduct field tests, and if they vary from that training it can be a basis for building a defense. Your attorney should also be looking to determine whether there were any problems with the Intoximeter machine that is used to measure your blood alcohol content. There are numerous protocols that must be followed in order for the reasons to be admissible and a good attorney will be able to spot any problems with the machine that might allow the results to be excluded. All of these are potential defenses.
The main primary defense that a defense attorney looks for in a second offense DUI that they wouldn’t in a first offense DUI is attacking the prior conviction. The prior conviction will be proved by the Commonwealth by producing a copy of the previous conviction at trial. If there is anything wrong with the conviction, for example, the judge forgot to check a box or the warrant doesn’t accurately reflect your name and date of birth, then your attorney may be able to keep the prior conviction out of court. Additionally, if the prior DUI conviction is from another state other than Virginia, it can be attacked for not being “substantially similar”, meaning that the law in the other state is not similar enough to the DUI law in Virginia to truly be considered a prior DUI conviction for purposes of a DUI-second. These problems are things your attorney should be looking for if you are charged with a DUI-second offense.