As a defense attorney, I have an analysis that I apply to every DWI charge that is initiated by a traffic stop.

  1. Was it a proper stop?
    In order for a client to be convicted of DWI, law enforcement needed to have “reasonable suspicion” that the client was violating a law (criminal or traffic) to have stopped the client.  In Virginia, reasonable suspicion is not a very high standard.  Instances of proper stops would be where the client was speeding, failed to stop at a stop sign, or ran a red light.  These are situations in which the stop is justified by a clear violation of law.

    Instances where a stop may be questionable is where the officer said he pulled the client over for “swerving” or some other general type of behavior that is not objectively in violation of the law. 

  2. Did the officer have probable cause to arrest the client?
    Without probable cause of DWI (or some other offense) the officer cannot further justify his action.  Probable cause is a higher standard than reasonable suspicion, but it’s not as high as “beyond a reasonable doubt” necessary for an actual conviction.

    To obtain probable cause, law enforcement will provide their observations of the client.  For instances, the client smelled of alcohol, admitted to drinking, was driving erratically, was unable to respond to questions, had slurred speech and blood shot eyes. 

    Law enforcement also employs “field sobriety tests.”  These tests include the 9 step walk and turn, one-leg stand, finger dexterity, HGN, and other tests which may or may not be proper depending on the circumstances.  Each test must be evaluated to determine if it was conducted correctly, if it was reliable, and how the client actually performed.

    Also often used is the Preliminary Breath Test (“PBT”).  The PBT is used at the scene of the arrest, where the client blows into the breathalyzer which will then general a number that represents the clients Blood Alcohol Content (“BAC”).  Keep in mind that in Virginia (.08) is the number that is used by the Virginia Code in DWI cases.  If the client submitted to the PBT, law enforcement can testify as to its results (assuming it was conducted properly), ONLY if the arrest is challenged.

  3. Was the client guilty beyond a reasonable doubt?
    Assuming law enforcement has done everything proper up to this point, I then review what other evidence the prosecutor will use to prove the client guilty beyond a reasonable doubt.  This evidence would include the clients statements and behavior after the arrest and when taken to the police station.

    If used, the evidence will also certainly include the results of his breath or blood test.  A thorough review and analysis needs to be made of how the test was conducted, was the device used in proper working order, has it been maintained properly according to local and statute procedure, and was the samples produced handled in a proper manner.  And also, was the person conducting the test the proper person to do so and will they be present at trial.

    While clearly this simplifies my review of DWI cases, I believe it provides a good outline on what needs to be reviewed in any DWI case that is initiated by a traffic stop.  When meeting with your attorney, you must be upfront and honest about everything in the case, so that this analysis can be conducted properly.

For additional questions or concerns, do not hesitate to contact Ben Glass Law at (703)584-7277

James S. Abrenio
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Focusing on criminal, traffic defense and personal injury cases