Fairfax County Driving While Intoxicated

Fairfax DUI Lawyers

If you are facing a Fairfax DUI charge, call today

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Elements of the Offense

In any criminal case, the Fairfax County Commonwealth Attorney must prove every element of the offense beyond a reasonable doubt.  This standard applies to the charge of driving under the influence of alcohol (DUI) and driving under the influence of drugs (DUID) in Fairfax County.  If a judge or jury finds that the Commonwealth has not proven all of the elements of DUI or DUID beyond a reasonable doubt, the defendant must be found not guilty.

Virginia Code § 18.2-266 requires that the Commonwealth prove that the defendant (1) was driving or operating (2) a motor vehicle (3) while under the influence of alcohol or drugs. While these elements may seem straightforward at first glance, each can raise a number of issues.  For instance, if a person is pushing a broken down car, is that enough to constitute ‘operating’ a motor vehicle?  Would a riding lawn mower count as a ‘motor vehicle’?  And what if the person is under the influence of legally prescribed drugs?  It is important that you pick an experienced and knowledgeable  DUI/DUID attorney who can spot where the Commonwealth will have problems proving these elements.


The punishment for a Fairfax County driving while intoxicated or driving under the influence conviction varies drastically depending on the driver’s blood alcohol content and number of prior convictions for the same offense.  A second conviction for driving while intoxicated within a ten year period calls for a minimum of 10 days in jail, while a third results in a felony which can carry up to five years in prison.  The period of license suspension also differs greatly depending on the same factors, ranging from a year to an indefinite suspension.

Even on a first driving while intoxicated charge, if the driver is convicted of driving while at an elevated blood alcohol content level, the court must impose a mandatory minimum period of incarceration.  After July 1, 2012, all individuals convicted for driving while intoxicated will be required to install an ignition interlock device on their vehicle which tests the driver’s breath before allowing the car to start, and conducting rolling breath tests during the operation of the vehicle.  The costs of installing and maintaining the interlock device are shouldered by the driver.


Challenging Blood or Breath Alcohol Content Test Results

Defenses to the charge of driving while intoxicated vary widely depending on the circumstances of the case.  If there was a breath alcohol sample taken, the records of the machine used to analyze a driver’s breath may be requested from the Department of Forensic Science.  Depending on the history of the machine, its maintenance, and records of the test you may have arguments as to the weight a court should give to the results of that breath test or even its admissibility in court.

The location of the stop of the vehicle can also be of great significance.  While it is possible to be guilty of driving while intoxicated on private property, Virginia’s implied consent law for breath or blood tests does not apply unless the driver is on a public highway.  Depending on the circumstances of the arrest and what form of proof the government intends to introduce, this fact could be of pivotal importance in excluding the test results from your trial.

Unlawful Stops by Law Enforcement

The Constitution affords protection for individuals against an unreasonable search and seizure by law enforcement.  This extends to both the reason an officer must have for pulling a driver over and for the reason an officer must have for arresting the driver.  Depending upon the circumstances of your case, the stop of your vehicle or your arrest may not pass constitutional muster.

Expert Witness Testimony

In cases where the Commonwealth intends to admit the result of a breath or blood test into evidence, the expert testimony of a toxicology might be helpful to the driver’s defense.  It is important that your attorney understand both how these tests are conducted as well as how an individual’s health issues or medications might affect the tests or an individuals behavior so that a toxicologist can be consulted and possibly used at trial under appropriate circumstances.

Field Sobriety Tests

Police officers typically ask a suspected drunk driver to perform a number of field sobriety tests.  A suspects performance on those tests can be used both to establish probable cause for an arrest and to find the defendant guilty of driving while intoxicated.  An experienced attorney can challenge these tests through cross examination.

Administrative License Suspension

In most DUI cases, a defendant’s license will automatically be administratively suspended for a period of time that varies depending on the nature of the charge.  While the suspension is automatic, there are circumstances under which a defendant can challenge the suspension and have it rescinded.

Refusal Cases

When a driver refuses to submit to a breath or blood alcohol test, the driver will typically be charged with ‘refusal.’  This charge can be civil or criminal depending upon the defendants criminal and driving history.  If the driver has previously been convicted of a DUI or refusal, the Commonwealth may then charge the driver with criminal refusal.  If the driver has not previously been convicted of DUI or refusal, the charge will be civil.  Even a first refusal charge carries a debilitating punishment – a driver’s license suspension of one year without the possibility of receiving a restricted license to go to work, school, and for other statutorily proscribed purposes.  For a second or third refusal, the driver will be charged with a misdemeanor and if found guilty the driver’s license will be suspended for an additional three years.

Law enforcement must stick to a strict set of statutory guidelines in order to meet the requirements necessary to convict a driver of refusal.  While law enforcement will typically comply with these requirements, it is important to investigate thoroughly.

Sobriety Checkpoints

In Fairfax and elsewhere in Virginia, various law enforcement agencies, such as the Fairfax County Police Department and the Virginia State Police, utilize sobriety checkpoints to catch and arrest drunk drivers.  These checkpoints generally involve police officers setting up a roadblock, stopping drivers, and examining them for signs of intoxication.  This examination usually consists of an alcohol breath test, but the officers may also ask the driver to roadside field sobriety test – a series of activities designed to test cognitive and motor skills.  Failure to pass one or more of these tests may lead to an arrest for Driving While Intoxicated (DWI/DUI).

Sobriety checkpoints were held constitutional by the United States Supreme Court in Michigan Department of State Police v. Sitz.  The court held that the checkpoints were seizures under the 4th Amendment of the United States Constitution, but that they could be constitutional if they were reasonable seizures.

To be reasonable, the police must follow a set of guidelines set out by the courts. These guidelines attempt to balance the government’s interest in preventing drunk driving against the interest of the individual in limiting unnecessary intrusiveness.  Among other considerations, the checkpoints must be pre-planned, use a mathematical formula when selecting which vehicles to stop, and keep officer discretion to a minimum.  Fairfax County Police officers are not allowed to decide who to stop or how to perform sobriety tests, but are instead required to follow a set plan designed to keep the searches as neutral as possible.

If the police do not follow these guidelines, the Fairfax courts may consider their search unreasonable, and any evidence procured from it, including breathalyzer results, could be excluded from any evidence to be used in a DUI/DWI trial.

Each case is different and it is important to talk to an experienced attorney early in the process to determine what possible defenses you may have and to get an honest opinion as to the likely outcome and approach to your case.  In addition, some defenses can be waived or require time to prepare.  For a free consultation about your case with one of our experienced attorneys call us at 703-822-4701.

Why do we offer free consultations?

When you have been charged with a crime, it is one of the most stressful moments of your life.  Most people are just not sure what to expect and what steps they should take.  In one conversation we can usually determine what the likely outcomes of your case are what you can do today to get the best outcome possible.

We got into this line of work because we wanted to help people.  If we don’t think you need a lawyer, we will tell you so.  We hope that you will still find our consultation helpful and will consider passing our name along to friends or family who find themselves facing a criminal or traffic charge in Northern Virginia some day.

If we do think you would benefit from having a lawyer, we will tell you so.  We can tell you about our particular qualifications and experience, and we hope that you will choose us as your lawyers for your case.  



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