An effective way to fight a DUI charge under Virginia Code Section 18.2-266 is to argue the arrest was invalid. While an officer must only show reasonable suspicion to pull you over, they must have greater proof for making an arrest, which is known as probable cause.

An experienced defense attorney will be able to poke holes in the Police Officer’s testimony, which can result in the suppression of the evidence. If the arrest is suppressed the DUI charge will be dismissed.

 

What is Probable Cause

 

In order for a police officer to arrest you they must have what is known as probable cause. Probable cause for a warrantless arrest exists when "the facts and circumstances within

the arresting officers' knowledge are sufficient to warrant a man of reasonable caution and belief that a criminal offense has been or is being committed. Probable Cause requires the showing of a probability or a substantial chance of criminal activity.

 

What can be considered in determining probable cause

 

The test for determining probable cause is the “totality of circumstances.” A judge can take into account any information that was available to an officer at the time.  Below are the most common factors that a police officer will point when arguing that probable cause existed to arrest you:

 

• Driving Behavior: A judge will first look at your driving behavior. It is important to have an attorney who can present a case that shows your driving behavior was not indicative of someone who is intoxicated.

 

• An Officer’s Observations: A judge will also look to the Officer’s observations of your behavior and demeanor during your interaction with the Police Officer. For example, if the officer observed an odor of alcohol coming from your person or that you had red, glassy eyes a judge is more likely to rule the officer has probable cause to arrest you.

 

• Field Sobriety Tests: A judge will then look at the field sobriety tests the officer had you perform and whether there are indications from those tests that you were intoxicated. The most common field sobriety tests are:

  • HGN (Horizontal Gaze Nystagmus)- In this test the officer moves a pen from side to side and you would follow the pen just with your eyes.

  • One Leg Stand- In this test you would stand on one foot with your arms by your side for up to 30 seconds.

  • 9 Step Walk and Turn- In this test you would walk 9 straight steps on an imaginary line. Each step is to be heel to toe. Your arms should be down by your side. You should then perform the test a second time in the opposite direction

• Preliminary Breath Test: The final aspect that a judge can take into account when making a probable cause determination is the preliminary breath test. This is a breathalyzer the officer will ask you to blow into at the scene of the traffic stop. This result can only be used for determining whether there is probable cause to arrest.

 

What if I refuse to Perform Field Sobriety Tests

 

Field Sobriety tests are voluntary so you may refuse to perform them, however if you refuse to perform field sobriety tests, a judge can take that into account when determining whether the Officer had probable cause to arrest you. Refusal to submit to field sobriety tests is not evidence of " consciousness of guilt" and thus such refusal cannot be used by the Prosecution at the reasonable doubt phase to prove you were intoxicated. Jones v. Commonwealth.

 

Can I refuse to blow into the Preliminary Breath Test

 

Before an officer arrests you, he or she will ask you to perform a preliminary breath test. This is a breathalyzer the officer will ask you to blow into at the scene of the traffic stop. This is a trap. If you have had anything to drink that night, our advice is to refuse to blow into the device. There is no penalty in refusing to perform the preliminary breath test. This result can only be used for determining whether there is probable cause to arrest.

 

Virginia Code Section 18.2-267(D) says that if there is any positive indication for the presence of alcohol as a result of the preliminary breath test then the Officer automatically has probable cause to arrest you for DUI.

 

HOW WE CAN HELP

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The consequences of a DUI conviction in Virginia can be immense. The Pickett Law Group, PLLC is an experienced law firm with two generations of former prosecutors and DUI lawyers, who have handled numerous DUI cases. We have successfully fought DUI charges in Fairfax County, Arlington County, Loudoun County, and Prince William County. Contact us today for a free consultation.

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