Tuesday, November 22, 2011

Successful Defenses to Virginia DWI/DUI

A November 7, 2011 article in the Fairfax News shows that “some 32,760 drunken driving arrests were made across Virginia in 2010, which resulted in 29,063 convictions.” Based upon these statistics, the statewide conviction rate for individuals charged with DWI is approximately 88.7%. This, of course, begs the question: what happens in the other 11.3% of cases.

Presumably, some of the 3,697 remaining cases resulted in plea bargains to lesser offenses such as reckless driving. Others were certainly dismissed after trial upon a finding of not guilty. How did these individuals manage to defy the odds and avoid a conviction for DWI after being charged?

There are a number of reasons why an individual may be found not guilty of a DWI. The situation may be such that the individual charged with DWI was in an accident, the police did not witness the accident and the other driver involved in the accident fails to appear in court. In this situation, if the defendant did not make any statements, there is no evidence that the defendant was driving the vehicle.

In order to stop a vehicle on the highways, police must have reasonable suspicion that the vehicle is involved in criminal activity or has committed a traffic violation. If the police stop a vehicle because they have nothing more than a hunch that the driver may be intoxicated, the traffic stop itself is unlawful and everything that follows will be suppressed by a court, including the arrest for DWI.

In order to arrest an individual, police must have probable cause to believe that the individual has committed an offense. Typically, in the context of DWI arrests, this decision is based upon driving behavior and field sobriety tests. Some officers will also utilize field (or preliminary) breath testing (“PBT”). If an individual performs well on field sobriety tests and the officer makes a decision to arrest based upon a PBT result, that arrest may be unlawful if the PBT was not properly administered and the individual was not properly advised of their rights regarding the PBT.

Sometimes, even if the field sobriety tests do give rise to probable cause for the arrest, they are not sufficient, by themselves, to prove beyond a reasonable doubt that an individual was driving while intoxicated. If the defendant refuses a station breath test and the field tests are marginal, there may be insufficient evidence to find the defendant guilty of DWI beyond a reasonable doubt.

Other issues that could result in acquittals include unconstitutionally deployed checkpoints, problems with breath analysis machines, improper administration of implied consent laws and a host of constitutional issues regarding the search and seizure of individuals on the highways.

At Gross & Romanick, we pride ourselves on zealous defense of individuals charged with serious traffic offenses, including DWI. We are well versed in all the issues that can result in an acquittal or a reduction to a lesser offense. In 2011 (through November 22), clients of Gross & Romanick, P.C., on average, bested the statewide conviction rate by over 25%. More specifically, 40% of Gross & Romanick's DWI clients were not convicted of a DWI. In 2010, the conviction rate for clients of Gross & Romanick was closer to the statewide average, but over half of those individuals were charged with an enhanced DWI and were convicted of something less than their original charge.

An enhanced DWI charge is a DWI charge that is somehow more serious than a standard DWI charge. If a BAC is over .15, there is mandatory jail time and a requirement for an ignition interlock device. An enhanced DWI charge also includes situations where individuals are charged with a 2nd or subsequent offense within the past 10 years. In situations where individuals have been charged with enhanced DWI, Gross & Romanick has been very successful in obtaining a reduction of the charge to a 1st offense or obtaining a reduction of the BAC.

There are, obviously, a great many factors that influence the results of a particular case: the presence of reasonable suspicion for the traffic stop, the existence of probable cause to arrest, maintenance records for breath machines and the presence of any of the multitude of issues discussed in this article as well as some issues that are beyond the scope of this article. Every case is different and past results cannot predict future results but one cannot help but wonder if the statewide conviction rate would be any lower if some of those 29,063 individuals had retained experienced defense counsel such as the attorneys at Gross & Romanick, P.C. If you have been charged with a DWI, you need a lawyer. Call us at 703-273-1400 to set up an appointment.