Defense of Serious Traffic Cases in Virginia

1.1 OVERVIEW
1.101 Types of Offenses
1.102 Uniform Demerit Point System
1.103 Jurisdiction
1.104 Collateral Consequences

1.2 SERIOUS TRAFFIC OFFENSES NOT BASED ON
INTOXICATION
1.201 Reckless Driving
1.202 Aggressive Driving
1.203 Attempt to Elude an Officer
1.204 Hit-and-Run
1.205 Unlicensed Driving
1.206 Driving a Commercial Vehicle While Disqualified

1.3 INTOXICATION-RELATED OFFENSES
1.301 Driving While Intoxicated
1.302 Underage Driving After Illegal Alcohol Consumption
1.303 Commercial Licensees Operating Under the Influence
1.304 DUI-Related Manslaughter
1.305 DUI-Related Serious Bodily Injury

CHAPTER 2: PROCEDURE

2.1 OVERVIEW
2.101 Sources of Law
2.102 Review of Arrest for Compliance with Statutes

2.2 PROCEDURE AT THE SCENE
2.201 Officer in Uniform
2.202 Radar and Other Technology
2.203 Preliminary Breath Test

2.3 PROCEDURE AFTER ARREST
2.301 Misdemeanor Arrest Statute
2.302 Venue
2.303 Implied Consent
2.304 Testing for Drugs and Alcohol
2.305 Pretrial Suspension of License
2.306 Disposition of Arrested Driver’s Vehicle
2.307 Bail

2.4 PRETRIAL MOTIONS
2.401 Motion for Bill of Particulars
2.402 Motion for Discovery
2.403 Motion to Suppress
2.404 Request for Certificate of Analysis
2.405 Motion Challenging Constitutionality of Statute
2.406 Speedy Trial and Double Jeopardy

2.5 PROCEDURES AT TRIAL
2.501 Misdemeanors
2.502 Felonies
2.503 Exclusion of Witnesses
2.504 Motions in Limine

2.6 EVIDENCE
2.601 Generally
2.602 DUI and License Suspension Cases
2.603 Calibrations of Speed-Measuring Equipment
2.604 Preliminary Breath Test
2.605 Admissibility of Certificates of Analysis
2.606 Admissibility of Evidence at Sentencing

2.7 STATUTORY PRESUMPTION OF INTOXICATION
2.701 Definition
2.702 Commercial Licensees

2.8 STATUTORY DEFENSES
2.801 Officer Not in Uniform
2.802 Reasonable Refusal
2.803 Speedy Trial
2.804 Crash Reports Not Admissible

2.9 POST-TRIAL CONSIDERATIONS
2.901 Effect of Conviction on Other Charges
2.902 Effect of Dismissal
2.903 Forfeiture of Vehicle
2.904 Reopening the Case After Conviction

2.10 APPEALS OF MISDEMEANOR CONVICTIONS

APPENDIX 2-1: DECLARATION AND ACKNOWLEDGMENT OF
REFUSAL—BREATH/BLOOD TEST

APPENDIX 2-2: NOTICE OF ADMINISTRATIVE SUSPENSION OF
DRIVER’S LICENSE/DRIVING PRIVILEGE

APPENDIX 2-3: MOTION FOR REVIEW OF ADMINISTRATIVE
SUSPENSION OF DRIVER’S LICENSE/DRIVING
PRIVILEGE

APPENDIX 2-4: REQUEST FOR COPY OF CERTIFICATE OF
ANALYSIS

APPENDIX 2-5: OBJECTION TO ADMISSION OF CERTIFICATE
OF ANALYSIS/VIDEO TESTIMONY

CHAPTER 3: STOPS, ARRESTS, AND SEARCHES

3.1 INTRODUCTION

3.2 STOPS
3.201 Detention of a Citizen by a Police Officer
3.202 Not All Encounters Are Stops
3.203 Stop Includes a Show of Police Authority
3.204 Articulable Suspicion to Stop
3.205 Random Stops Unconstitutional
3.206 Scope of Traffic Stop
3.207 Examples of Unlawful Stops
3.208 Examples of Lawful Stops
3.209 Sources of Articulable Suspicion to Stop
3.210 Stops Pursuant to Community Caretaker Role
3.211 Roadblocks
3.212 Avoiding a Roadblock
3.213 Pretextual Stops
3.214 Scope of Stop
3.215 “Fruits” of Unlawful Stop

3.3 ARRESTS
3.301 Definition
3.302 Probable Cause for Arrest
3.303 Probable Cause in DUI Cases
3.304 Arrest Valid Under Virginia Law
3.305 Where the Arrest Occurs
3.306 Remedy if Arrest Is Illegal or Unconstitutional
3.307 Admissibility of Tests
3.308 Refusal to Take a Blood or Breath Test

3.4 MIRANDA ISSUES
3.401 Prearrest “Custody”
3.402 Facts and Circumstances
3.403 Investigative Detentions
3.404 Postarrest

3.5 SEARCHES
3.501 Introduction
3.502 Blood Alcohol Searches
3.503 Searches Incident to Traffic Arrests

APPENDIX 3-1: MEMORANDUM IN SUPPORT OF SUPPRESSION
OF EVIDENCE

APPENDIX 3-2: RESPONSE TO MEMORANDUM IN SUPPORT OF
SUPPRESSION OF EVIDENCE

APPENDIX 3-3: MOTION TO SUPPRESS EVIDENCE FOR
ILLEGAL STOP

CHAPTER 4: BEGINNING THE REPRESENTATION

4.1 OVERVIEW OF TRAFFIC REPRESENTATIONS
4.101 In General
4.102 Review of Statutes and Case Law

4.2 INITIAL CLIENT CONTACTS
4.201 First Contact
4.202 Before the Meeting.
4.203 First Meeting Agenda
4.204 Should the Client Testify?
4.205 Recommendations for Client Action
4.206 Issues When the Client Is Incarcerated

4.3 REVIEW OF THE COMMONWEALTH’S EVIDENCE
4.301 Police Reports
4.302 Scene of the Incident

4.4 LAY WITNESSES
4.401 Pretrial Interviews Generally
4.402 Interviewing the Client
4.403 Interviewing Other Lay Witnesses

4.5 POLICE WITNESSES
4.501 In General
4.502 Interview of Arresting Officer

4.6 CONTACT WITH THE COMMONWEALTH’S ATTORNEY
4.601 Overview
4.602 Subsequent Meeting with Client
4.603 Negotiated Outcomes

APPENDIX 4-1: MOTION FOR CONTINUANCE

APPENDIX 4-2: ORDER FOR CONTINUANCE

APPENDIX 4-3: CLIENT INTAKE AND INTERVIEW FORMS

APPENDIX 4-4: MOTION FOR TRANSMISSION OF BLOOD
SAMPLE

APPENDIX 4-5: SAMPLE LETTER TRANSMITTING FEE
AGREEMENT

APPENDIX 4-6: SAMPLE FEE AGREEMENT FORM

CHAPTER 5: TRIAL PREPARATION: STRATEGY AND TACTICS

5.1 PREPARATION AFTER THE FACTUAL INQUIRY
5.101 In General
5.102 Information from the Client

5.2 PRETRIAL HEARINGS
5.201 In General
5.202 Bond Hearings
5.203 Pretrial Suspension Hearing
5.204 Pretrial Hearing on Impoundment of Vehicle
5.205 Suppression Hearings

5.3 THE DISCOVERY PROCESS
5.301 In General
5.302 Factors Against Filing Discovery
5.303 Discovery in General District Court
5.304 Discovery in Circuit Court

5.4 OBTAINING AND REVIEWING DOCUMENTS
5.401 In General
5.402 Virginia Uniform Summons or Warrant
5.403 Certificate of Blood Alcohol Analysis
5.404 Witness Requests and Returns of Service
5.405 Criminal Complaint
5.406 Documentation of Prior Convictions
5.407 Certificate of Refusal
5.408 Warrant or Summons
5.409 Certificates of Calibration

5.5 TRIAL STRATEGY AND TACTICS
5.501 Case Evaluation
5.502 Admissibility of Evidence or Statements
5.503 Scientific Evidence
5.504 Focus on the Issues
5.505 The Judge
5.506 Should the Client Testify?
5.507 Expert Witness

5.6 JURY TRIAL OR BENCH TRIAL
5.601 In General
5.602 Factors to Consider
5.603 Constitutionality of the DUI Statute

5.7 EVIDENCE
5.701 Admissibility
5.702 Stipulations

5.8 CROSS-EXAMINATION
5.801 In General
5.802 Purpose
5.803 Opportunities at Trial
5.804 Resources

5.9 DEFENSES USING THE STATUTORY FRAMEWORK
5.901 In General
5.902 Driving While Intoxicated Defense
5.903 Inference of Intoxication
5.904 Driving or Operating a Vehicle
5.905 Driving After Illegal Consumption
5.906 Commercial Operator DWI
5.907 Refusal
5.908 Local Ordinances

5.10 DECISION TO APPEAL

5.11 POST-TRIAL
5.1101 The Confirming Letter
5.1102 Closing the File

APPENDIX 5-1: CHECKLIST FOR BAIL DETERMINATIONS

APPENDIX 5-2: IMPOUNDMENT NOTICE

APPENDIX 5-3: MOTION TO SUPPRESS

APPENDIX 5-4: MEMORANDUM IN SUPPORT OF MOTION TO
SUPPRESS

APPENDIX 5-5: NOTICE AND MOTION FOR DISCOVERY

APPENDIX 5-6: ORDER FOR DISCOVERY

APPENDIX 5-7: DEFENDANT’S MOTION TO COMPEL
DISCOVERY

APPENDIX 5-8: MOTION FOR BILL OF PARTICULARS
(GENERAL DISTRICT COURT)

APPENDIX 5-9: MOTION FOR BILL OF PARTICULARS (CIRCUIT
COURT)

APPENDIX 5-10: OBJECTION TO INTRODUCTION OF
CERTIFICATE OF ANALYSIS

APPENDIX 5-11: SAMPLE CLOSING LETTER (LONG FORM)

APPENDIX 5-12: SAMPLE CLOSING LETTER (SHORT FORM)

CHAPTER 6: TECHNICAL DEFENSES IN SPEED-RELATED
CASES

6.1 OVERVIEW
6.101 Radar Technology
6.102 Additional Resources

6.2 MICROWAVE RADAR TECHNOLOGY
6.201 How It Works
6.202 Flaws in the Technology
6.203 Interference
6.204 Short Transmit Time (Pulsed)
6.205 Operator Error

6.3 LASER RADAR TECHNOLOGY
6.301 How It Works
6.302 Flaws in the Technology
6.303 Operator Error

6.4 OTHER SPEED MEASURING SYSTEMS
6.401 In General
6.402 Pacing (Patrol Vehicle Speedometer)
6.403 Manual Timing Systems

6.5 USE OF EXPERTS

CHAPTER 7: TECHNICAL DEFENSES IN INTOXICATION CASES

7.1 BREATH AND BLOOD ANALYSIS
7.101 In General
7.102 Background

7.2 FIELD SOBRIETY TESTING
7.201 Background
7.202 Early Research in the Laboratory Setting
7.203 Tests by Law Enforcement in the Field
7.204 Development of the Modern Standards

7.3 DEVELOPING A DEFENSE
7.301 Nature of Officer Training
7.302 Most Common Field Sobriety Tests
7.303 Questioning the Tests
7.304 Blanket Evidentiary Objection
7.305 Totality of Circumstance
7.306 One-Leg Stand Test
7.307 Walk and Turn Test
7.308 Horizontal Gaze Nystagmus Test
7.309 Unsanctioned Field Tests
7.310 Refusal of Field Sobriety Tests

7.4 THE PRELIMINARY BREATH TEST
7.401 Use Governed by Statutory and Administrative Law
7.402 Admission at Pretrial Hearings

7.5 THE INTOX EC/IR II
7.501 Statutory Regulation of the Breath Test
7.502 Scientific Principles
7.503 Operating Procedures
7.504 Flaws in the Analysis
7.505 Mouth Alcohol Interference
7.506 Simulation Test Issues
7.507 Compliance Issues

7.6 BLOOD TESTS
7.601 When Blood Tests Are Used
7.602 Statutory Compliance Issues
7.603 Hospital Blood Tests
7.604 Practice Concerns
7.605 Refusal of Tests

APPENDIX 7-1: BLOOD AND BREATH ALCOHOL AND THE LAW

APPENDIX 7-2: UNDERSTANDING STANDARDIZED FIELD
SOBRIETY TESTING

APPENDIX 7-3: SAMPLE LETTER TO DEPARTMENT OF
FORENSIC SCIENCE

CHAPTER 8: SENTENCING AND ADMINISTRATIVE
SANCTIONS

8.1 PREPARATION OF THE CLIENT
8.101 In General
8.102 Client’s Goals
8.103 Factual Problems
8.104 Pretrial Alcohol Evaluation
8.105 Other Pretrial Preparations
8.106 Client “Homework”
8.107 Possibility of Jail Time

8.2 NEGOTIATION PROCESS
8.201 In General
8.202 Immigration Issues
8.203 Reasons for Prosecutor to Deviate
8.204 Prior Offense Documentation
8.205 Focus on Client

8.3 PUNISHMENTS
8.301 Driving While Intoxicated
8.302 Refusal to Submit to Tests
8.303 Leaving the Scene of an Accident
8.304 Eluding Law Enforcement Officers
8.305 Driving After Being Adjudicated a Habitual Offender
8.306 Driving with a Suspended or Revoked License
8.307 Driving When License Restoration Is Contingent on
Proof of Financial Responsibility
8.308 Driving After Forfeiture of License
8.309 License Revocation for Multiple Convictions Under
Section 46.2-391(D)
8.310 Aggressive Driving
8.311 Reckless Driving

8.4 ALTERNATIVE SENTENCING OPTIONS FOR FELONY
CONVICTIONS
8.401 Probation Under Supervision in Community
8.402 Intensive Probation Supervision
8.403 Home/Electronic Monitoring
8.404 Day Reporting Centers
8.405 Boot Camp Incarceration Program
8.406 Diversion Center Incarceration Program
8.407 Detention Center Incarceration Program
8.408 Serving Jail Time on Weekends

8.5 ADMINISTRATIVE SANCTIONS
8.501 Overview
8.502 When the Revocation Period Begins

8.6 RAPID POINT ACCUMULATORS
8.601 The Uniform Demerit Point System
8.602 Driver Improvement Clinics
8.603 Adult Drivers
8.604 Juvenile Drivers
8.605 DMV Intervention
8.606 Suspension for Excessive Point Accumulation

8.7 ADMINISTRATIVE LOSS OF LICENSE
8.701 Administrative Pretrial Suspension for DUI and
Refusal
8.702 Required Revocations
8.703 Suspension for Failure to Pay Costs and Fines
8.704 Failure to Pay Motor Vehicle-Related Judgment
8.705 Administrative Suspension for Serious Offenses
8.706 Restoration of Habitual Offender’s License
8.707 Reinstatement Procedures

8.8 ADMINISTRATIVE IMPOUNDMENT OR IMMOBILIZATION
OF A VEHICLE
8.801 Impoundment upon Arrest for Driving After
Suspension or Revocation
8.802 Impoundment After Conviction

8.9 DISQUALIFICATION OF COMMERCIAL LICENSEES
8.901 In General
8.902 Disqualification for Multiple Offenses
8.903 Disqualification for Felony Drug Convictions
8.904 Requirements upon Disqualification
8.905 Reinstatement of Commercial License

8.10 ADMINISTRATIVE APPEALS
8.1001 Appeals of Nonmandatory Actions
8.1002 No Appeals from Mandatory Actions in Most Cases

APPENDIX 8-1: PENALTIES FOR DUI OFFENSES

APPENDIX 8-2: PETITION FOR RESTORATION OF DRIVING
PRIVILEGE—THIRD OFFENSE

APPENDIX 8-3: PETITION FOR RESTORATION OF DRIVING
PRIVILEGE—HABITUAL OFFENDER

TABLE OF AUTHORITIES

INDEX