Drunk Driving Defense Attorney Serving Northern Virginia
DWI Cases are Complex, Only an Experienced Attorney Can Help
It is important to understand that if you have been arrested for DWI/DUI you are not alone. Approximately 3,000 people a year are arrested for DWI, DUI, or drunk driving in Fairfax County, Virginia alone. It is critical to understand that just because a person has been charged with DWI, it does not mean that they are guilty or will be found guilty.
The punishments for DWI and DUI in Fairfax County and Northern Virginia can be severe. You should meet with an experienced Fairfax, Virginia DUI/DUI/drunk driving lawyer to review the facts and circumstances of your case which resulted in the police officer making an arrest. Based upon these facts, an experienced DWI/DUI attorney at Manikas Law LLC will examine the scientific, factual, and legal issues that might affect your DUI or DWI case.
At Manikas Law LLC, former prosecutor Kyle G. Manikas will look for weaknesses in your DWI case. As we prepare for your hearing in Fairfax County or another court in Northern Virginia, we will be ready to present all pertinent legal and factual arguments to the prosecutor (Commonwealth’s Attorney). If necessary, we will take the case to a judge or jury. Depending upon the facts, an attorney at Manikas Law LLC may be able to persuade the prosecutor to reduce the charges or minimize the amount of fines, license suspension or jail time. If this proves unsuccessful, we will be ready to go to trial and have the prosecutor attempt to prove your case beyond a reasonable doubt.
Manikas Law LLC strongly advises that you consult with a lawyer that has substantial experience with DUI and DWI in Fairfax or other counties in Northern Virginia. Do not rely solely upon information found on the internet.
An experienced Fairfax & Northern Virginia DUI/DWI traffic defense attorney can make a substantial difference. This is true whether a person faces felony DWI charges, DWI manslaughter, a DWI accident case, or just a first offense DWI. At Manikas Law LLC our clients have the advantage of a former prosecutor on their side that has handled thousands of DWI and DUI cases. Having handled thousands of a particular type of case, such as DWI, gives a former prosecutor insight, experience, and judgment that cannot be gained by a defense attorney, even over many years of practice. It is a perspective that puts former prosecutors at a distinct advantage in handling your case.
9 Issues and Potential Defenses to Consider in Every Fairfax and Northern Virginia DWI/DUI Case
This section is not intended to provide a comprehensive list of every issue or defense that can or should be explored in defending a DWI, DUI, or drunk driving case in Virginia. Not only would should such a list be voluminous, but more significantly, every case is different and has different facts. Sometimes a defense can be found in a given case based upon the unique manner in which tests were conducted, blood was processed, or the arrest was made. Therefore, there is no such all inclusive list. Any good Fairfax and Northern Virginia DWI/DUI traffic defense lawyer must be on the lookout for new issues to raise as defenses in any given case.
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Problems With the Stop / Lack of Reasonable Suspicion
Under Fourth Amendment jurisprudence, an officer must have a “reasonable articulable suspicion” before he or she can stop a citizen. Violation of this principle requires that the evidence resulting from the stop be suppressed and that the case be dismissed (if there is insufficient evidence to go forward). There is a body of case law from both state and federal courts that provides guidance as to the appropriate factors an officer may base a stop upon. A mere hunch or general observation is not enough. An officer’s observations that can be described as ambiguous will not be enough. Many times, officers are looking for the following factors when making a stop for DUI / DWI:
- Operating a motor vehicle at night without the headlights being turned on;
- Operating a motor vehicle at night with the high beam lights on at all times;
- Failing to use turn signals when making a turn;
- Failure to turn off turn signals after a turn is made;
- Speeding;
- Slow speed in areas where it is not logical;
- Weaving to and from upon the highway; and
- Sudden and short braking due to slow reactions.
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Problems with the Arrest – Lack of Probable Cause
Even if an officer has “reasonable suspicion” to stop a driver, thereafter he must observe sufficient facts to support the existence of probable cause before he can properly arrest the driver for DUI / DWI / Drunk Driving / Driving Under the Influence. Upon a proper motion by defense counsel, the prosecutor must present sufficient evidence to the court to establish that the officer had probable cause to arrest. Absent such a showing, the breath certificate and any evidence obtained after the invalid arrest must be suppressed (excluded).
An officer’s probable cause is usually based upon driving behavior prior to the stop (although, there is often no driving behavior observed in many DWI / DUI cases), field sobriety testing (see below), a preliminary breath test reading (see below), and the officer’s general observations about the driver, such as the driver’s demeanor. If the totality of these observations and factors does not amount to probable cause, the evidence obtained after the arrest will be suppressed. This, of course, assumes that the proper motion and legal argument is made by defense counsel. Absent such argument, the judge will not raise the issue for you.
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Faulty Application of Field Sobriety Tests
To draw any meaningful conclusions from the results of field sobriety tests administered on the side of the road, an officer must be properly trained in administering the tests and must actually administer the tests correctly. If there is a breakdown in the procedure, the results can be called into question in a Fairfax or Northern Virginia DUI / DWI / drunk driving / driving under the influence case. The National Highway Traffic Safety Administration (NHTSA), which developed some of the field sobriety tests currently used, prepared guidelines that govern the administration of field sobriety tests. The guidelines specify the precise manner under which the tests much be given. Absent compliance with these standards, the results of the tests are questionable. This can be fertile ground for cross-examination at trial.
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Challenging the Horizontal Gaze Nystagmus (HGN) Field Sobriety Test
The HGN test measures the involuntary jerking of the eye that increases when a person is impaired by alcohol. While it is considered by some to be an accurate test, it is the test most excluded from evidence during hearings and trials. In order to get the results of this test before the judge or jury in a Fairfax or Northern Virginia DUI / DWI / drunk driving / driving under the influence case, the prosecutor must establish a proper evidentiary foundation for the admissibility of the test. Given the state of the law, and the science underlying the HGN test, it is nearly impossible for a prosecutor to do this without an expert. Testifying officers simply do not have the scientific or medical training and background to provide this foundation. As a prosecutor, I never once encountered a scenario where a judge, when presented with the proper objection and legal argument, allowed an HGN test into evidence.
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Challenging the Preliminary Breath Test (PBT)
Many times, an officer will offer the driver a preliminary breath test (PBT) on the side of the road before making a decision on whether to arrest for DUI / DWI / Drunk Driving / Driving Under the Influence. The result of this test cannot be used as substantive evidence against the driver in the case, but can be used by the officer to establish probable cause to arrest.
However, it is sometimes possible to prevent the prosecution from using the PBT to establish probable cause at trial. PBT devices must be maintained pursuant to the manufacturer’s instructions and procedures and must have an error rate less than 10% according to provisions in the Virginia Administrative Code (VAC). There are also additional requirements related to proper use of PBTs in the VAC. However, I have never encountered an officer that was aware of this information because it is something that usually is not asked of them.
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Problems with the Official Breath Test Machine
There is a laundry list of potential technical problems with the results of the official breath test conducted at the station or Adult Detention Center (which is different than the PBT offered on the side of the road). Virginia recently replaced all of its Intoxilyzer 5000 machines with the ER/IR II machine. The ER/IR II machine uses both an electro-chemical and infrared mechanism. The infrared mechanism does not measure ethanol (alcohol), it simply verifies that the breath sample contains ethanol. Once this verification occurs, a fuel cell in the machine uses an electro-chemical mechanism to measure the amount of ethanol in the breath sample. There are many things that can interfere with the results from a breath test machine, including but not limited to: (1) radio frequency interference (RFI); (2) residual mouth alcohol; (3) higher than normal mouth temperatures; (4) GERD/Acid Reflux; (5) problems with the slope detector on the machine; and (6) fuel cell drift, among others. Also, although it occurs less frequently now that all of the machines in Virginia have recently been replaced with new machines, machines are occasionally repaired or serviced. If this happens, the machine will need to be tested before results from that machine can be accepted as valid. If not, the results may be inadmissible.
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Blood Test Cases – Problems with Statutory Compliance
Blood test cases can be a nightmare for prosecutors in DUI / DWI / Drunk Driving / Driving Under the Influence cases. There is a long list of foundational requirements set forth in the Virginia Code that prosecutors must comply with in order to get the results of a blood test admitted into evidence.
The person drawing the blood must have a certain background, the person must be designated by an order of the circuit court (and the prosecutor needs to have this order at trial), and the blood must be drawn, packaged, and processed in a very specific way. Failure on the part of the prosecutor to lay a proper evidentiary foundation in these areas can result in the blood alcohol result not being allowed into evidence – assuming the defense attorney makes the proper objections.
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Arrest Not Within 3 Hours of Last Driving
In order for the prosecutor to get the results of a breath or blood test into evidence in a Fairfax or Northern Virginia DUI / DWI / drunk driving / driving under the influence case, he must establish that the driver was arrested within three hours of last operating the vehicle. This seems simple enough, but in some cases it can be major hurdle for the prosecution. For instance, in cases where there is a single car accident or an anonymous tip from a citizen, the officer may never see the driver operating the vehicle. Therefore, the government has no proof when the vehicle was last operated. Accordingly, the test results are not admissible, if a proper objection is made and articulated.
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Rising Blood Alcohol Level (BAC) Defense
This argument commonly referred to as the "relation back" or "rising curve/BAC" defense argument, acknowledges that under Virginia law, the results of a breath test are rebuttable. In other words, if a person's BAC is .08 at the time of the test, Virginia law creates a rebuttable permissible inference/presumption that it was also a .08 at the time of driving. As mentioned, this inference/presumption is rebuttable. That doesn't mean that the burden of proof shifts to the defendant, but the burden of production of evidence does shift to the defendant on this issue once a BAC of .08 of more is shown. Through the use of an expert witness, many times it is possible to present evidence that based upon when a person drank, what they drank, what they ate, when the ate, their height and weight, and when the test was conducted that their BAC was below the legal limit at the time of driving even though it was above the legal limit when they were tested two to three hours later. Where applicable, this is a powerful defense and is very persuasive to both judges and jurors.
For additional information, review our DWI/DUI pages for additional information including DWI FAQs and DWI penalties.
As noted above, these are just some of the issues your attorney should explore. Regardless of who you hire, you should be sure you have an attorney that has the intent and capability to explore every issue in your case.
Contact an Experienced Fairfax & Northern Virginia DWI/DUI Defense Attorney
Call for a free consultation today if you have been charged with DWI/DUI/drunk driving or refusal in Fairfax County or Northern Virginia. Manikas Law LLC is located in Fairfax, Virginia. Contact us today by calling 703-873-7473. For toll-free assistance, call 888-503-8075.
