Do I Need A DUI Lawyer?

July 19th, 2009 at 03:02pm Under DUI Law

You’ve been arrested on a DUI charge. Now what do you do? Although most people will recommend that you hire a lawyer to represent your best interests many people do not do so, often because of shame and embarrassment. Whether or not you hire a lawyer can have a big impact on your case so you may want to think carefully before making a decision. If you do decide to hire a DUI lawyer there are several things to consider so that you find the best lawyer possible to represent you.
Because DUI laws vary among each state (http://www.duislawyer.com/stateduilaws), hire a lawyer that has expertise with the laws in the state where you were arrested. Also, hire a lawyer that specializes in DUI cases. Depending on where you live you may not be able to find a good lawyer that practices DUI law exclusively, but look for a lawyer who spends at least half of his or her time handling DUI cases. It may be tempting to hire your local lawyer who deals with a veritable buffet of issues such as DUI’s, divorce, wills, and bankruptcy, etc. but DUI law is extensive and continually changing so you will likely be much better hiring a specialist in DUI.
Before you hire a DUI lawyer, or any other type of lawyer, meet with him or her first. Most lawyers will not charge you to meet with them while you’re looking for someone to handle your case. Having a face to face meeting with your lawyer before hiring him or her is good for both the client and the attorney. You’ll want to hire someone you feel comfortable working with. A face to face meeting helps you determine whether or not you feel comfortable. It also helps the lawyer decide if he or she feels comfortable working with you and wants to take on your case.
Before going to any consultations with lawyers (and you should consult with at least two lawyers before making a decision) do some research. The yellow pages is a good place to look for a lawyer but remember that the DUI lawyer with the biggest ad is not necessarily the best lawyer for you to hire. He or she is just the person with the biggest ad. You want a lawyer with DUI expertise and experience.
The library is another good place to do research. Your local library should have a copy of the Martindale Hubbell law directory. The directory does its best to list every lawyer in the United States along with his or her area(s) of speciality. You can search the directory by either location or area of law each lawyer deals with. The directory is also available online. People you know can also be a good source of information regarding a good lawyer.
Create a list of questions you want to ask each lawyer during the consultation so you can compare each lawyer equally before deciding who you would like to hire to represent you.
A few questions you may want to have on the list you make are:
1) What percent of the cases you handle are DUI or impaired driver? (Remember that you want someone who is very familiar with the current laws in your state.)
2) What do you charge and what is your fee structure? (You’ll want to know the most you’ll have to pay as well as how much you have to pay upfront. Many DUI lawyers charge a flat fee, which is a set amount for your case whether or not it goes to trial. Some lawyers charge an hourly fee. Others have staggered fee structures that break things into phases. They may charge a flat fee up until trial. If the case goes to trial then there’s another fee to pay. If the entire fee is required upfront but you are financially unable to pay it all upfront ask if a payment arrangement can be worked out. It can’t hurt to ask. The worst answer you can get is “no.”)
3) What costs besides attorney fees will I be responsible for? (In addition to lawyer fees you may be responsible for things like court costs and filing fees).
4) Will you be the lawyer handling my case or will someone else in the firm be the primary lawyer on my case? (This question is especially important if you are consulting at a firm with several lawyers. Some people have been very frustrated when they found out the lawyer they consulted with wasn’t the lawyer who handled the majority of their case.)
These are just a few of the questions you’ll likely want to ask before deciding which DUI lawyer you want to hire.

Importantance of Choosing a Good Dui Lawyer

July 19th, 2009 at 09:02am Under DUI Law

“A Nation Without Drunk Driving.” This is a symposium that will be sponsored by Mothers Against Drunk Driving, or known as MADD as part of the International DUI (meaning Driving Under the Influence) Technology Symposium that would be held on the 19th and the 20th of this month in Albuquerque, Canada. During this symposium, the latest innovations to help out lessen the number of drunk drivers would be showcased. The list would include alcohol-detecting sensors and anklet devices. These actually test the alcohol levels in the skin so much so that the ignition on their vehicles would lock up in case they do detect that a driver is drunk. All these innovations and technologies would be presented by researchers, law enforcement officers, and criminal justice people.

If you have been arrested for DUI or DWI, it is obviously cause for concern—but not for despair. By hiring a quality defense lawyer who can protect your rights, there are a host of ways your case may be defendable. That’s why it would be a good idea to consider hiring one of America’s Top DUI and DWI Defense Attorneys now. DUI laws are quite complicated nationwide. A good lawyer is very important to help you in your defense. Good DUI lawyers are specialists in drunk-driving cases. They try only such offenses, and know the courts and the laws well. There is also a National College of DUI Defense where you can search for DUI attorneys. A good DUI lawyer can guarantee you more than just arguments in court. Since DUI laws are complicated, a good attorney can pick holes in the case against you and, with some technical help, he or she can get you out of the charge with a small penalty.

DUI laws also distinguish between drunken driving and recklessness. If the charges are reduced to recklessness, the penalties are much less severe. Another aspect of DUI defense is the DMV hearing. The DUI lawyer will have to represent you in this separately. The DUI trial and DMV hearings are separate, and you might end up with a suspended license from either trials or both. Again, a good DUI attorney is essential for the DMV hearing as well.

A drunk driving conviction is not a matter of life or death in the literal sense, but a DUI conviction or guilty plea will affect your life. The first and most obvious effect on your life by a DUI conviction is the punishment. Depending on whether you are guilty of a misdemeanor offense or a felony DUI offense, you will pay a fine, potentially lose your license to drive, possibly serve some sort of community service, and maybe serve some time in prison. The punishment escalates if you are convicted of a DUI-related offense for the second time within a certain time frame.

You want a very good DUI lawyer representing you no matter what DUI-related charge you are facing for the obvious fact that you could either actually be innocent of the DUI charges, or even if you were in-fact guilty, a good DUI attorney could have the DUI charges against you dismissed by finding flaws in police procedure and handling of the evidence, or also by finding contamination in the blood or breath tests taken. There are many factors that can affect the results of a blood or breath test. A good DUI lawyer on your side will give you your best chance at showing reasonable doubt. A good DUI lawyer will also be aware of the many potential defenses, strategies and tactics that can be used. Remember, you must be found guilty of the DUI-related offense beyond a reasonable doubt to be convicted.

Few Steps for Deciding Which Dui Attorney you Want to Hire?

July 19th, 2009 at 03:03am Under DUI Law

Types of DUI:There have been many attempts to find advance indicators of who will drive when impaired by alcohol. The most well-established predictor is prior driving under the influence (DUI) arrests. Also, people who injure others or who have been injured after drinking will have more DUI convictions (Buntain-Ricklefs et al., 1995). Those with more total moving violations and more prior convictions of all kinds have more repeat DUI offenses (Peck et al., 1994). Those who refuse blood alcohol concentration (BAC) tests or have higher BAC test results also have more DUI offenses (Marowitz, 1998). The alcohol ignition interlock is a device installed on the cars of some DUI offenders that requires a low-alcohol or alcohol-free breath sample before the ignition unlocks and allows an engine to be started. Studies in the United States and Canada have shown that the interlock reduces DUI (Beck et al., 1999; Coben and Larkin, 1999; Marques et al., 2001a; Voas et al., 1999). The interlock has also been reported to be a good predictor of DUI risk (Marques et al., 2001b). The BAC lock point for the interlock is stipulated in state or provincial law. Typical lock points range between .02% and .04%. The U.S. national guidelines (National Highway Traffic Safety Administration [NHTSA], 1992) recommend .025%; Alberta Canada uses .04%. The interlock’s recorder logs the time and result of all breath tests. The early months of interlock BAC tests predict repeat DUI offenses years later, after the interlock has been removed (Marques et al., 1999, 2001 b). A variety of DUI predictors have been studied, but, unless these are available to court or licensing authorities, they have little practical value. For example, information about drinking patterns has been shown to be predictive of DUI risk, but motor vehicle or court authorities tasked with imposing sanctions do not usually have access to this type of information. For new knowledge to usefully inform policy and lead to lower public risk exposure, it should be accessible to those who decide whether to reinstate driver’s license privileges or continue with sanctions that restrict those privileges. Personal history, adverse drinking consequences, family history of drinking, places of drinking and types of preferred beverages help researchers understand the characteristics of repeat DUI offenders but cannot sharpen sentencing decisions if this information is not in a driver’s file. Unlike some of our earlier work, all data reported here are available to sanctioning authorities in jurisdictions where the alcohol ignition interlock is in use. Alcohol is a factor in 43% of all crash costs (Miller et al., 2002), but alcohol-impaired drivers are hard to detect. Accordingly, a DUI arrest is a low-likelihood outcome relative to the prevalence of drunken driving.

The Penalties of DUI Accidents: Driving under the influence can mean driving under the influence of drugs, alcohol, or both types of substances. No matter what type of substance is used in an offense, driving under the influence can cause serious injuries and property damage. In most states, DUI (or DWI as it is called in some states) is a misdemeanor charge. But, this can change if aggravating factors are present or if you’ve had multiple convictions within a specific time period. Aggravating factors can include injuries or property damage caused by DUI accidents, having a child in the vehicle while the offense is being committed, or having a blood alcohol level that is considered extremely high. Being knowledgeable about the consequences of DUI accidents can help you to better understand DUI law and perhaps help you avoid serious criminal charges.

How to choose a DUI Attorney?Before you hire a DUI lawyer, or any other type of lawyer, meet with him or her first. Most lawyers will not charge you to meet with them while you’re looking for someone to handle your case. Having a face to face meeting with your lawyer before hiring him or her is good for both the client and the attorney. You’ll want to hire someone you feel comfortable working with. A face to face meeting helps you determine whether or not you feel comfortable. It also helps the lawyer decide if he or she feels comfortable working with you and wants to take on your case. Before going to any consultations with lawyers (and you should consult with at least two lawyers before making a decision) do some research. The yellow pages is a good place to look for a lawyer but remember that the DUI lawyer with the biggest ad is not necessarily the best lawyer for you to hire. He or she is just the person with the biggest ad. You want a lawyer with DUI expertise and experience. The library is another good place to do research. Your local library should have a copy of the Martindale Hubbell law directory. The directory does its best to list every lawyer in the United States along with his or her area(s) of speciality. You can search the directory by either location or area of law each lawyer deals with. The directory is also available online. People you know can also be a good source of information regarding a good lawyer. Create a list of questions you want to ask each lawyer during the consultation so you can compare each lawyer equally before deciding who you would like to hire to represent you. A few questions you may want to have on the list you make are:

1) What percent of the cases you handle are DUI or impaired driver? (Remember that you want someone who is very familiar with the current laws in your state.)

2) What do you charge and what is your fee structure? (You’ll want to know the most you’ll have to pay as well as how much you have to pay upfront. Many DUI lawyers charge a flat fee, which is a set amount for your case whether or not it goes to trial. Some lawyers charge an hourly fee. Others have staggered fee structures that break things into phases. They may charge a flat fee up until trial. If the case goes to trial then there’s another fee to pay. If the entire fee is required upfront but you are financially unable to pay it all upfront ask if a payment arrangement can be worked out. It can’t hurt to ask. The worst answer you can get is “no.”)

3) What costs besides attorney fees will I be responsible for? (In addition to lawyer fees you may be responsible for things like court costs and filing fees).

4) Will you be the lawyer handling my case or will someone else in the firm be the primary lawyer on my case? (This question is especially important if you are consulting at a firm with several lawyers. Some people have been very frustrated when they found out the lawyer they consulted with wasn’t the lawyer who handled the majority of their case.)

These are just a few of the questions you’ll likely want to ask before deciding which DUI lawyer you want to hire.

Dui Guilt Myth — Chapter 9

July 18th, 2009 at 09:03pm Under DUI Law

                                                                        CHAPTER 9

“I NEED TO CHOOSE A LAWYER–WHAT QUESTIONS SHOULD I ASK?”

So now you have been released. Do not wait. Now is the time to hire a lawyer who can guide you through the complex and ever changing field of DUI law. The process of preparing your case—the investigation, the motions to suppress evidence, the analysis of evidence, and more—needs to get started right away.

It is difficult to pick a lawyer, not only because there are so many out there, but also because—since you are not a lawyer yourself—you do not know what a good one looks like. What is worse is that many consumers fall prey to myths and misconceptions about lawyers and they wind up picking an attorney who is not qualified to meet their needs. Here are a few of the most common myths.

Myth #1: “All lawyers have the same experience and training.”

We already touched on this myth in chapter 1 but it is worth mentioning again. Even if a lawyer has practiced law for decades, even if he or she has a fantastic resume, even if he or she has argued cases before the Supreme Court, there is no substitute for expertise in DUI law and experience defending clients who have been arrested for DUI.

Myth #2: “If a lawyer advertises that he takes DUI cases it is because he has experience in DUI law.”

This myth is similar to the first, but it is different in an important way. You may know how important it is that the attorney has experience in DUI law, but you might assume that, because an attorney takes DUI cases, he or she has the necessary experience. As a consumer, you know that advertising is often misleading. This is no less true when it comes to advertising for lawyers.

Myth #3: “The State Bar determines whether a lawyer can advertise as a DUI lawyer.”

The reality is that there is no requirement that a lawyer must meet before the State Bar permits a lawyer to advertise as a DUI attorney. The only thing is needed is a license to practice law.

Myth #4: “All law firms will take my case to trial.”

As strange as this may seem, many law firms are not committed to taking your case as far as it needs to go reach the best outcome for you.

Myth #5: “All lawyers carry Malpractice Insurance.”

Malpractice Insurance is not required of attorneys. This means if your lawyer does not carry this coverage and he makes a mistake, you may be out of luck. It a lawyer does not carry malpractice insurance, it does not mean that he or she is confident that it will never be necessary. More likely it means that the lawyer cannot afford it.

Myth #6: “Calling a Lawyer Referral service or using internet sites that offer to find you a lawyer service is the way to find a competent lawyer.”

Lawyer Referral Services and internet sites are a nice idea, but they are far from perfect. Many do not adequately screen the attorneys they refer clients to.

Myth #7: “Lawyers who have a big ad in the Yellow Pages or a TV commercial must be successful because they can afford this advertising.”

Just because a lawyer is on TV or has a big two-page yellow page ad does not mean he or she is successful or qualified. All it means is he or she shelled out a lot of money to make people think that. TV stations and yellow page companies do not care if the lawyer is competent; all they care about is that the check clears. Is that the way you want to decide who is going to protect you and your family?

Here are a few questions you should ask in order to make an informed choice of who will represent you.

• “How many years have you been in practice?”

This will tell you much about the attorney’s potential experience. But, also ask what they have done all those years.

• “How much experience do you have representing persons who are charged with DUI?”

You should leave the attorney’s office confident that you have spoken to someone who has real expertise and experience in DUI law.

• “Do you have real experience handling a case like mine?”

You do not want a lawyer who sees your case as a new experience that he or she would like to try. You want someone with the experience necessary to do the job for you.

• “How many cases have you taken to jury trial?”

Your case might need to go to trial in order to get the outcome you deserve and it is imperative that your attorney have trial experience if it is required.

• “Who in the office will actually be handling the case and what are their qualifications?”

• “Are you covered by a legal malpractice insurance policy?”

There is really no two ways about this. Your attorney should have malpractice insurance. Malpractice insurance is just as much insurance for you as it is for your lawyer.

• “Have you ever been disciplined by the State Bar?”

You do not want a lawyer with a long disciplinary rap sheet and you deserve to know if your lawyer has been disciplined in the past.

• “What are all the potential legal costs, including investigators, experts and the like?”

The lawyer should be honest with you about what your case might cost. You want to be secure that the lawyer is not luring you in with promises of unrealistically low fees and costs.

•”What challenges do you see in my case?”

The lawyer should be able to explain to you what he or she sees as the challenges you face and what they could mean for the ultimate result.

• “How will you keep me informed about my case?”

You must feel comfortable with the attorney’s commitment to communicate with you. You should know if you would really be kept informed of developments in your case.

• “What will be the final outcome of my case?”

A good attorney will not promise you a specific result, because it is always impossible to be certain how a case will turn out. Any other answer is dishonest and unethical. A good attorney can only promise to do his or her best job in defending you.

Now you have decided on a lawyer who has offered to take your case. You have paid good money and you have entrusted the lawyer to help you. Now you need to tell your lawyer everything about your case. Everything. A common complaint among defense lawyers is that they learned a critical fact that they needed to know, not from their client, but from the prosecutor or a witness. Withholding information can only increase your chances of being convicted. But no matter what, having found an experienced attorney to represent you, you should rest assured that you are well prepared for the next phase of the process: the trial.

San Diego DUI Attorney

July 18th, 2009 at 03:02pm Under DUI Law

San Diego DUI Attorney
The best California DUI lawyer has the capability to turn the case in your favor. Toxicologists from the unit also testify as expert witnesses at DUI trials throughout San Diego County. Their are various Law Firma that specialize in defending those accused of Driving Under the Influence (DUI) and related drunk driving cases. Society and the courts have declared war on the DUI driver. You will not be granted a restricted license allowing you to drive to and from the DUI course. Each offender must complete a DUI program run by the Department of Motor Vehicles. If you have been charged with DUI, contact an attorney immediately. After several motions were filed attacking the illegal stop, the State dismissed DUI charges.
If you wait to reinstate until after your revocation period ends, proof of enrollment or completion of DUI School, and treatment, if referred, is required. First of all, owing to the experience in fighting the dui cases, a person can easily consult his case with the attorneys and can come to know about his chances of winning the case. Florida DUI attorneys and lawyers who have experience with both sides of Florida DUI law may be able to aggressively represent your case dealing with a Florida DUI. There are many dui attorneys in Florida that can easily be contacted in order to get the required help. Florida DUI penalties upon conviction are the same, regardless of the manner in which the offense is proven.
Florida DUI Law
DUI cases are among the most difficult police investigations. For third DUI offenses, a felony conviction carrying up to five years in prison is possible. Our law firm was established in the year 1979 and thus, has gathered good experience in dealing the dui cases. The operational plan will be completed and submitted to the troop commander no less than 10 days prior to the start of the DUI Checkpoint. Scott Inman would require DUI and DWI convictions be noted on drivers license. You may be offered the option of taking classes to reduce the penalties associated with your DUI or DWI. In fact, you should consider talking to several different MA or Greater Boston DUI lawyers before you decide. If you plea bargain to the criminal DUI charge, you will receive no more than a license suspension of 30 days. Hiring the best DUI lawyer MA is an appropriate action. Nearly every state has administrative licensing suspension as a part of their DWI and DUI laws. If you have caused an accident, injury or fatality while driving under the influence, DWI and DUI laws allow for much more severe consequences.
Orlando DUI Lawyer
DUI in Florida – In such cases, the relicensed driver is subject to a zero limit for 3 years following relicensing, or for as long as the person is required to use an alcohol interlock. Orlando DUI attorney may be able to move to suppress evidence against you, or even request a dismissal of the charges against you. If no prior DUI related convictions, may be eligible for hardship reinstatement after 5 years. If there are 3 or more convictions of DUI in the last 10 years, the charges can be more serious.

Dui Guilt Myth — Chapter 1

July 18th, 2009 at 09:03am Under DUI Law

Chapter 1 DWI Lawyer Bob Keefer: DUI Guilt Myth

                                              CHAPTER 1 FACT VS. FICTION—THE TRUTH ABOUT DUI

                                              CHAPTER 1

FACT VS. FICTION—THE TRUTH ABOUT DUI

Driving Under the Influence (DUI) is one of the most common criminal infractions reported, but it is also one of the most misunderstood. Among the public, and even among many attorneys, the truth about DUI is riddled with myth. The unfortunate result is that many of those who are accused of driving under the influence do not know their rights. And because they do not know their rights, they do not obtain adequate legal representation and they receive unfair and unjust penalties, regardless of whether they are guilty or innocent. Before we look at each phase of the DUI process in detail, let us begin by setting the record straight on some common and damaging misconceptions.

Myth #1: “Most people accused of DUI are guilty.”

Myth #1: “Most people accused of DUI are guilty.”

This is what we call The DUI Guilt Myth. Many people unconsciously assume that, if a person is arrested, “they must have done something wrong.” This assumption is especially widespread when it comes to DUI. Though it is understandable why someone might feel this way, this is not the way the law works. It is not the way the law should work. Being accused of a DUI is not a conviction. No matter what your situation is, if you have been accused of driving under the influence, you have every right to the fairness, justice and protection that the American legal system guarantees.

Myth #2: “These cases can’t be won.”

Myth #2: “These cases can’t be won.”

Because they hold this mistaken belief, and because they do not know their rights, many people end up pleading guilty to a DUI charge when they should have fought the flimsy evidence against them.

Myth #3: “DUI cases are just like any other criminal case.”

Myth #3: “DUI cases are just like any other criminal case.”

This couldn’t be further from the truth. DUI law is markedly different from many other areas of law. Some even say that there is a DUI exception to the Constitution. Most of the time, a police officer must have “probable cause” before pulling you over. In layman’s terms, the probable cause requirement means that an officer must have some concrete reason to believe that a person is breaking the law. While this is always true if a single officer pulls you over on the road, consider the fact that, with sobriety checkpoints, a police officer needs nothing more than for you to drive through it.

Myth #4: “A DUI is a minor offense.”

Myth #4: “A DUI is a minor offense.”

DUI laws get tougher every year. Politicians know that they can gain points among their constituents by increasing the penalties and prosecutions of DUI. Over the years, a DUI charge has become more and more serious in most States. This is yet another reason why it is so crucial that individuals understand the process and the rights they are guaranteed.

Myth #5: “Once you have seen one DUI, you have seen them all.”

Myth #5: “Once you have seen one DUI, you have seen them all.”

Every DUI case is different. One of the worst mistakes you can make —and a tragically common one— is to assume that your case is just like any other. It is not. While prosecutors must stick to a set mold to prove their case, a good defense lawyer will know how to break the mold in your favor.

Myth #6: “Any attorney can represent a person accused of DUI.”

Myth #6: “Any attorney can represent a person accused of DUI.”

This is like saying that it is fine to see podiatrist for high blood pressure. Like medicine, law is an area where it is impossible to know and do everything. There is no way for one person to have all the necessary knowledge and experience. You might know a lawyer who you are sure is competent, decent and trustworthy—all of which are important traits to look for in an attorney—but these qualities cannot substitute for experience in the area of DUI law.

www.BobKeeferLaw.com

Dui Guilt Myth — Chapter 12

July 18th, 2009 at 03:02am Under DUI Law

CHAPTER 12

“WHAT DO I NEED TO KNOW ABOUT THE LAW IN MY STATE?”

—DUI LAW IN VIRGINIA

Differences in DUI Law in Virginia from Other States

The Virginia legal system for DUI’s has several notable differences from other state these major differences will be outlined below.

DWI and DUI in Virginia are the Exact Same Offense

In most states there is a difference between DW I, “driving while intoxicated” and DUI, “driving under the influence.” For an example, in most states driving while intoxicated is a more serious offense than driving under the influence. Other states have even a third finding available such as operating while impaired or OWI.

In Virginia, there is no difference between DUI and DWI. Virginia Code Section 18.2-266 makes it illegal to drive while intoxicated or under the influence of alcohol and/or drugs.

The Virginia Code defines intoxicated as follows: “‘Intoxicated’ means a condition in which a person has drunk enough alcoholic beverages to observably affect his manner, disposition, speech, muscular movement, general appearance or behavior.”

Blood Alcohol Content (”BAC”) relates to BAC While Driving

Under Virginia DUI law, anyone driving on the highways of Virginia has, according to Virginia’s implied consent law, given their “consent” to a breath or blood tests if they are arrested for DUI. If this test results is a .08 or above, there are are significant effects in the prosecution of one’s case. One way of proving DUI, known as the “per se” law, looks at nothing but the breath result. If it is .08 or above, the person is guilty of DUI; if it is below .08, the person is not guilty of DUI. However, since Virginia looks at the BAC at the time of driving, the defendant still has the ability to present expert testimony that his BAC while driving was in fact less than a .08.

Similarly, another way of proving DUI, looks at the .08 or higher breath result as one of the pieces of evidence in the overall trial. Although the statute says that if the BAC is .08 or above, there is a “presumption” of intoxication, the Virginia Court of Appeals ruled in 2007 that such presumptions are an unconstitutional infringement upon the Constitutional guarantee of the presumption of innocence in any criminal trial unless the language is interpreted to mean that there is not a mandatory presumption of intoxication. The Virginia Court of Appeals ruled that the courts must interpret the words “shall be presumed” to mean “may be inferred.” Thus, in a DUI prosecution under this section, the judge may infer (but is no longer required to presume) that someone is intoxicated if the prosecutor proves that they were a .08 or above while driving. Again, the defendant may present evidence that in fact his actual BAC while driving was below a .08 or that the results should not be given much weight because of issues with the machine or manner of testing. If the defendant is able to do this, then the judge may not make any inference based on the breath result.

Right to New Trial on Appeal to Circuit Court- Trial de Novo

Virginia grants anyone convicted in General District Court what is called a “trial de novo” on appeal to the higher trial level court in Virginia, known as the Circuit Court. Thus, any DUI defendant in Virginia who is unhappy with the judge’s ruling or sentence in the General District Court, has the ability to appeal to the Circuit Court and as soon as the appeal is noted, the conviction of the lower court is completely wiped off his record. I like to tell my clients that it is just like taking an eraser to a blackboard, and the client is in the exact same position that they were prior to the first trial (i.e. they are presumed to be innocent and have not been convicted of DUI.) Or, to use a golf analogy, Virginia allows all DUI clients a “Mulligan” on their first DUI trial!

The trial courts rule on both fines and jail time and license suspension issues

In many states, a DUI charge leads to two separate trials. The trial in court in front of a judge who determines whether someone is guilty and what fine and/or jail time someone receives, and in administrative license hearing in front of that state’s Division of Motor Vehicles. Virginia does not have a separate hearing for the determination of the status of someone’s driver’s license. By statute, the judge has to suspend the person’s license for a specific time based on whether this is a first or subsequent offense. The judge has the authority to grant a Restricted License allowing the person to drive to work, school, alcohol education classes and certain medical and family driving.

Virginia DUI Penalties

Administrative License Suspension (ALS)

For a first DUI offense and/or breath test refusal, your driver’s license will be automatically suspended for seven days if your BAC is 0.08 percent or higher.

For a second DUI offense and/or breath test refusal, your license will be automatically suspended for 60 days or until you go to trial, which ever comes first.

For a third DUI offense and/or breath test refusal, your license will be automatically suspended until you go to trial. Conviction of a DUI offense will result in suspension of your driver’s license and other penalties in addition to the administrative suspension.

First Offense – Penalties

i) BAC < .15

Class 1 misdemeanor (Up to $2,500 fine and 12 months in jail) with a mandatory minimum fine of $250.

ii) BAC .15 to .20

If the person’s blood alcohol level as indicated by the chemical test administered as provided in this article was at least 0.15, but not more than 0.20, he shall be confined in jail for an additional mandatory minimum period of 5 days or,

iii) BAC > .20

if the BAC level was more than 0.20, he shall be confined in jail for an additional mandatory minimum period of 10 days.

License Suspension

License revoked for 1 year. Eligible for immediate Restricted Operator’s License. Ignition Interlock required for BAC of .15 or above.

Second Offense – Penalties

A) Committed within less than 5 years from a prior offense

• Minimum $500 fine

• Confinement in Jail for one month to one year. 20 day mandatory minimum jail sentence.

• If the BAC was between .15 and .20, additional 10 days mandatory minimum jail sentence.

• If the BAC was greater than .20, additional 20 days mandatory minimum jail sentence.

• Minimum $500 fine

• Confinement in Jail for one month to one year. 10 day mandatory minimum jail sentence.

• If the BAC was between .15 and .20, additional 10 days mandatory minimum jail sentence.

• If the BAC was greater than .20, additional 20 days mandatory minimum jail sentence.

License Suspension

License revoked for 3 years.

• 2nd conviction within 5-10 years- eligible for Restricted Operator’s License after 4 months. Ignition Interlock required for Restricted OL.

Third Offense – Penalties

A) All 3 committed within 5 years period

• Class 6 FELONY: 1-5 years imprisonment; or up to 12 months in jail and $2,500 fine.

• Mandatory minimum jail sentence of 6 months

B) All 3 committed more than 5 years and up to 10 year period

• Class 6 FELONY: 1-5 years imprisonment; or up to 12 months in jail and $2,500 fine.

• Mandatory minimum jail sentence of 90 days.

• Mandatory minimum fine of $1,000.

• License Suspension

License revoked indefinitely.

Fourth Offense in 10 Years- Penalties

Class 6 Felony with mandatory minimum 1 year imprisonment and mandatory minimum $1,000 fine

License Suspension

License revoked indefinitely.

Conviction of any DUI offense involving a juvenile passenger (age 17 or younger) in the vehicle at the time of the offense carries an additional mandatory five-day jail term in addition to all other fines and jail sentences. You may also be assessed an additional fine of at least $500 and up to $1,000.

A second DUI offense with a juvenile (age 17 or younger) in the vehicle carries an additional 80-hour community service requirement in addition to all other fines and jail sentences.

Multiple Offenders and the Trauma Center Fund

Virginia also requires anyone has been previously been convicted of DUI/DWI in any state to pay $50 to the Trauma Center Fund to subsidize the cost of emergency medical care to accident victims in alcohol or drug use car crashes.

Virginia Alcohol Safety Action Program (ASAP)

If convicted under Va. §18.2-266 (DUI/DWI statute) or Va. §46.2-341.24 (DUI/DWI of a commercial vehicle), Virginia statute requires enrollment in ASAP. This course costs between $250 and $300. The program is 20 hours long and focuses on substance abuse and driving, substance abuse and health, and self-evaluation of potential for substance abuse.

Ignition Interlock Program

Virginia requires that anyone convicted of a second DUI or anyone that has a BAC greater than .15 for their first DUI have an ignition interlock system installed. This system records the drivers BAC via breath test each time the car is started. It also requires that the driver blow into the breath analyzer ever 5-20 minutes.

1. If everyone insists on their constitutional right to go to trial, the prosecutor will be in court all day.

2. In most cases, the mandatory minimum sentences for DUI are so harsh that a defendant in a DUI trial risks absolutely nothing by going to trial. Many clients ask me if a judge will penalize them with a harsher sentence if they assert their right to trial. The Virginia legislature has now raised the minimum sentence for all DUI cases to such a high level, that, if you decide to go to trial on your case, in most instances, as a practical matter, you are going to get the same sentence as the person who pleads guilty.

4. The prosecutor is unprepared. In the vast majority of jurisdictions in Virginia, prosecutors do not look into traffic cases ahead of time. Most of my clients are shocked when I tell them that it is impossible for me to contact a prosecutor with knowledge about their case prior to the court date to discuss their case, because the prosecutors do not look into the cases ahead of time. In most jurisdictions, if someone shows up without an attorney, the prosecutor does not get involved. Thus, it is impossible for someone attempting to represent himself in these jurisdictions to discuss a possible plea bargain with the prosecutor, because the prosecutor will not speak to them. In some jurisdictions, such as Virginia Beach, there is not even a prosecutor for any traffic case, even a DUI with an attorney!

5. The police officer is unprepared. Your case is just one of an entire docket full of cases that the officer has on that date. It is not unusual for an officer to have 5 to 10 DUI cases on one date in addition to dozens of other traffic tickets. The officer often has little if any recollection of your arrest. That becomes apparent time and time again in court when I object to an officer testifying by reading from his notes and, after my objection is sustained by the judge, the officer clearly has no independent recollection of the arrest.

6. Most prosecutors know very little about the science (or lack thereof) behind field sobriety testing. At no time during law school does the professor ever say, “Today we’re going to learn about standardized field sobriety testing.” A thorough knowledge of these tests would actually hurt their cases and prevent them from making arguments that I routinely hear prosecutors make to judges while trying to argue that the results of these tests should be given more weight than they were ever intended to. For example, the three standardized field sobriety tests were only used to predict a BAC of .10 or above. Since the legal limit is now .08, there is almost no weight that a judge could give to these tests on someone with a BAC of .08 or .09.

7. The police officer did not follow proper procedures for the field sobriety tests. If a police officer receives proper training about field sobriety tests, they will be told the proper standards and procedures according to the National Highway Traffic Safety Administration (”NHTSA”). However, for example, on the “follow the pen with your eyes” test (the horizontal gaze nystagmus test, or HGN), the manual says that if the suspect moves his head during the test, the officer should use his flashlight or his free hand as a chin rest of the suspect.

In 25 years of practicing law, I have never seen an officer use anything as a chin rest for a suspect, even though in the vast majority of those cases the officer testifies that the suspect was swaying and unsteady on his feet! The manual also states that the walk-and-turn and one-leg stand test should not be done if the suspect is over 50 pounds overweight or has physical impairments that could affect his balance. The manual also states that the walk-and-turn test “requires a line that the suspect can see.” This is rarely done.

8. The breath testing equipment is inaccurate. The breath testing machine is just that- a machine. The machine uses an assumption to calculate the amount of alcohol in a person’s blood based on the amount of alcohol that is released into a person’s breath. The amount can vary from between 1100 and 3200. However, the machine uses a standard ratio of 2100, almost the average between the two.

If you exchange alcohol at the 1100 rate, the machine gives a reading twice as high as it should. On the other hand, if you exchange at the 3200 rate, it gives a reading half as high as it should. In any event, the principle is flawed and readings can vary up to 50% from the actual breath content. The manufacturers of the Intoxilyzer 5000 have flat out refused to reveal their source codes to defense attorneys. The source codes are basically the mathematical formula that the machine uses to convert a small sample of breath to a blood alcohol content number. Courts in Florida and Minnesota have already ruled that this refusal is a basis to dismiss DUI prosecutions. Virginia appeals courts have yet to rule on this issue.

CONCLUSION

A DUI charge is liable to make you feel overwhelmed and at the mercy of a Court system, police system and legal system that you do not understand. With the police and the prosecutor trying to convict you, you might think that it is useless to fight the charges against you.

The goal of this book is to help you feel more in charge of this potentially overwhelming ordeal, to shed some light on what you are going through, and to help you find a qualified defense attorney who will work to ensure that justice is done. When it comes to your case, justice means demanding that the police follow proper procedure, that only legally admissible evidence is presented at trial, and that you are not convicted on the basis of anyone’s opinion or prejudice.

Regardless of the particulars of your case, you deserve to find a lawyer who knows what your are going through, who knows what you are up against and who has years of experience going to bat for others in your situation by fighting the DUI Guilt Myth. And a chance to fight for your rights is not simply what you deserve. It’s the law.

 www.BobKeeferLaw.com

Neavada Bill Could Stop Online Classes for DUI and Victim’s Impact

July 17th, 2009 at 09:02pm Under DUI Law

Nevada Statute NRS 484.3797 allows DUI schooling or Victim Impact Panels via the internet.  AB 209 would reverse that.As usual, many lobbyist and politicians hungry for the lime light all jumped on board this one, democrats wanting to appear to be tough on crime and the bleeding hearts telling their tragic stories.The actuality of the situation is that Nevada DMV has it’s own online course, as does a whole host of other websites.  And, as if the DUI law as written doesn’t deplete the offenders bank account of lots of his/her money, the DUI schools further deplete it.  And, if you took out the DUI school being online, you’d have the added cost of commuting to these schools.  No one asked people who could barely afford their gas now, how they felt about bill AB 209.  Everyone wants to demonize DUI.  At no point has any science been presented to show that DUI contributes to driving impairment.  In fact, the actual numbers of drivers in accidents and fatalities, shows DUI as one of the lower causes, if you could even say it’s a cause.  The number one cause of accident and death in a vehicle is driver distraction: cell phone; car radio; looking elsewhere.  Now if the leading cause of accident and death is due to driver distraction, does it stand to reason that maybe DUI isn’t even the cause of accident and death in those cases at all?  Let’s take a look at something.  When alcohol is determined to be present at the scene of a car incident, be it accident or anything, the police and lawmakers shift the blame squarely on the alcohol.  ALL further investigation into the cause of the incident ceases immediately.  So all of those thousands of DUI cases, which might have been masking some other cause, have completely and utterly halted any other findings.  Think of all of the car recalls, or driver safety recalls that occur in a year.  Is it possible that maybe we could discover those issues faster, if DUI was not thought to be the end of the investigation?Let’s go back to driver distraction.  If DUI supresses any and all further investigation into the actual cause of the accident, then isn’t it possible that driver distraction might be the actual cause in a majority of those cases as well?  However, there is so much money to be made under DUI laws that no one will change it.  No one will go out of their way to investigate it further.Online schools for dui and victim impact is another cheap source of massive income for the city, state and local business that no bill will defeat it.  Luckily for those that are living barely above water, this bill won’t defeat it.  They won’t have to shell out extra gas money, and possibly starve, on top of all the fees they are paying for this DUI.

Retaining the Right Tennessee DUI Attorney

July 17th, 2009 at 03:03pm Under DUI Law

Finding the right Tennessee DUI attorney is vital if you are charged with a DUI in the state of Tennessee.

A DUI conviction can have serious consequences, even if you have never been in trouble before. Like many states, Tennessee DUI laws have been amended to make consequences harsher for all levels of offender. Conviction for a DUI first carries mandatory jail time, alcohol safety school, potential community service, loss of your driver license for one year, and the possible installation of an ignition interlock device on your car. After the first conviction, things get even worse. A second DUI carries a minimum of 45 days in jail, a third DUI requires a minimum of 120 days, and a fourth DUI will result in at least 150 days in jail, not to mention a felony conviction on your record. It is especially easier now to get charged with a DUI since the legal blood alcohol limit is now 0.08, and the Tennessee DWI has been taken off the books.

An experienced Tennessee DUI lawyer can help you avoid some of the more unpleasant aspects of a DUI conviction. Only an attorney thoroughly familiar with Tennessee DUI law can ensure your rights are protected and mitigate the more inconvenient aspects of a DUI conviction. For instance, an ignition interlock device, which requires that you blow into it before you start your car and periodically thereafter, is not a requirement of Tennessee law. This is an aspect of your defense that can be negotiated by a skilled DUI attorney. Often, people are pulled over for invalid reasons that make your arrest unconstitutional. In cases where the evidence against you is slight, a DUI charge can sometimes be reduced to reckless driving or dismissed. For this and many reasons, an experienced DUI attorney is the best weapon to have on your side.

There are many things you can do that will help your DUI defense. There is no requirement that you offer evidence against yourself. Often times people are pulled over for simple things, like having a headlight or tail light out, a tag expired, or for speeding just over the legal speed limit. None of those things can be taken to infer that you were driving under the influence. Because the traffic stop is often not enough to obtain a conviction, there is no benefit that you tell the officer how much alcohol you may have consumed, that you perform a breath test, or undergo field sobriety tests, like standing on one leg, saying the alphabet backwards, or touching your fingers to your nose. Many people cannot even pass those tests sober, so there is seldom a benefit to giving the wrong impression.

Just because you may have offered evidence yourself, it does not mean you cannot be defended. If you have offered evidence against yourself, it is vital that you have an experienced and well-trained Tennessee DUI attorney on your side, who is familiar with Tennessee DUI law and the tendencies of the court where you have been arrested. The Tennessee DUI lawyer you hire might be the most important decision you ever make.

Dwi/dui Penalties are Harsher Than You Think!

July 17th, 2009 at 09:02am Under DUI Law

The following is an all too familiar scenario in Virginia:
You are returning home after attending a warm send-off party for one of your colleagues. Many close friends and associates had gathered and you were enjoying every moment of the evening.
At the beginning of the party, you were going slowly since you knew you had to drive back home. But something changed about mid-way through-you lost control.
Before you knew it, the fun and laughter carried you away.
You overdid the drinking part and though you felt that you could safely drive back home, the authorities caught up with you at the intersection just ahead of your house.
Now, you find yourself in the back of a police cruiser, handcuffed and humiliated and wonder “what’s next?”
Well, in case you did not know, the Virginia DWI/DUI laws and associated penalties are tough!
The following is a list of what persons charged with a first offense DWI/DUI face:
- Your license is suspended for 1 year from the date of conviction.
- You face up to $2500 in fines, plus Court costs.
- You have to pay for, enroll in and successfully complete the Virginia Alcohol Safety Action Program (where you are subject to random drug/alcohol tests and have to pay about $300 for the course).
- If your BAC (Blood Alcohol Concentration) is greater than 0.15 but less than 0.20, it is compulsory for you to serve at least a 5-day jail sentence.
- If your BAC is more that 0.20, then the jail sentence is a minimum of 10 days.
If you this is not your first offense of DWI/DUI, then you face additional penalties such as: – Potential Class 6 Felony on your permanent record. – Minimum 20 days of mandatory minimum jail sentence. – Up to three years of license suspension. – Permanent loss of your vehicle.
If you are convicted of DWI/DUI while transporting a minor in the car, you could be sentenced with an additional $500 to $1000 in fines and a minimum of 5 days in jail.
In addition to all of these items, you have to retain a Virginia DWI lawyer (which will cost another $3,000) as well pay for assigned risk automobile insurance (which is extraordinarily expensive)!
Remember-all of these penalties, costs and inconveniences can be avoided by simply taking a cab, having your sober friend drive you home or staying the night at the home of the party host.