Blue Lights In The Rearview

Barry Randolph Koch

With the publicized arrest of the former Norfolk Commonwealth’s Attorney for DUI and the various commentaries that occurred in the newspaper about the arrest, attention was again directed to this potentially life altering charge (while in 2014 the lessons there from are still applicable today). In today’s world of enhanced and aggressive DUI enforcement by authorities in all cities, as well as the State Police, and the holidays when routine road blocks are erected, having a few glasses of wine and cocktail out to dinner can end in a nightmare before the evening is through. More and more, I am assisting clients that do not have a drinking problem, are not alcoholics, but who because of holiday exuberance or a particular celebration, or just inattention and lack of judgement on one night, see their life upended by an unexpected and unanticipated DUI arrest. Having dealt with the defense of DUI cases for over 45 years, going back to when the legal limits for intoxication was .15% blood alcohol, now currently .08% blood alcohol, a few comments are perhaps helpful and in order.

In the case of the former Norfolk Commonwealth’s Attorney, he was charged with not only driving under the influence, but with refusal to take a breath test to determine the degree of blood alcohol in his system. These are two separate and distinctive offenses. Driving under the influence of alcohol, first offence, is a Class I misdemeanor, with a maximum punishment of twelve months in jail and a fine of not more than $2,500.00. The offense of refusal to take a breath or blood test is a civil penalty that carries with it no fine but the requirement that an individual’s driver’s license is suspended for a period of one year and no restricted license can be granted. This results in the anomaly that someone who is charged with DUI but refuses the blood or breath test may avoid conviction on the DUI charge but receive the penalty for refusal, which is the loss of the privilege to drive for one year without the ability to obtain a restricted license. This is what ultimately happened to the former Norfolk Commonwealth’s Attorney who prevailed on the DUI charge on appeal but still lost his license to drive for a year without the ability to obtain a restricted license. For most people, the loss of their driving privileges for a year and the attendant consequences can be more severe than the penalty of being convicted of DUI, if they have to drive to maintain their job, have children that require transportation, or need to assist other family members. The penalty is most crushing on single individuals, obviously.

I don’t know how many times I have been confronted in initial consultations for a client charged with a DUI and refusal to hear from the client that “Oh, I thought that it was best to refuse”. In order to make a determination on whether or not someone should refuse the blood or breath test, one needs to understand the consequences. Under today’s DUI statute, the police officer must have probable cause to stop and probable cause to arrest and those are the two areas where DUI defense focuses. Probable cause to stop means that the person’s operation of the motor vehicle in some manner leads the police to reasonably believe that the person is either under the influence of alcohol or otherwise violating a traffic law which permits a traffic stop. Once the stop has occurred, or in the case of a road block, if a person exhibits attributes of intoxication, such as a strong odor of alcohol about their person, blood shot eyes, or an inability to recite dates and times properly when questioned by the police officer, the officer then proceeds to the next point to ask the person to perform coordination tests and generally a preliminary breath test to determine if the person has alcohol of some amount in their system. While the preliminary breath test cannot be used adverse to the person permitting its taking, it can be utilized in showing that the officer had probable cause to proceed further with the arrest. The preliminary breath test is not mandatory and can be refused without penalty.

If the person fails the perform properly on the coordination test and/or the preliminary breath test reflects a blood alcohol reading in excess of .08, the police then generally proceed to request that they take a formal breath test and/or blood test. The option is in the discretion of the police officer, not the arrested, and he reads to a driver his/her rights under the Virginia implied consent law. That law, which gives rise to the refusal offense, is the law that provides that by operating a motor vehicle on the highway in Virginia, as a condition of that operation, you have consented to have samples of your blood, breath, or both (the option to choose one or both is solely up to the officer not the accused), taken to determine the drug or alcohol content of your blood. If the degree of intoxication is .08 but less than .15, all the standard first offense DUI penalties are imposed. That is, the loss of your privilege to drive for a year (subject to the granting of a restricted driving permit), and the alternative now for a reduced restriction period if an alcohol sensor is installed on the vehicle, the requirement that you attend the ASAP program and successfully complete it, and that you pay such fines and costs that are imposed by the Court, which can be up to $2500.00. The Court can also impose a jail sentence for up to twelve months but normally such jail time is suspended. If your blood alcohol is .15 but less than .20, there is a mandatory five days in jail that cannot be suspended by the Court and if it is .20 or greater, it is a mandatory ten days in jail.

With this information, lets again look at the question, should I take the test or refuse it. My advice generally is that you want to take the test, both the preliminary test, as well as the formal test, in most cases. If you have not had a lot to drink, done well on the coordination test, taking the preliminary breath test if it shows that your blood alcohol is under .08 will most likely lead to the police officer releasing you and not charging you with DUI. Furthermore, someone who has what they call a rising BAC, that is the alcohol level in their blood is rising because they are stopped soon after they have imbibed, can generate a preliminary breath test significantly lower than their blood alcohol will be when they get to the police station for the formal breath test. With the requirement for mandatory jail time if your blood alcohol is equal or exceeds .15, judges will generally allow introduction of the preliminary breath test if it shows a blood alcohol of less than .15 in determining whether or not the mandatory jail time will be imposed, and generally, under those circumstances, will not impose the mandatory jail time. Furthermore, the person is not faced with a refusal charge, which carries with it the loss of your driving privileges and no ability for a restricted license, wherein in all cases with a first offense DUI, the court will generally grant a restricted license for a variety of reasons, including to and from work, and while one is at work, attending church services, transportation of children under custody orders, transportation of older family members, and for medical appointments, as well as obviously attending all the required activities of the ASAP program.

In my opinion, the only time when refusal would be warranted is to avoid the imposition of enhanced jail time when someone is knowingly greatly intoxicated and they may blow a blood alcohol level in excess of .15, or for that matter, .20. Under those circumstances, the court will permit a guilty plea of first offense DUI and will not impose any jail time and will dismiss the refusal charge. There are exceptions and some judges under these circumstances will insist on some jail time, thinking the person deliberately refused the test to avoid the determination that their blood alcohol exceeded the limits that would require incarceration.

I hope this explanation is helpful for anyone facing this unfortunate situation so they can make an informed decision on whether or not they should refuse a blood or breath test. If you find yourself charged with DUI, you need an attorney experienced in DUI defense as this can make this unfortunate experience at least manageable and many times can save you an extended jail sentence.