The Law Firm of

Erin L.T. Ranney, PLLC

Attorney At Law

 
Phone:   (804) 318-1151  or (804) 212-5252
             
 

Taking criminal and traffic defense cases in Chesterfield, Colonial Heights, Richmond, Henrico, New Kent, Hanover, Caroline, Hopewell, Prince George, Dinwiddie, Petersburg, Emporia, Greensville, Sussex, and across Virginia

 

Providing counsel on family law matters, including divorce, custody, visitation, support, and adoption

 

Providing estate planning services to those in Virginia, including wills, trusts, power of attorney, and advanced medical directives

Criminal Law Spotlight - December 2016

Driving Under the Influence

Driving Under the Influence

  Driving Under the Influence is a very serious offense in Virginia.  There are many factors that play into determining whether a person is convicted of DUI and how a person will be punished for a DUI.  In 2012 there were new DUI laws that took effect and changed how the disposition of DUI is handled.  Two recent United States Supreme Court decisions also impact the law regarding blood draws and the punishment that is permissible for Refusals.  The holidays are a time with the police forces are out and particularly vigilant with regards to driving behavior.  The basic statute is:


     18.2-266. Driving motor vehicle, engine, etc., while intoxicated, etc.

It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article, (ii) while such person is under the influence of alcohol, (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, (iv) while such person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, or (v) while such person has a blood concentration of any of the following substances at a level that is equal to or greater than: (a) 0.02 milligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c) 0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood. A charge alleging a violation of this section shall support a conviction under clauses (i), (ii), (iii), (iv), or (v).

For the purposes of this article, the term "motor vehicle" includes mopeds, while operated on the public highways of this Commonwealth.

(Code 1950, 18.1-54; 1960, c. 358; 1975, cc. 14, 15; 1977, c. 637; 1984, c. 666; 1986, c. 635; 1987, c. 661; 1992, c. 830; 1994, cc. 359363; 1996, c. 439; 2005, cc. 616845.)

18.2-270. Penalty for driving while intoxicated; subsequent offense; prior conviction.

A. Except as otherwise provided herein, any person violating any provision of  18.2-266 shall be guilty of a Class 1 misdemeanor with a mandatory minimum fine of $250. If the person's blood alcohol level as indicated by the chemical test administered as provided in this article or by any other scientifically reliable chemical test performed on whole blood under circumstances reliably establishing the identity of the person who is the source of the blood and the accuracy of the results (i) was at least 0.15, but not more than 0.20, he shall be confined in jail for an additional mandatory minimum period of five days or, (ii) if the level was more than 0.20, for an additional mandatory minimum period of 10 days.

B. 1. Any person convicted of a second offense committed within less than five years after a prior offense under  18.2-266 shall upon conviction of the second offense be punished by a mandatory minimum fine of $500 and by confinement in jail for not less than one month nor more than one year. Twenty days of such confinement shall be a mandatory minimum sentence.

2. Any person convicted of a second offense committed within a period of five to 10 years of a prior offense under  18.2-266 shall upon conviction of the second offense be punished by a mandatory minimum fine of $500 and by confinement in jail for not less than one month. Ten days of such confinement shall be a mandatory minimum sentence.

3. Upon conviction of a second offense within 10 years of a prior offense, if the person's blood alcohol level as indicated by the chemical test administered as provided in this article or by any other scientifically reliable chemical test performed on whole blood under circumstances reliably establishing the identity of the person who is the source of the blood and the accuracy of the results (i) was at least 0.15, but not more than 0.20, he shall be confined in jail for an additional mandatory minimum period of 10 days or, (ii) if the level was more than 0.20, for an additional mandatory minimum period of 20 days. In addition, such person shall be fined a mandatory minimum fine of $500.

C. 1. Any person convicted of three offenses of  18.2-266 committed within a 10-year period shall upon conviction of the third offense be guilty of a Class 6 felony. The sentence of any person convicted of three offenses of  18.2-266 committed within a 10-year period shall include a mandatory minimum sentence of 90 days, unless the three offenses were committed within a five-year period, in which case the sentence shall include a mandatory minimum sentence of confinement for six months. In addition, such person shall be fined a mandatory minimum fine of $1,000.

2. The punishment of any person convicted of a fourth or subsequent offense of  18.2-266 committed within a 10-year period shall, upon conviction, include a mandatory minimum term of imprisonment of one year. In addition, such person shall be fined a mandatory minimum fine of $1,000. Unless otherwise modified by the court, the defendant shall remain on probation and under the terms of any suspended sentence for the same period as his operator's license was suspended, not to exceed three years.

3. The vehicle solely owned and operated by the accused during the commission of a felony violation of § 18.2-266 shall be subject to seizure and forfeiture. After an arrest for a felony violation of  18.2-266, the Commonwealth may file an information in accordance with  19.2-386.1. If the information is filed, the Commonwealth shall notify the Commissioner of the Department of Motor Vehicles that the property is subject to seizure. The Commissioner shall act upon such notification pursuant to the provisions for certification and notice applicable to a seizure under  19.2-375, except that the Commissioner shall serve the written notice of the seizure upon the registered owner and lienor in accordance with the requirements of  8.01-296. Any seizure shall be stayed until conviction and the exhaustion of all appeals at which time, if the information has been filed, the Commonwealth shall immediately commence seizure of the property in accordance with  19.2-386.2.

An immediate family member of the owner of any motor vehicle for which an information has been filed under this section who was not the driver at the time of the violation may petition the court in which such information was filed for the release of the motor vehicle. If the immediate family member proves by a preponderance of the evidence that his immediate family has only one motor vehicle and will suffer a substantial hardship if that motor vehicle is seized and forfeited, the court, in its discretion, may release the vehicle.

In the event the vehicle was sold to a bona fide purchaser subsequent to the arrest but prior to seizure in order to avoid seizure and forfeiture, the Commonwealth shall have a right of action against the seller for the proceeds of the sale.

D. In addition to the penalty otherwise authorized by this section or 16.1-278.9, any person convicted of a violation of 18.2-266 committed while transporting a person 17 years of age or younger shall be (i) fined an additional minimum of $500 and not more than $1,000 and (ii) sentenced to a mandatory minimum period of confinement of five days.

E. For the purpose of determining the number of offenses committed by, and the

punishment appropriate for, a person under this section, an adult conviction of any person, or finding of guilty in the case of a juvenile, under the following shall be considered a conviction of  18.2-266: (i) the provisions of  18.2-36.1 or the substantially similar laws of any other state or of the United States, (ii) the provisions of 18.2-51.418.2-266, former  18.1-54 (formerly  18-75), the ordinance of any county, city or town in this Commonwealth or the laws of any other state or of the United States substantially similar to the provisions of  18.2-51.4, or  18.2-266, or (iii) the provisions of subsection A of  46.2-341.24 or the substantially similar laws of any other state or of the United States.

F. Mandatory minimum punishments imposed pursuant to this section shall be cumulative, and mandatory minimum terms of confinement shall be served consecutively. However, in no case shall punishment imposed hereunder exceed the applicable statutory maximum Class 1 misdemeanor term of confinement or fine upon conviction of a first or second offense, or Class 6 felony term of confinement or fine upon conviction of a third or subsequent offense.

(Code 1950,  18.1-58; 1960, c. 358; 1962, c. 302; 1975, cc. 14, 15; 1982, c. 301; 1983, c. 504; 1989, c. 705; 1991, cc. 370, 710; 1992, c. 891; 1993, c. 972; 1997, c. 691; 1999, cc. 743945949987; 2000, cc. 784956958980982; 2002, c. 759; 2003, cc. 573591; 2004, cc. 461937946950957958962; 2006, cc. 82314; 2009, c. 229.)

 

Additional important sections:

 

18.2-270.1. Ignition interlock systems; penalty.

A. For purposes of this section and § 18.2-270.2:

"Commission" means the Commission on VASAP.

"Department" means the Department of Motor Vehicles.

"Ignition interlock system" means a device that (i) connects a motor vehicle ignition system to an analyzer that measures a driver's blood alcohol content; (ii) prevents a motor vehicle ignition from starting if a driver's blood alcohol content exceeds 0.02 percent; and (iii) is equipped with the ability to perform a rolling retest and to electronically log the blood alcohol content during ignition, attempted ignition and rolling retest.

"Rolling retest" means a test of the vehicle operator's blood alcohol content required at random intervals during operation of the vehicle, which triggers the sounding of the horn and flashing of lights if (i) the test indicates that the operator has a blood alcohol content which exceeds 0.02 percent or (ii) the operator fails to take the test.

B. In addition to any penalty provided by law for a conviction under 18.2-51.4 or 18.2-266 or a substantially similar ordinance of any county, city or town, any court of proper jurisdiction shall, as a condition of a restricted license, prohibit an offender from operating a motor vehicle that is not equipped with a functioning, certified ignition interlock system for any period of time not to exceed the period of license suspension and restriction, not less than six consecutive months without alcohol-related violations of the interlock requirements. The court shall, for a conviction under 18.2-51.4, a second or subsequent offense of 18.2-266 or a substantially similar ordinance of any county, city or town, or as a condition of license restoration pursuant to subsection C of 18.2-271.1 or 46.2-391, require that such a system be installed on each motor vehicle, as defined in 46.2-100, owned by or registered to the offender, in whole or in part, for such period of time. Such condition shall be in addition to any purposes for which a restricted license may be issued pursuant to 18.2-271.1. The court may order the installation of an ignition interlock system to commence immediately upon conviction. A fee of $20 to cover court and administrative costs related to the ignition interlock system shall be paid by any such offender to the clerk of the court. The court shall require the offender to install an electronic log device with the ignition interlock system on a vehicle designated by the court to measure the blood alcohol content at each attempted ignition and random rolling retest during operation of the vehicle. The offender shall be enrolled in and supervised by an alcohol safety action program pursuant to 18.2-271.1 and to conditions established by regulation under 18.2-270.2 by the Commission during the period for which the court has ordered installation of the ignition interlock system. The offender shall be further required to provide to such program, at least quarterly during the period of court ordered ignition interlock installation, a printout from such electronic log indicating the offender's blood alcohol content during such ignitions, attempted ignitions, and rolling retests, and showing attempts to circumvent or tamper with the equipment.

C. In any case in which the court requires the installation of an ignition interlock system, the court shall order the offender not to operate any motor vehicle that is not equipped with such a system for the period of time that the interlock restriction is in effect. The clerk of the court shall file with the Department of Motor Vehicles a copy of the order, which shall become a part of the offender's operator's license record maintained by the Department. The Department shall issue to the offender for the period during which the interlock restriction is imposed a restricted license which shall appropriately set forth the restrictions required by the court under this subsection and any other restrictions imposed upon the offender's driving privilege, and shall also set forth any exception granted by the court under subsection F.

D. The offender shall be ordered to provide the appropriate ASAP program, within 30 days of the effective date of the order of court, proof of the installation of the ignition interlock system. The Program shall require the offender to have the system monitored and calibrated for proper operation at least every 30 days by an entity approved by the Commission under the provisions of § 18.2-270.2 and to demonstrate proof thereof. The offender shall pay the cost of leasing or buying and monitoring and maintaining the ignition interlock system. Absent good cause shown, the court may revoke the offender's driving privilege for failing to (i) timely install such system or (ii) have the system properly monitored and calibrated.

E. No person shall start or attempt to start a motor vehicle equipped with an ignition interlock system for the purpose of providing an operable motor vehicle to a person who is prohibited under this section from operating a motor vehicle that is not equipped with an ignition interlock system. No person shall tamper with, or in any way attempt to circumvent the operation of, an ignition interlock system that has been installed in the motor vehicle of a person under this section. Except as authorized in subsection G, no person shall knowingly furnish a motor vehicle not equipped with a functioning ignition interlock system to any person prohibited under subsection B from operating any motor vehicle which is not equipped with such system. A violation of this subsection is punishable as a Class 1 misdemeanor.

F. Any person prohibited from operating a motor vehicle under subsection B may, solely in the course of his employment, operate a motor vehicle which is owned or provided by his employer without installation of an ignition interlock system, if the court expressly permits such operation as a condition of a restricted license at the request of the employer, but such person may not operate a school bus, school vehicle, or a commercial motor vehicle as defined in 46.2-341.4. This subsection shall not apply if such employer is an entity wholly or partially owned or controlled by the person otherwise prohibited from operating a vehicle without an ignition interlock system.

G. The Commission shall promulgate such regulations and forms as are necessary to implement the procedures outlined in this section.

(1995, c. 486; 1996, c. 841; 1997, c. 691; 1998, cc. 783840; 1999, c. 734; 2000, cc. 958980; 2004, c. 961; 2007, c. 686; 2008, c. 862; 2012, cc. 141570.)

 


 

Breaking it down:

- "Operate a Motor Vehicle" does not have to mean purely driving.  You need only be in physical control of a vehicle.  There has even been a case where sitting in the car and merely turning the key and trying to start the car constituted "operating" the motor vehicle.  Floyd v. Commonwealth, 2002 Va. App. LEXIS 440.

- A recent court decision held that having the keys in the "on" or "accessory" position such as to activate the radio, was sufficient to be operating the vehicle.  Nelson v. Commonwealth, 281 Va. 212 (2011).

- The blood alcohol content measurement devices have their own sets of rules.  It may be done by Intoxilyzer or by blood draw.  You do not have a right to demand that your blood alcohol be tested by blood but can request that if you can show you are unable to do the breath test.  See Code 18.2-268.2.

- If you refuse to take a blood alcohol test, you can be charged with that refusal.  This is a law called "implied consent".  The idea is that by driving on the public highways of the Commonwealth you are giving implied consent to test you for alcohol or drug impairment if there is probable cause to do so.  A refusal is a separate charge.  18.2-268.2  A recent United States Supreme Court case has mandated that refusal of a warrantless blood test may not have criminal consequences.  State law is still in flux on this issue.  

https://www.supremecourt.gov/opinions/15pdf/14-1468_8n59.pdf


- A defendant has the, "power to refuse to submit to the test, but no right to refuse it." Caldwell v. Commonwealth, 205 Va. 277 (1964).

- Notice that even without a chemical determination of the blood alcohol content a person can still be found guilty of DUI if their ability to drive or operate a motor vehicle is "impaired" by consumption of alcohol or drugs.  "Being under the influence of alcohol is established when any person has consumed enough alcoholic beverage to so affect his manner, disposition, speech, muscular movement, general appearance or behavior, as to be apparent to observation."  Moore v. Commonwealth, 2000 Va. App. LEXIS 538. 

- Recently there have been a number of cases that have examined the issue of whether a person under the influence of sleep-medications is driving under the influence or 'sleep-driving'.  As of now, the courts' position is that the defendant must prove that they were, in fact, sleep driving the entire time and that it is a form of involuntary intoxication which the defendant must prove.  See unpublished opinion:  Shortt v. Commonwealth, http://www.courts.state.va.us/opinions/opncavwp/2435094.pdf

 

- As of July 1, 2012, installation of the Ignition Interlock system is required for ANY conviction of simple DUI as a condition of having a restricted driver's license.  It must be used for 6 months with no violations.  If a person is convicted of a first DUI and does not request a restricted driver's license - then they are not required to use the Ignition Interlock.  Since most people need their license to drive at least to and form work, the net effect is that everyone will now be required to submit to the Ignition Interlock, no matter what the number on the Breathalyzer.

 

Other issues:


- Field Sobriety Tests.  FST's can have a myriad of issues in the manner they are conducted, the time frame, and the ability of the accused.  It is important that someone who is familiar with the rules of FST's review the ones that were given to you at the scene of the arrest.  NOTE: In Ramos v. Commonwealth, the Court of Appeals held that the defendant was not in custody when asked to perform field sobriety tests after a traffic stop.

- Statements:  Any statement that the accused makes about their situation may be used against them in the prosecution so long as proper procedure is followed.  This can include how many drinks consumed, when, where, and driving behavior issues.

-  Type of road.  A DUI can only be charged with driving on a public highway.  What constitutes a public highway is defined under the law.

- Driving offenses.  If an accused was initially stopped for a traffic infraction or driving behavior it is important not to neglect that piece of the case and its implications in the DUI.

- Accident cases have their own special set of rules that must be followed.  They are highly technical cases.

 


 

Remember, DUI defense is very technical and requires knowledge of the rules of DUI.   Drive safely this holiday season and use a designated driver.  However, if you are charged with a DUI or any other criminal offense call me today for a free consultation.



Driving Under the Influence Facts


Type: Misdemeanor or a felony depending on the number offense.


Maximum punishment:

Misdemeanor - 12 months in jail, $2500 fine, 1 year driving privilege suspension, 6 demerit points

Felony - 5 years in prison, $2500 fine, driving privilege suspension, demerit points.  Mandatory minimum sentences.

 

Interesting Facts:   Those under the age of 21 that are charged with DUI can be charged at a lower blood alcohol content than those over the age of 21.