The following are common myths or misconceptions regarding DUI charges in Virginia and what you should know about them according to a Loudoun County DUI lawyer. To learn more call and schedule a consultation with an attorney today.
All drivers in the Commonwealth of Virginia may respectfully decline a PBT at any time, though in most cases, if the officer smells the odor of alcohol and there is any indication whatsoever of impairment, they are going to offer you a Preliminary Breath Test. The law requires that they offer the Preliminary Breath Test before they make an arrest.
With that said, the Preliminary Breath Test is almost never helpful to the person being stopped for potential drunk driving. The only time an attorney can recommend that someone take a Preliminary Breath Test is when they have had one standard alcoholic beverage or less over an extended period of time. If they are confident of the content of the alcoholic beverage or they knew that they had only one drink which occurred several hours prior to the driving. If it was a mixed drink and someone else made it for you or you are not entirely confident how much alcohol was in it, or if it was fairly recent to your driving decision, regardless of how much you consumed, it is almost certainly in your best interest to decline to take the PBT.
The PBT is not admissible in court and the officer will tell you this. However, it is absolutely admissible as to whether or not there is a probable cause to make an arrest decision. Once the PBT is taken and it registers a .08 or .09, it is not a difficult decision as to whether that is enough for the officer to make an arrest, even if the Field Sobriety Tests and other indications of impairment are minimal.
The term Breathalyzer is very vague. In Virginia, there are two different types of breath tests that are used during DUI prosecution. The first is the Preliminary Breath Test (PBT) used in the field. That is not always accurate and is therefore not admissible in the courts. The EC/IR2 machine at the station is far more accurate if administered properly to a person without other medical conditions or breathing abnormalities that could skew the results.
This is a common myth that you must be the person in the infomercial or the person in the advertisement for safe driving that stumbles out of the car or staggering down the street to be arrested for a suspicion of a DUI or suspicion of drunk driving. What is more common is that the officer smells the odor of an alcoholic beverage coming from your car or on your person, and they ask you to perform Field Sobriety Test and ultimately asks you to take a PBT test. The Preliminary Breath Test (PBT) may indicate Blood Alcohol Content (BAC) in excess of the legal limit. You will then be arrested for suspicion of DUI. If there is no PBT but the officer finds that your behavior, mannerisms, appearance and demeanor are indicative of impairment, they can still decide to make the arrest. Even in cases where there is no PBT and you perform well on Field Sobriety Tests, it is not uncommon for there to be sufficient probable cause for suspicion of DUI and a DUI arrest occurs.
The current public service announcement is “buzzed driving is drunk driving.” Many people have seen it on the signs and heard the ads on television and radio. It is easier than commonly perceived for trained law enforcement officers that perform a DUI detection to know the amount of alcohol in a person’s system and to make certain observations based on the person’s appearance, mannerisms or other physical characteristics.
The easiest way to test this theory is to walk into a bar, party or a restaurant that allows you to consume alcohol, and at midnight come out without having had a single drop of alcohol. The smell of alcohol will be quite noticeable. It is the same with law enforcement officers. They walk up to your vehicle, smell something and they can tell that alcohol was present. Officers are trained on what to look for and what to detect. If they smell alcohol, then they go through their DUI visual observation techniques which include a person’s appearance, their mannerisms, the way they answer the questions and some of their physical movements.
Even if you feel you are OK to drive, if you have consumed alcohol, it is always good idea not to drive. You should have someone else who has consumed absolutely nothing to drive or opt to take a taxi, Uber or public transportation. Officers are out there to enforce DUI, to make sure that people are safe on the roadways and to prevent accidents so they are going to be very aggressive in performing DUI enforcement techniques when they smell the odor of alcohol.
It is a common myth that you cannot be arrested for a DUI on private property. This is categorically untrue. The Virginia Supreme Court and the Virginia General Assembly have defined operation of a motor vehicle very broadly. In Virginia, current case law states that you do not have to be behind the wheel of a running vehicle. Your vehicle can be stopped, parked on private property and the keys may even be in the auxiliary position, and you may still be deemed to be operating that motor vehicle depending on facts and circumstances of your case.
So it is a common myth that if you are parked on private property, the car is not on gear and the keys are not in the ‘Drive’ position or other things that would seem to indicate that you were not actually driving the vehicle that you cannot be arrested for DUI.
The definition of “operation” in Virginia is very broad and the distinction between highways and non-highways in a DUI case merely pertains to the implied consent statute.
One DUI myth in Loudoun County is that if you keep an alcoholic beverage in your car and rapidly consume it when the officer approaches your vehicle that after your vehicle is turned off you can never be charged with a DUI or DUI can never be proved against you. There are a variety of reasons why this particular myth is unfounded, including that the officer can use other indications of impairment and may deem you in operation of the motor vehicle even though you have said you were trying to avoid it.
Another common myth is that if the officer does not read you your Miranda Rights during course of the DUI stop that it is illegal and the stop will get thrown out. This is untrue. It is a common myth. Miranda Rights are seldom read during the course of a DUI stop. The reason for this is that a DUI stop is not deemed to be one of the instances in which you are either in custody or custodial equivalent of a detention and therefore the rights do not apply.
One place that Miranda Rights apply in a DUI case is if after you are arrested, the officer asks questions about your alcohol consumption or other things that may be incriminating in the car or in the police station. It is, however, widely uncommon for the officer to ask these questions after the arrest. They typically ask the questions that they need to before you are arrested and therefore can get around Miranda making it easier for you to incriminate yourself during the course of the traffic stop. Additionally, there is a traffic stop exception for Miranda rights and this applies in DUI cases.
Northern Virginia Criminal Defense Group
