Virginia DUI Lawyer
Case Results
Category: Case Results
THE RESULTS OF SPECIFIC CASES REPORTED ARE NOT MEANT TO BE A PREDICTION OR GUARANTEE OF ANY OTHER CASE. EACH CASE CONSISTS OF FACTORS UNIQUE TO THAT CASE.
Caroline County Virginia DUI, Reckless Driving and Aggressive Driving Charges Dismissed
Category: Case Results
CAROLINE COUNTY GENERAL DISTRICT COURT- A 19-year-old in the military who is stationed in Virginia was charged with DUI, Reckless Driving, Aggressive Driving, Failure to Maintain Proper Control of his vehicle, and Underage Possession of Alcohol in Caroline County, Virginia. At trial, Richmond Virginia DUI Lawyer and Reckless Driving Lawyer Bob Battle was able to get all charges dismissed. The driver/defendant was charged with these numerous charges after an accident in Caroline County. He was taken to the hospital for treatment in an ambulance. At the scene and again at the hospital he was questioned by the Virginia State Trooper who charged him with all these offenses. A blood test was taken at the hospital and the BAC result was .10.
At trial, on cross examination, Virginia DUI Attorney Bob Battle was able to demonstrate that the trooper could not definitively prove that the arrest was made within three hours of the driving behavior. The defendant initially told the officer that the accident happened around 5:00 a.m. but could have happened later. The officer testified that it was shortly after 8:05 a.m. that he placed the defendant under arrest. The Virginia Code requires that the arrest be made within three hours of the driving behavior for the Virginia Implied Consent law to apply. Thus, the judge excluded the blood test results and, since there were no other field sobriety tests or evidence with respect to the DUI charge, the drunk driving charge was dismissed.
As to the Reckless Driving, Aggressive Driving and Failure to Maintain Proper Control charges, there were no witnesses present at trial and, when the trooper attempted to testify as to what he had been told, the hearsay objection by Virginia Reckless Driving Lawyer Bob Battle was sustained and those charges were dismissed.
With respect to the Underage Possession of Alcohol charge, the trooper testified he found a green bottle in the car that smelled and had the appearance that he associates with alcohol. On cross examination, the officer admitted that he had not had the contents of the bottle analyzed. Virginia Code Section 4-100 lists a very specific definition of "alcohol" and "alcoholic beverages." It requires that there be a certain percentage of alcohol in the beverage to qualify. Again, without any evidence as to the specific alcohol content of the contents of the bottle, this charge was dismissed as well.
As Bob Battle states in his book "How to Choose a DUI Lawyer in Virginia," any time there is a single car accident, there are a lot of potential defenses available. As was demonstrated in this Caroline County case, the prosecution could not make any of the charges stick over objections from an experienced DUI and Reckless Driving lawyer. This Blog has previously posted another example of how the "3 hour arrest rule" led to the reduction of a Richmond DUI with a .20 BAC.
Hanover Virginia Felony DUI reduced to Misdemeanor
Category: Case Results
HANOVER GENERAL DISTRICT COURT- A DUI defendant in Hanover, Virginia, who was charged with a felony third DUI within a 10 year period, was allowed to have his charge reduced to a misdemeanor second offense with the minimum jail time for a second offense.
FACTS: client, was pulled over in Hanover County when he was spotted driving on the highway on the wrong side of an area that was closed for highway construction. He had quite a few empty beer cans in his car and his BAC was above the legal limit in Virginia of .08. He had two prior DUI convictions in Virginia and was charged with a felony third DUI in a 10 year period. Client has a job that mandated that anyone convicted of a felony would be immediately fired.
Prior to meeting with the Richmond DUI Lawyer Bob Battle, the client met with another Hanover County lawyer, who informed him that he probably would be convicted of the felony because this third offense was within 10 years of when he was convicted of his first and second offenses.
However, the law in Virginia requires that the three offenses must be committed within 10 years of each other for the felony charge. His first conviction had been committed 10 years and three months prior to the time he was charged with his third offense. This is not a recent change in the Virginia law and the amazing thing was that the trooper who charged the client, the magistrate who certified the charges against the client, and the first Hanover County lawyer the client consulted (who held himself out as an experienced DUI lawyer), all were mistaken about the law- to the great detriment of the accused!
§ 18.2-270. Penalty for driving while intoxicated; subsequent offense; prior conviction. C. 1. Any person convicted of three offenses of § 18.2-266 committed within a 10-year period shall upon conviction of the third offense be guilty of a Class 6 felony. The sentence of any person convicted of three offenses of § 18.2-266 committed within a 10-year period shall include a mandatory minimum sentence of 90 days, unless the three offenses were committed within a five-year period, in which case the sentence shall include a mandatory minimum sentence of confinement for six months. In addition, such person shall be fined a mandatory minimum fine of $1,000.
Furthermore, there was a recent power outage at the police station and the client was the first one to use the Intoxilyzer 5000 breath machine after power was restored. The printer printed his name on the middle of the page well below where the space for the name usually prints. The Commonwealth Attorney knew he could not make the felony charge and was concerned about the admissibility of the breath certificate, and offered the client a plea to a misdemeanor second offense in five years with a recommendation for the minimum 20 day jail sentence.
COMMENT: This case serves as another example of what Richmond, Virginia DUI Lawyer Bob Battle emphasizes in Part 2 of his free Consumer Guide "How to Choose a DUI Lawyer in Virginia" subtitled "20 Ways Lawyers who are 'Asleep at the Wheel' of Your Virginia DUI Trial can LOSE Winnable Cases!"
To get your free copy of "How to Choose a DUI Lawyer in Virginia," fill out the form on the top of this webpage- BobBattleLaw.com
Albemarle Virginia DUI with .13 BAC reduced to Reckless Driving
Category: Case Results
ALBEMARLE GENERAL DISTRICT COURT- A DUI defendant in Albemarle, Virginia, whose vehicle was found off the road and facing in the wrong direction in a ditch by the investigating police officer, was allowed to plead to a charge of reckless driving despite a .13 BAC.
FACTS: Client, a college student, was following a friend to a party on an isolated road outside of Charlottesville, Virginia. Client informed the investigating police officer that she swerved to avoid a deer which ran in front of her car, and was forced to drive off the road. The officer found her in her car in a ditch by the roadside. She was arrested for DUI and later blew a .13 on the Intoxilyzer 5000 breath machine.
Client's family initially retained a local, experienced trial attorney. This attorney admittedly does not focus or concentrate his practice on DUI defense. During discussions with the prosecutor, the prosecutor informed this attorney that he was not willing to consider reducing the charge from a DUI unless he thought that the breath result might not come into evidence.
Three weeks prior to trial, the initial attorney contacted the client's parents and suggested that they hire someone who focuses his practice on defending DUI cases. This attorney recommended Richmond DUI Lawyer Bob Battle.
DEFENSE: After being placed under arrest, client was was taken to the jail and ordered by the officer who was operating the breath machine to sit for 20 minutes prior to taking the breath test. After taking the breath test and upon leaving the breath test operator's presence, client informed the arresting officer that she had burped about 2 minutes before the observation ended. Client, clearly intimidated by the breath test operator's demeanor, asked the arresting officer not to tell the breath test operator that she had burped. The arresting officer informed client that he was required to take her back to the breath test operator. The breath test operator told the arresting officer that it was too late since client had already taken the breath test which registered a .13 BAC.
The Breath Test Operator Instructional Manual issued by the Department of Forensic Science in Virginia for the Intoxilyzer 5000 lists clear procedures that must be followed when a subject burps/belches and the reason for these procedures at Page 16 of the Manual (attached):
Residual mouth alcohol contamination of the breath sample could occur in several ways other than from drinking an alcoholic beverage. First, the subject, who has alcohol in his/her stomach, could vomit and thus bring alcohol-bearing solids and liquid into the mouth cavity, producing residual alcohol. Second, a subject, who has alcohol in his/her stomach could belch, bringing alcoholic vapor into the mouth.Rinsing the mouth with water is not effective in eliminating mouth alcohol. Thus, when a drinking-driving subject has recently taken a drink, vomited, belched, or otherwise come in contact with alcohol, another 20-minute observation must be performed for the effects of any residual mouth alcohol to dissipate before a valid breath sample can be taken.
The regulations are clear that the breath test operator "must" begin another 20 minute waiting period and that Client's breath test was not considered a "valid breath sample."
Virginia DUI Lawyer Bob Battle filed a motion to exclude the breath test results using the above argument. The prosecutor read the motion an agreed that he had a potential problem with the breath test and remained true to his statement to the prior attorney that, if he had a problem with the breath result, he would consider reducing the charge. Client was allowed to plead to Reckless Driving.
Richmond DUI with .20 BAC reduced to Reckless Driving
Category: Case Results
RICHMOND GENERAL DISTRICT COURT- A DUI defendant in Richmond, Virginia who was involved in a single car accident which resulted in in his car being flipped over and who had a BAC of .20 and was also charged with Possession of Marijuana pled guilty to a reduced charge of Reckless Driving. The possession of marijuana charge was dismissed.
FACTS: Client's car ran off the road and was overturned and client was knocked out. A concerned citizen called the Virginia State Police on their cell phone. The investigation by the Virginia State Trooper revealed that the client had been drinking and also had a small amount of marijuana in his possession. Client was taken to the hospital and a blood test there revealed his BAC was a .20. (2 1/2 times the legal limit in Virginia!)
DEFENSE: The Citizen witness did not actually see the accident. The Virginia Implied Consent Law, says that anyone driving on the highways of Virginia has given their "consent" to a blood or breath test if they are arrested for DUI or a similar offense within three hours of the driving behavior. The prosecution was unable to prove that the client was arrested within three hours of his driving behavior.
RESULTS: the DUI charge was amended to a charge of Reckless Driving and the Possession of Marijuana charge was dismissed pursuant to a plea bargain.
COMMENT: This case once again demonstrates what Richmond, Virginia DUI Lawyer Bob Battle emphasizes in part 2 of his free Consumer Guide "How to Choose a DUI Lawyer in Virginia" subtitled "20 Ways Lawyers who are 'Asleep at the Wheel' of Your Virginia DUI Trial can LOSE Winnable Cases!" Number 20 on this list states:
20. Failure to spot multiple issues that arise in DUI accident cases.
Quite often, a client charged with DUI has been involved in a single car accident that the officer did not observe. Very often, the officer is unable to prove that your client was driving or that he had not been consuming alcohol after getting into the accident and exiting the vehicle. By statute, the officer must arrest the suspect within three hours of the driving behavior. If you have been drinking and are involved in a single car accident, it is absolutely crucial that you exercise your right to remain silent. Furthermore, if the alleged drunk driver is injured, often a blood test is taken at the hospital. Rarely do the hospitals follow the statutory requirements and these hospital blood tests can be kept out of evidence at trial.
To get your free copy of "How to Choose a DUI Lawyer in Virginia," fill out the form on the top of this webpage- BobBattlelaw.com
Chesterfield County Reckless/Speeding Charge Using VASCAR Device Dismissed
Category: Case Results
A Chesterfield County General District Court Judge dismissed a reckless driving charge today when he ruled that the officer's attempt to testify as to the speed reading on the VASCAR device was inadmissible. The client was charged with reckless driving speeding 81 in a 60 mph zone on Interstate 95 in Chesterfield County.
Bob Battle has previously written about the renewed use of VASCAR in Virginia and the fact that there are many defenses available at trial which would lead to a dismissal of the charge.
Comment from Richmond, Virginia Reckless/Speeding Lawyer Bob Battle:I feel that the reason for the renewed use of VASCAR is that so many people plead guilty or hire attorneys who are not aware of the available defenses. Similarly, in court today, several other individuals represented by lawyers pled guilty to reduced charges. My client was offered such a plea bargain and I convinced her to reject the plea bargain. When the officer attempted to testify as to the speed, I objected, the judge granted my objection, and the case was dismissed.
Police Mistakes Lead to Dismissal of Arlington and Alexandria DUI Charges
Category: Case Results
In Bob Battle's article (which is reprinted on his website) titled "Ex-Prosecutor Bob Battle Reveals: 8 Secrets Your Prosecutor Doesn't Want You To Know About Your Virginia DUI" secret number 7 is "The police officer did not follow proper procedures for the field sobriety test." Two recent DUI wins underscore this principle.
In a DUI trial in Arlington, Virginia, the police officer insisted on giving the defendant the walk-and-turn test even though the defendant was over 100 pounds overweight and disabled. At trial, it became abundantly clear on cross examination that the officer had no idea that the National Highway Traffic Safety Administration ("NHTSA") manual 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. At the end of the trial the defendant was found not guilty by the judge.
In a DUI trial in federal court in Alexandria, Virginia, the defendant was arrested after drinking at a club on the Marine Corps base at Quantico. One of the tests that the officer reported that the defendant "failed" was the "follow the pen with your eyes" test (the horizontal gaze nystagmus test, or HGN). Although there are countless objections to this "test," the NHTSA manual states that the officer should examine the suspect for 6 clues. If 4 or more clues are present, the suspect has "failed" the test. Although the officer stated the defendant "failed" this test, his notes showed that there were only 2 clues present, which is a pass! The prosecutor dismissed the DUI charge.