Drinking While Intoxicated is a grave offense in Virginia. It becomes a more complicated situation, legally, if you or a loved one who is below the age of 21 years is arrested because of driving while intoxicated. Virginia’s legal drinking age is 21 years. It should not be confused that DWI is an offense for anyone who is arrested for this offense by the authorities. However, the law provides for different prosecution strategies for individuals who are less than 21 years old.
You could be deemed as Driving While Intoxicated if you were behind the wheel while under the influence of drugs or alcohol. In most cases, alcohol is the substance abused by drivers and is more often the tested substance for DWI charges. If you have a blood alcohol content, BAC, of 0.08 percent or higher, you are in violation of the DWI laws and are liable for the penalties herein. This rule applies for persons of 21 year and above. Anyone below the age of 21 years should not be drinking, and as such, they should not have any alcohol in their system when they are behind the wheel. Virginia law § 18.2-266.1 states that any person found to have a BAC level above 0.02 percent will violate this section. This rule stands even if the BAC level is below the 0.08 percent as provided for adult drivers.
Whenever you or your loved one is arrested in Fairfax or entire Northern Virginia and faces such DWI charges, it is in your best interest to get in touch with a Virginia Criminal Attorney. Our experience in DWI matters is what you need to fight these charges.
Understanding Driving While Intoxicated Charges
Anyone under the age of 21 years can only consume alcohol on private property and with express permission to do so from a legal guardian. However, you should not get behind the wheel after consuming alcohol. Virginia Code § 18.2-266.1 considers it a crime for any consumption and subsequent operation of a motor vehicle by an individual less than 21 years old. They stand charged of the offense if, at the time of arrest and administration of the alcohol test, they were found to have a blood alcohol content that was above 0.02 percent.
First Time DWI Offenders
If it is a first-time offense, the DWI is charged as a class 1 misdemeanor. The penalties imposed range from $250 to $2,500 depending on the preceding judge’s direction that is influenced by the facts in the case. Any BAC count that was 0.15 percent or higher attracts further punishment that may have a five-day sentence added to the penalties issued by the judge. First-time offenders whose BAC levels were between 0.02 percent and 0.14 percent risk having their licenses suspended. They can only have it reinstated after they complete alcohol education and safety program. If you were arrested with a BAC of 0.15 percent or above, you also lose your license. However, you can only reinstate it by attending the alcohol education and safety program and having an ignition interlock device installed in your car, one that you co-own, or a vehicle that you use. The device will administer an alcohol test every time you are behind the wheel, and it can only start when you have no alcohol in your system.
First-time convictions lack incarceration terms. However, if you were driving and there was a minor present in the vehicle at the time, you may serve a mandatory five-day jail term. Any BAC of 0.15 percent and above carries a minimum five-day sentence. If the BAC level was above 0.20 percent, you stand to serve a minimum sentence of ten-day. A fine of $250 is imposed as a criminal penalty for the offense. However, the sums can go up to $500 but not more than $2,500 if it there was a minor in the car during the time you were driving.
Second DWI Offenders
Second offenders of DWI charges receive a class 1 misdemeanor charge for their offenses. You stand to have your license revoked for three years with an additional penalty of a $500 fine. If your prior conviction was within the last ten years following this charge, you shall be required to install an ignition interlock device in your car, one that you operate, or one that you co-own. This is a mandatory requirement if your driving privileges are to be restored after the ten-year service of your prior conviction.
Administratively, the second offense will call on the DMV to suspend your driving license for sixty days pending your date with the courts. The suspension happens if you are arrested for a BAC of 0.08 percent or higher. An ignition interlock device will be required to be installed on a vehicle you own, co-own, or drive if your second conviction falls within five years of your first conviction. Only then can your driving privileges be restored or you will be granted restricted driving privileges. At other times, your car may be impounded and you may be required to pay restitution fees to meet any costs to the community that include law enforcement costs, or property damages, or medical costs to the victims of the accident if the event that your driving led to a crash.
The judge may issue a jail sentence of not more than one year based on the facts of the case. If the second offense occurred within ten years of your first conviction, the judge might require you to serve a ten-day jail term. The sentencing may get to twenty days if the second conviction falls within five years after your first conviction. You may also be required by the court to attend ASAP, the Alcohol Safety Action Program. The program serves as a platform to better understand you and recommend the appropriate intervention you need to deal with your drinking habits. ASAP oversees your probationary terms for three years.
Refusal to Have a Blood or Breath Test Administered
Legally, before any arrest is made, the officer must offer a breath test. If the breath test is not administered because of unavoidable circumstances, the officer may require a blood test to determine your level of intoxication. In some cases, both tests may be conducted. The officer can only administer any of the tests if they have probable cause that makes them believe you were driving while intoxicated.
The Virginia Implied Consent law protects you during the testing stage. Your consent will be required for the officer to administer any or both of the tests to determine your intoxication level. The test(s) must be carried within three hours of you being pulled over by the officers. The police are required to administer sobriety tests before any breath or blood tests are conducted. You can refuse to have the blood and breath tests administered, in which case, your actions cannot be produced as evidence against you in court. However, the sobriety tests can be used as evidence to have you arrested and have the test administered. This situation is indeed not in your favor.
Any refusal on your part to have the test done carries a one-year license suspension. Second and third-time offenders would have to deal with a three years license suspension if the refusal occurred within ten years of their prior refusal. It is worth noting that your first refusal is not considered a crime but can be to your detriment in any court proceedings brought against you. When arresting you and reading you your Miranda rights, it should be clear that your refusal can and will be used against you as well as suspending your license. The suspension of your license by the officer, however, is not part of the one or three years suspensions. It only lasts for a period before your trial.
If you decide not to have the tests administered, your sentencing becomes absolute. You will have to part with $250 as a fine as well as serve a jail term for the DWI offense whose term will be as directed by the courts. Therefore, your refusal to have the test(s) administered does not mean that the prosecution will not move forward with the case. The case will proceed even if the prosecution has no BAC test evidence against you. It may use the refusal as an argument that you were aware of your intoxication.
Related Charges that the Prosecution May Use Together with the DWI under 21 Charge
It is common practice for the prosecution to consider adding other charges that are similar to the Driving While Intoxicated charges because DWI cases are not different in many aspects. This is a move to ensure that their conviction rates remain high. The prosecutors may prefer these charges if it is apparent that they will not convict you for Driving While Intoxicated violations. Some of these charges may be thrown out due to lack of evidence, or they may be the preferred charges by the defense. Therefore, the defense may and can take up these charges during plea bargain deliberations. The direction the defense chooses depends on the facts of the case. The charges include;
- Distribution of alcohol or prohibited substances to minors. These charges are preferred by the prosecution if the passengers who were on board the car at the time of arrest were minors
- Solicitation of alcohol
- Reckless driving
- Child endangerment
- Possession of a false document, which implies that you used a fake ID to purchase alcohol
- Any other offense the arresting officer witnessed at the time of the arrest
It is in your best interest to hire an attorney as they have the understanding and experience needed to guide you on which direction to take.
Defenses Utilized In Fighting Off DWI Charges
A defense strategy is one at your disposal when facing Driving While Intoxicated charges. The penalties may create anxiety for you as you wonder on what comes next. However, the charges can be dropped, or the sentences reduced through the following defenses. The facts of your case determine what defense your attorney will use.
Lack of Probable Cause
Police officers are required by law to have probable cause or reasonable doubt as a justification for pulling you over. It is wrong for them to use a hunch or an anonymous tip as grounds to administer a sobriety test. If their actions were not based on probable cause, any evidence they produce is inadmissible. This situation is enough to have your case dismissed.
The Matter of the Sobriety Test
Sobriety tests in their nature may not be conclusive. Various issues affect the quality of the test. Top of the list is any physical pain, injury, or the lack of the ability to do the test as expected. Failure of the tests, therefore, does not mean that you were intoxicated. Furthermore, there are procedures the officer is expected to follow while administering the test. If they failed to follow the laid down procedures, you have grounds to challenge the results of the tests, and this opens the door to a not-guilty verdict by the court.
Rising BAC can also be referred to as relation back. This defense argues that the blood alcohol level may have been low at the time you were driving but may have increased two to three hours later when the test was administered. With the help of an expert witness, it is possible to prove this matter and, thus, dismiss the case against you.
Questioning the Breath Test
A proper breath test is one that is administered by using the set guidelines and procedures. Top on that list is the issue of the error on the breathalyzers and blood test machines. They need to maintain an error of less than ten percent before any test is administered. There are other situations where the results may be compromised in the administration of these very tests. As such, you have grounds to challenge the results.
Challenging the Blood Test
The guidelines of the administration of blood tests involve the process of drawing the blood, storage, and the tests done upon them. If any procedure was violated in the above mentioned, the quality of the tests is in question. This break of the procedure can render the tests inadmissible as evidence produced in court.
Questioning the Eye Test Results
Horizontal Gaze Nystagmus or commonly referred to as the HGN test is one used by the arresting officers. It seeks to assess the involuntary jerking of your eyes. It is common for those intoxicated to have less control of the eye movements and as such, most drivers fail the involuntary eye jerking test. An expert is required to administer this examination. The complexity of the test as well as the lack of expertise on the part of the police questions the outcome of the test. Consequently, the doubt created becomes an advantage to the defense as they can move to have the results of the eye examination dismissed.
Violation of Constitutional Rights
The process of pulling you over, administering the tests, and arresting you should all be done within the law. Any conduct on the part of the police officer during this entire process will be questionable if they violated any of your rights. If it is proven that there were violations, it is enough grounds to have the case dismissed.
The prosecution may use whatever sources to build a case against you. They have been known to access the defendant’s social media accounts to gather information. While a post about your drinking escapades may seem harmless and cool at the time, it is essential to understand that these posts can be used to build a case against you. As a precautionary measure, it is good advice to post such engagements and if they are already present, be sure to give the details to your attorney. It is often a temptation many consider acting upon to delete the posts, to wipe clean any record of your drinking actions during the investigations or before the arrest. Such a move may present a legal challenge for you. In any case, the police may subpoena the accounts including the deleted posts. All you need to do is address the matter with your attorney and let them handle it.
Find a Virginia Criminal Attorney Near Me
DWI under 21 charges could be complex, but your success in the case is at the heart of a good defense strategy. All the information needed for the case can be received from your account, investigations on the arrest, sobriety tests conducted, and the history of the arresting officer, as well as the testimonies of witnesses. All this information coupled with the experience in such matters is what you need to fight the drinking while intoxicated charges. This is why you need to hire a Virginia Criminal Attorney. Our attorneys serve clients in Fairfax and Northern Virginia. Call us today at 703-718-5533, set an appointment and let us help you handle the DWI charges.