Virginia DUI Law: The Private Parking Lot Loophole in Action

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In Villareal v. Commonwealth, No. 0764-13-2 (2013), an off-duty police officer was hired to perform security outside of a restaurant that was part of an outdoor strip mall.  He unfortunately got to witness firsthand an intoxicated woman back her car right into his parked car in the mall’s parking lot.  He promptly arrested her and she was thereafter charged with driving under the influence (4th offense) and driving on a license suspended due to multiple prior convictions for driving under the influence.

The criminal defendant moved the trial court to dismiss her charge of driving on a suspended license under Va. Code § 46.2-391 on the ground that she was not seen driving on a “highway.”  The trial court overruled her motion and convicted her of driving on a suspended license.  She accordingly appealed. Continue reading →

Virginia DUI: Refusing Field Sobriety Tests and Consciousness of Guilt

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Can you refuse to take a field sobriety test in Virginia?  Can that refusal be used against you at trial for DUI in Virginia?

Well, the good news is that you can refuse to take any field sobriety test in Virginia.[1]  See, e.g., Jones v. Commonwealth, 279 Va. 52 (2010).  And, the other good news is that the court cannot use your refusal as evidence of your “consciousness of guilt.”  Id.  But, there’s some bad news. Continue reading →

Virginia DUI: I Saw Him Speeding There

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Can you be convicted of speeding on the basis of an officer’s estimation of your speed?

In Lewis v. Commonwealth of Virginia, Record No. 1195-12-1 (unpublished), an officer was running his radar gun from his moving police cruiser.  He clocked a driver going 56 mph in a 35 mph zone going the opposite direction.  He turned around, flashed his lights, and tracked down the driver who weaved ever so slightly within his driving lane but otherwise was not driving erratically.  The driver looked drunk, smelled of alcohol, admitted to having one beer and one shot, and failed five field sobriety tests.  The officer arrested him for speeding and driving under the influence of alcohol. Continue reading →

Virginia Reckless Driving: See Some Evil, Hear Very Little Evil, Prove No Evil

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An Officer arrives at the scene of an accident.  He sees that one car is stuck in the median.  He sees limited damage to the car.  He notices that it had been raining that day.  He asks the driver what happened.  The driver says that he “hit a patch of water and hydroplaned into the median.”  The officer asks him whether he had been drinking.  The driver says that he “had a few beers.”  The driver says nothing else.  The officer charges the driver with the crime of reckless driving.  The driver does not testify at all at trial per his privilege against self-incrimination.  So is this fact pattern sufficient to find the driver guilty of reckless driving? Continue reading →

Reckless Driving in Virginia: The Temporary Return of Sanity to D.C.

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Mike DeBonis of the Washington Post reports that on Wednesday, September 19, 2012, the D.C. Council unanimously passed emergency legislation requiring the D.C. DMV to exercise “reasonable discretion” in determining whether to suspend one of its own resident’s driver’s license for merely receiving an out-of-state reckless driving conviction.  “D.C. Council fixes DMV’s reckless driving lunacy.”  The D.C. Council’s legislation is in response to the D.C. DMV’s ridiculous practice of summarily suspending the driver’s licenses of its residents as a result of out-of-state reckless driving convictions, including those incurred in Virginia for merely going 81 miles per hour in a 70 mile per hour zone. See our blog post on the topic at Reckless Driving in Virginia: Beware D.C. Residents.

Unfortunately, Continue reading →

Reckless Driving in Virginia: Beware D.C. Residents

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Do I need to hire a lawyer to defend my reckless driving charge in Virginia? Will a reckless driving conviction in Virginiaaffect my driver’s license in Washington, D.C.? The Washington Post, as if it was on the payroll of every traffic lawyer in Virginia, essentially answers each question in the affirmative in its recent article, “D.C. Drivers Hurt by Tough Interpretation of Virginia Offenses.” Here’s why in a nutshell . . . Continue reading →

Virginia Police Searches: Forced Consent

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When is a police search consensual in Virginia?

Police searches are legal in essentially three situations: (i) after a legal arrest, (ii) after a legal investigatory stop, and (iii) after receiving consent from the person to be searched.[1] The police need some degree of suspicion that a crime is afoot or else their arrest or investigatory stop will be deemed an unreasonable search or seizure under the 4th Amendment of the U.S. Constitution.  The police are therefore forced to seek consent to search when lacking sufficient suspicion that a crime is afoot. Continue reading →