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Editor: Bob Battle
Profession: DUI Defense Lawyer

Category: Recent Wins

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