Visit Technical DUI Defenses for a more comprehensive discussion of Virginia DUI law and procedure.
Albo & Oblon lawyer, Michael May, talks in "layman's terms" about Virginia DUI defense law.
How can a lawyer really win a DUI / DWI case? Aren't these cases straight forward?
There are numerous defenses to many, many cases. While, superficially, many cases look similar to one another, the details are often different. If you really want to learn many of the latest defenses in detail, buy the manual that we helped write for other lawyers. You can find it at Virginia CLE. Ask for the "Defense of Serious Traffic Cases in Virginia" manual.
THE BREATH TEST:
If a chemical test showing blood alcohol in excess of 0.08 is admitted into evidence and unrebutted, the Defendant will normally loose. Thus, experienced defense attorneys spend most of their time attacking the tests, trying to find some flaw or problem in the way the test was administered so as to have the test excluded from trial.
The results of a breath test can be admitted into court via a certificate which recites, among other things, the results of the test, the name of the breath test operator and his qualifications, and the date and time of the test. This is generally how the Prosecutor will submit evidence of the breath test. However, if the certificate is not used, the actual breath test operator may testify in person.
The breath or blood test must be excluded from evidence, explained away, or shown to be incorrect.
As to the certificate, the law states that a blood alcohol level certificate, to be admitted, must trustworthy and that any flaws be beyond "substantial compliance." In other words, there cannot be any significant mistakes on the certificate. Any defect could render it inadmissible. As to the chemical test itself, the test is very complicated. It involves many steps that the breath test operator must perform correctly. On top of that, the machine must work properly so that it can calculate the breath alcohol level according to a complex chemical reaction and mathematical analysis. It is beyond the scope of this guide to describe every single way that a test can actually be attacked. But lawyers spend a great deal of time examining the qualifications of the breath test operator, the condition of the testing machine, and the general test procedures.
In appropriate cases, an expert witness is used to show that one's blood alcohol level was below the legal limit at the time of the driving and only rose above the legal limit after the arrest.
THE FIELD SOBRIETY TESTS AND DRIVING BEHAVIOR:
Usually, a trial will be the police officer's word against the defendant's word as to how the defendant performed on the field sobriety tests. The police officer will undoubtedly testify that the Defendant did poorly on the tests. The defense attorney concentrates on what the defendant did well. For example, the police officer may testify that the defendant on the "Walk and Turn" test did not put his heal directly in front of the toe. The defense attorney would counter by showing that even though he may not have put his heal in front of his toe, he was able to walk a straight line turn around and walk back. As to the driving behavior, not all driving behavior shows that a person is intoxicated. For example, just because a person is traveling very fast does not necessarily mean that he is intoxicated. People speed every day without having an ounce liquor or alcohol in their body. Also, swerving may be due to looking at a map or dropping something on the floor while driving.