Last updated on May 2nd, 2019
Andrew: Awesome. So, it’s Wednesday. It’s Law Talk time. I know I’m super excited about what we’re going to be talking about today because we’re going over DUI stuff. We haven’t done traffic things in a while, so this should be really fun.
Andrew: Yeah, so I’m here with Jessica, and we’re going to sort of discuss really like an overview of DUI stuff in general. We’re going to talk about the basics, the penalties for it, losing your license, which is something that a lot of people don’t really associate with it that much, but it’s the penalty that happens all the time.
Andrew: With DUI charges and convictions. So, do you want to just sort of start us off by giving the basics of DUI in Virginia, because I know there’s blood alcohol content cutoffs, there’s what you can do when you’re arrested. Like, there’s a whole breath of things that we could cover for the basics of DUI.
Andrew: Yeah, just dive right on in.
Jessica: I mean, like you said, it’s a long process. It starts, and it’s a big deal in Virginia, especially this is the thing that probably a lot of people don’t take as seriously as they should, but the police take it very seriously. So, it’s good to be aware of … you know, we all hear don’t drink and drive, it’s common sense, but probably more people than we’d like to know do it.
Andrew: So, I follow … or The Tingen & Williams twitter follows the Virginia State Police, and pretty much every single day they put out like an info graphic or an article or something were it’s like, “guys please, don’t drink and drive.”
Jessica: Yeah. I remember when I was an undergrad they had a simulator on campus where you could get behind the wheel. You know, those like video games where you drive, and you get behind the wheel and just practice. Then, they would do it at different levels of impairment. I know for me, that was really the eyeopening moment because a lot of times, even just walking down the street, you think like oh, nobody knows I’ve had a couple drinks. But, it impairs you more than you realize.
Jessica: So, yeah, the DUI process starts when you get behind the wheel after you’ve had some drinks. So, that’s the first point of just don’t do that. After that point, the officers can stop you if they see you driving regularly. Just like if they see you speeding or running a stop sign or a red light, if they see you weaving in and out. They can stop you for that.
Andrew: If they have a probable cause that you are driving impaired in some way. They can pull you over, even just to check in on you to make sure you’re doing all right.
Jessica: And that word gets thrown around a lot, or those words get thrown around a lot, probable cause. We see them on police procedural shows, and what does that mean? It means that the cop has a reasonable suspicion that the law is being broken. So, when they see you run the red light, they have a reasonable suspicion that you just disobeyed the laws of traffic by running a red light, because they watched you do it. When you’re weaving in and out of traffic they have a reasonable suspicion that you’re driving intoxicated because you’re not facing your lane.
Andrew: Doing what’s normal, yeah.
Jessica: Yeah. So, when a cop stops you, I think we’ve talked about in another video, when an officer pulls you over you don’t have to supply them with information about why you’re being pulled over. But, when they ask questions you should respond respectfully. So, when you’re pulled over on suspicion of driving while intoxicated, they’ll probably ask you why you’re being pulled over. They might ask you to get out of your car, and do a field sobriety test, whether it’s alcohol or drugs.
Andrew: Which is different from a breathalyzer test.
Andrew: Which is very important for the law.
Andrew: But, we’ll get into that later.
Jessica: Absolutely. The field sobriety test you’re allowed to refuse.
Jessica: That can’t be used against you. So, even if you’re charged with a DUI and you haven’t taken a field sobriety test, the refusal is not going to be used against you. But, if the cop still believes that … you know, if they smell alcohol on your breath, there’s probably cause, like we said, to arrest you. They can do that. Once you’re arrested, it becomes different.
Jessica: Then, they take the … if they suspect that you’re drinking they’re going to take your blood alcohol through the breathalyzer or through a blood test. Refusing that does carry penalties.
Andrew: Yeah, I mean it’s a crime. I think it’s the first time … what is it? I had it in my notes but, the first time you refuse it’s pretty serious. Things like you lose your license for a year. Then, the second time you lose your license for three years, and it’s also a misdemeanor or a felony or something.
Jessica: Yeah, it’s a big deal because once you’ve been arrested, you’re not suspected seriously. You’re being detained. They suspect you of a crime. So, failing to cooperate with the process is you’re obstructing the process.
Jessica: So, yeah, before you’re arrested you can refuse but after you’re arrested, don’t. Just cooperate.
Andrew: Just comply and then, if something does come up you can talk to your lawyer afterwards.
Andrew: But I know one thing we sort of somewhat glossed over is this sort of talking to the police officer during the stop. And, specifically trying not to incriminate yourself while you’re at the stop. So, you mentioned the police officer is going to ask you questions like “do you know why I pulled you over”. If you say, “because I am driving drunk”, that’s an admission of guilt, which they probably have a body cam, and your case basically just ends there.
Andrew: So, you need to be very, very careful for really any interaction with the police about what you say.
Andrew: Which is just something I want to make sure we emphasize super heavily here.
Jessica: Absolutely. That’s not to … don’t lie to the police.
Andrew: Yeah, don’t lie.
Jessica: By any means, if they ask you if you’ve been drinking you don’t have to say that you’ve been drinking, but don’t also tell them that you haven’t had anything to drink because then, that makes you look bad because now you’ve made a false statement to officers.
Jessica: So, like you said, just be careful about how you say things. Definitely be cooperative and respectful. Don’t lie, but don’t offer up evidence, incriminating evidence.
Andrew: Yeah, I mean I know another thing related to this are the opening container rules in Virginia, which are pretty open. I remember I was looking at, I think it was yesterday or the day before, but if you have an open container in your glove compartment that technically counts under the open container rule where they can us it as cause for a DUI charge and stuff.
Jessica: And I think when you’re in the vehicle it’s anything that’s within the driver’s scope of control, which you wouldn’t think that that’s … you’re like, oh well I can just reach the immediate area in my vicinity but, here we consider that the glove compartment or under the passenger seat or sometimes even the backseat.
Andrew: Anything that’s not in the trunk, basically.
Jessica: Yeah. Or, even the … you know on the back of the seats and you’ve got those pockets on the back.
Jessica: Yeah, that still can be within your scope of control. So, if you’ve got passengers in the backseat that have open containers, they might be allowed to have it but just be cautious about what you’ve got in your vehicle when you’re driving it because that can come back to bite you.
Andrew: Yeah, all the time. If it is your vehicle and you are driving, just make sure you are being very careful about who and what you allow into that vehicle, especially with DUI charges because of how serious it can be.
Andrew: So, we mentioned earlier like the BAC stuff, after you’re pulled over, after you’re arrested, they’ll check your BAC. So, in Virginia it’s what? .08% or higher, blood alcohol content. As the first step. That is the minimum amount that if you’re over 21 you can be charged with a DUI with.
Andrew: Can you just sort of go over the penalties that will result from blowing a .08 breathalyzer, both for license, like losing your license, criminal penalties, which are actually pretty severe in Virginia. It racks up very quickly.
Jessica: Absolutely. Before you’re even go to trial or before your case is even heard you can … your license can be affected by a DUI charge. Your license can be administratively suspended, which basically says it’s a safety measure. It’s not intended as punishment, but it’s a safety measure that says you’ve broken the laws, we don’t trust you to drive. So, the first time I think it’s just a seven day suspended.
Andrew: Yeah, it’s like a week.
Jessica: Yeah. That’s kind of depending on the facts of your case. And, that’s another thing that I think is good to mention at the beginning, is a lot of this is fact based. A lot of it is if you get caught and you’re doing this, and you’re on a residential road going 25 miles an hour, in broad daylight versus if you get caught doing this going 90 miles an hour down 64. Those are really different things and you’re going to face different penalties for those. It’s pretty discretionary but, in general the first time that you get a charge you can get a seven day administrative suspension.
Jessica: Then, again it goes up for each subsequent charge to the point where they can just suspend your license entirely until you go to trial. So, that’s even before you face the actually legal ramifications. So, I think for someone 21 and older, the first DUI charge, the penalty is you can get a fine of $250 or have your license suspended for a year.
Andrew: Yeah, which is a big deal. We’ve talked about collateral consequences before. Losing your license for a year can seriously impact your life.
Jessica: Yeah, and I mean even if you don’t lose it, even it’s just suspended, then if you have any other subsequent infraction, if you get another moving violation, if you’re caught speeding, if you get another DUI you can lose your license permanently.
Andrew: They can snowball very quickly.
Jessica: Yeah, and it can be a big deal. So, that $250 fine, and a suspended license, that’s just the first charge. I think the second charge is $500.
Andrew: Yeah, and then like three years, as well as possible jail time.
Jessica: Yes, which again, that’s one of those things that the judge is going to look at the context of your case. Were you right at .08, and you were obeying the laws of traffic, or were you like a .1 type of thing. Then, the third offense can be classified as a felony.
Jessica: Which is a huge deal. That’s a whole other can of worms. You can lose your job over that. You can lose employment … job and employment is the same thing. If you live in public housing you can lose public housing. These are … a big deal.
Andrew: It shows up on everything.
Jessica: Yeah. Absolutely.
Andrew: You lose certain rights like voting, especially important nowadays, but yeah. Just go and look at our collateral consequences stuff. Felonies are a very big deal.
Jessica: It’s a big deal. So, that’s for 21 and over. Then, if you’re underage it’s an entirely different thing. I think for underage the first offense is $500 fine or 50 hours of community service. But then, it’s also a zero tolerance policy. So, there’s no that .08 limit. If you’re under 21 and you get caught in a DUI that’s it. It doesn’t matter what your BAC was, you’re going to get a DUI.
Andrew: Yeah, basically.
Jessica: Then, the other thing is if you’ve got a higher BAC that’s above, I think it’s .15, it’s more enhanced consequences. So, I think that .15 is automatic potential for five days in jail. So, Virginia takes it very seriously. There’s pretty stiff penalties and, the more reckless, the more facts showing that you’re driving recklessly, the more evidence that they have suggesting you were overly intoxicated, the penalties are just going to go up.
Andrew: Yeah, that’s something I definitely think we want to try and stress is the scalability of DUI stuff in Virginia, because if you go and look at the code, it’s very specific where it’s like on your first offense, on your second offense, on your third offense, if you blow higher than a .08, if you blow higher than a .15.
Andrew: Also, there’s a whole separate set of rules related to the zero tolerance policy you were talking about for underaged people, where it’s like if you blow a … I think it’s like a .02 to a .08, even if a number above 21 person wouldn’t technically get charged with a DUI there, it’s a zero … you lose your license for a year, automatically as an under 21 aged person.
Andrew: It’s very serious, and also if you’re under 21 and you blow higher than a 0.08, you’re tried with the same penalties as if you were an adult. It scales very quickly. Like you said, if you reach a certain higher threshold, the penalties get much more severe. Mandatory minimum penalties, like in jail, huge fines, it’s a huge deal.
Jessica: Yeah. Absolutely.
Andrew: Yeah. So, you may want to speak a little bit to some tips that can sort of help people avoid the harsher penalties for this. I know hiring a lawyer, similar to these scaling penalties is really important, because you can argue for like well, I was just at the threshold. I was still driving safely. I know I messed up. I went to a driver side course or something. There’s a bunch of possible defenses to turn around this mistake into something that won’t seriously impact the rest of your life.
Andrew: So, you maybe want to speak to that a little bit or …
Jessica: Yeah. So, when you’re getting a regular moving violation, like a speeding ticket, you think about going to driver school, but for a DUI or DWI it’s a little different because the infraction isn’t that you’re speeding, it’s that you’re using substances while you’re operating a motor vehicle. So, if it’s … but just like if you go to a lawyer and they’re going to recommend going to driver’s ed classes before you go to court for a ticket. If you go to a lawyer, they’re going to recommend doing other stuff to try to mitigate your punishment.
Jessica: So, if you get pulled over for driving while intoxicated, under the influence of drugs, even if you don’t consider yourself an addict, going to something like NA might be beneficial because what that does is it shows the judge … first of all, it’s a positive effort on your part to take charge of this habit that you have that’s caused you to place other people in danger. Second of all, it shows the judge you take it seriously. That you’ve done something ahead of time before even going to court to try to fix yourself without the court having to fix you.
Jessica: The same goes for alcohol use. If there’s AA, just like there’s NA. Then, there’s also state education programs for alcohol consumption, and alcohol safety and stuff like that that you can participate in. I can’t remember the name of it off the top of my head, but you can … and if you get an attorney, which you should get an attorney first and foremost.
Andrew: Yes, this is not an infraction. This is a serious crime.
Jessica: This is a serious infraction. This is a misdemeanor. So, I mean, it’s going to be on your record, but they’re going to try to get you involved in these programs too. So, that’s the thing that you can do ahead of time. Sometimes you can do community service ahead of time because again, a lot of times the punishment might involve community service. So, if you’re doing it ahead of time it’s just going to show you’re taking responsibility.
Jessica: But yeah, going to the NA or AA meetings kind of shows that you’re taking this seriously.
Andrew: You’re being proactive.
Andrew: Yeah. I know that’s very important because like, as with all criminal charges the code is like penalty of up to some amount of money, some time in jail. So, showing that you’re being proactive of trying to rectify the situation. Identifying that this is a problem and, taking steps to fix it is very important in mitigating the harsher penalties.
Jessica: Yeah, and it doesn’t mean that the judge will give you a lower punishment. It just means that if they can, they can take this into consideration because like you said, sometimes the punishment is up to this much, or you could get five days in jail. So, if you’re thinking about … if you’re a judge and you’re thinking about giving someone jail time, and you have one person that’s gone to taking courses and one person that just kind of shows up, which one are you going to give jail time?
Jessica: You know, so it doesn’t mean that they have to give you less time, it just means that they can, or a lower punishment.
Andrew: Yeah, I mean it just makes you look better in front of the judge, which is very, very important when trying to stay out of jail and avoid these harsher penalties.
Andrew: We actually just got a question.
Andrew: Which is what happens after a third DUI because we mentioned earlier how it scales very quickly from first, second and third, but I know the fourth and subsequent actually have even higher penalties from what we mentioned earlier.
Andrew: I don’t remember if you wrote them down. What was it? Yeah, so this is where we started getting into like mandatory minimum jail penalties and stuff like that. So, you may want to speak for repeat offenders, and how they relate to DUI charges and stuff.
Jessica: Absolutely. So, the other thing, I think the reason that you don’t see fourth DUI classified in the Virginia code is because after the third one this is a felony and you’re going to have your license taken away because that’s part of the consequences. So, if you get another one it’s not just a DUI, it’s also a driving without a license, which is an entirely separate crime. They’re going to charge you with that too.
Jessica: That’s got its whole other own set of consequences that I don’t know off the top of my head. So, to answer your question, what happens after the third DUI is, you’re not just facing a DUI at that point. You’re going to face additional charges. The judge is not going to be forgiving, even if you do these mitigating efforts that we talked about. I mean, you’ve now indicate, you’ve now shown, that you don’t take this seriously. This is a pattern of behavior, and especially in Virginia the law is going to come down pretty hard on you, and you’re going to be facing multiple charges.
Andrew: And I know one trusting part about the Virginia law is that if you get a certain number of DUI’s in a certain number of years, the penalties also get slightly more severe. So, for example, I think it was like two DUI’s within five years results in a mandatory some amount of time in jail. Don’t quote me on that, I’m just trying to remember from reading it yesterday, but yeah, it’s the thing where the more DUI’s and traffic crimes you have within a short amount of time, the more harshly it’s going to be penalized by a judge because it goes back to this idea of well, you’re not taking steps to fix this problem. You’re just repeating the same thing over and over again.
Jessica: And again, it shows that it’s the different between making a mistake, like oh, I had three beers and got on the road. I had three beers in an hour, and I got on the road versus, I know have a pattern of behavior where I consistently drink and I get behind the wheel. Now, you’re a public safety risk. You’re not just someone that’s making a mistake. You’re someone that is making deliberate choices that’s endangering the people around you. That’s a big deal.
Andrew: Yeah, and that’s something that the judge is very much going to read into and take into account when dolling out penalties and stuff like that.
Jessica: Mm-hmm (affirmative).
Andrew: I know one other thing I wanted to note related to this is that a lot of people think that DUI only relates to automobiles, and cars and stuff. But, it’s really any motorized vehicle. I know one interesting thing, we’re actually coming out with an article about this I think next week, which is like DUI if you’re in a boat, because there’s a whole separate set of rules for that. Then, I know another one is like driving a moped on a Virginia highway specifically if you’re intoxicated, is also … follows the exact same penalties that we were just sort of talking about.
Andrew: So, you want to just sort of speak … I don’t know how much you know about this, but it’s very much like … even driving a tractor down the highway if you’re intoxicated. Any motorized vehicle, driving it intoxicated is a very serious issue.
Jessica: Yeah. This is … I actually don’t know too much about this.
Andrew: It’s such a weird side thing of Virginia law.
Jessica: It is. It’s very specific, and I could be wrong about this but I feel like someone has told me at some point that you could technically get DUI riding a bike.
Andrew: Yeah, I can see that. Yeah.
Jessica: But, at the same time, again, this is something that’s contextual. What is a police officer going to pull you over for? I know in Richmond we had somebody driving a tank down the road recently. So, that’s obviously also going to be …
Andrew: Yeah, yeah.
Jessica: An infraction. You’re going to get pulled over if you’re driving a motorcycle. You’re going to get pulled over if you’re driving a moped on the interstate while intoxicated. But, if a cop sees you riding your bike down the street after you’ve had a few too many, again it’s the context, are they going to stop you and ticket you for endanger people for riding a bike when you could be driving? Probably not because it’s a much safer option.
Andrew: Yeah. Still don’t do it, but yeah.
Jessica: Yeah, so again this isn’t me quoting the law. I’d have to look at it because I don’t know specifically but I do know a lot of it is like does this officer believe that there’s … again, it goes back to the reasonable suspicion that a crime is being committed. Are they going to stop you because you’re riding your bike and you’re weaving a little bit? Probably not, unless you’re like [crosstalk 00:21:15] going in and out of traffic, but yeah. If it comes down to driving your tractor down to the ABC store, just stay home.
Andrew: What was that thing? I have a friend who lives in Tennessee where he knows this guy who’ll take his horse to the bar because technically it’s not a DUI because he’s riding his animal around and stuff.
Jessica: I mean, yeah.
Andrew: Don’t quote me on that either, but it’s the funny thing where it has to be a motorized vehicle that you are in control of.
Jessica: I remember that picture that went viral a few years ago of the sorority girl driving the little barbie jeep.
Jessica: That’s what I thought of. So, yeah, that’s technically a motorized vehicle but, it’s also not the safety concerns that a horse would present, or a car.
Andrew: Yeah, that would be an interesting case study, is like can you get a DUI if you’re riding a horse down the sideway or something.
Jessica: Yeah. I feel like if you’re doing that you’ve got some other stuff going on but …
Andrew: Yeah, just a little bit, just a little bit.
Andrew: All right, so was there any final comments you wanted to add about DUI’s Virginia? We could keep talking about this forever. There’s so many very specific things that relate to the specific case that is being brought up.
Jessica: Yeah, I mean this isn’t legal advice but, you know, cops in Virginia take this very seriously.
Andrew: Oh yeah. Any-
Jessica: This is a big deal.
Andrew: Any driving crime in Virginia is like a huge deal, and DUI is especially … they take it … they will nail you to the wall in certain cases.
Jessica: Yeah, because it’s considered in the realm of public safety. Whenever there is a law that’s in the realm of public safety where it’s meant to keep the general population safe, the state is going to take it very seriously. You’re driving a several ton vehicle down the interstate or whatever road you’re on, there’s potential to seriously hurt people.
Andrew: Or even yourself.
Jessica: Yeah, in the time of Uber, there’s no reason to be driving after you’ve had a few. But, if you do, you should call a lawyer because as we’ve talked about in this conversation, a lot of it is based on circumstances, a lot of it is based on the facts of your particular case. So, if you make a mistake and/or if you get pulled over for this, the first thing you should do is call a lawyer.
Andrew: Yep, call a lawyer. Recognize that you have made a mistake, and then take the steps to rectify that mistake in the future.
Jessica: Yeah, absolutely.
Andrew: All right, I think that’s about it for today. We’ve had a nice healthy discussion about DUI stuff.
Andrew: So, we’ll see everyone same time, same place, next Wednesday and, I hope everyone learned a lot about DUI’s today. I know I certainly have. So, thanks everybody!