Virginia Traffic and DUI Defense

DUI Crash Leaves Two Bystanders Dead

2008-06-29T21:26:00.000-07:00

The Richmond Times-Dispatch reports that two people were dead after a May 24 crash in South Richmond that resulted in a 28-year-old man being arrested for driving under the influence and felony manslaughter.

Authorities say that shortly after 11:00 p.m. on the night of the crash, truck traveling eastbound on Snead Road ran off the road and struck a parked vehicle. The impact spun the car around, causing it to strike two people standing beside it.

Police say that Carmen Alejandro Garcia-Hernandez, the driver of the truck, attempted to flee the scene on foot, but witnesses detained him until the arrival of the police.

Police say that the victims, 40-year-old Joseph Owens and 44-year-old Catherine Jones, received transport to VCU Medical Center, but were pronounced dead at the hospital shortly after 1:00 a.m.

Former Virginia Tech Quarterback Marcus Vick Arrested For DUI

2008-06-29T21:15:00.000-07:00

The Associated Press reports that on June 13, former Virginia Tech quarterback Marcus Vick was arrested on charges of driving under the influence and eluding police.

Police said that on the morning of the incident, a uniformed bicycle patrol officer spotted an altercation between Vick, 24, and a female in a car around 2 a.m. The officer asked the pair if assistance was needed then asked to see Vick's license. Police say he sped away, but was stopped not long after.

The police gave Vick a field sobriety test, which he failed, before charging him with driving under the influence, misdemeanor eluding police, reckless driving, driving on the wrong side of the road, and driving on a suspended license. Miami, Florida resident Delicia Cordon, Vick's passenger, was charged with being drunk in public.

Vick was kicked off the Virginia Tech football team after multiple brushes with the law and a reputation of misbehavior on and off the field. His college career ended after pleading guilty to traffic violations in Hampton, as he was under a "zero tolerance" policy at the time.

'Baby DUIs' To Receive Harsher Penalty In Virginia

2008-06-29T21:00:00.000-07:00

The Washington Times reports that a new Virginia law will be one of the harshest in the country on minors caught driving under the influence.

Drivers who are caught with a "baby DUI" (being caught with a blood-alcohol content of 0.02 while under the legal drinking age) will face a a mandatory 12 month driver's license suspension, a jail sentence of up to 12 months, and a $2,500 maximum fine. The new law goes into effect July 1. The previous penalty is a minimum fine of $500 or 50 community service hours.

Delegate William Janis (R-Glen Allen), who introducted the bill, said, "Harsher penalties should go to those who choose to act recklessly."

Supporters of the new law noted that the old penalties were lighter than those for mere possession of alcoholic beverages. Under the new law, the penalties for both will be the same. Drunken driving (DUI) will be elevated to a Class 1 misdemeanor like underage possession.

Maryland and 12 other states have also adopted zero-tolerance policies.

NFL Receiver Dwayne Jarrett Pleads Guilty To DUI

2008-06-29T20:53:00.000-07:00

North Carolina's WRAL TV-5 reports that NFL receiver Dwayne Jarrett of the Carolina Panthers entered a plea of guilty to driving under the influence, minutes before his trial was scheduled to start.

After appearing at the District Court of Mecklenburg County, N.C., Jarrett surrendered his license and was ordered to pay court costs of $420 and perform 24 hours of community service.

Jarrett is also to enter the first stage of the NFL's substance abuse policy, meaning that he is to be subjected to more frequent testing for drugs and alcohol.

Jarrett, 21, was arrested on March 11 in the Charlotte, N.C. suburb, Mint Hill. According to police, he crossed the center line and ran a red light. The police report says that his blood-alcohol level was .12, above the legal limit of .08.

Florida Man Sentenced to Five Years for Multiple DUI Offenses

2008-03-27T21:09:00.000-07:00

Ocala.com reports that on Tuesday, March 18, a 37-year-old man from Florida was sentenced to five years in prison as punishment for his fourth conviction of driving under the influence within the past decade.

The state sought a sentence of 10 years for Michael Douglas Duncan, who attempted to flee from the Ocala, Florida Police officer who tried to pull him over for operating his motorcycle while drunk. In February, he was found guilty of two third-degree felonies, one count of DUI and one count of trying to elude and resist the officer.

After his three previous convictions for driving under the influence, Duncan was labeled as a habitual felony offender and faced a potential maximum sentence of 20 years in prison. Circuit Judge David Eddy gave him the five year sentence, in addition to permanently revoking his driver's license.

Duncan pleaded with the judge, mentioning the his various losses he incurred due to incarceration, including a new home, a business, and time spent with his children. However, the judge dismissed his pleas, saying that he should have considered his children before choosing to get drunk, operate his motorcycle, and flee a Police officer.

Duncan will also have to pay a $2,500 fine in addition to court expenses. He also has to serve three more years in prison for a previous conviction for unemployment fraud.

Connecticut Lawmakers Hope Placing Breathalyzers In Bars Will Reduce DUI Offenses

2008-03-27T20:46:00.000-07:00

Connecticut's the News Times reports that state lawmakers in Connecticut are hoping for a reduction of DUIs with legislation currently under consideration which would provide incentives for bar and restaurant owners to install Breathalyzers in their establishments. If the legislation is passed, it would be the first of its kind in the U.S.

State Sen. Arthur O'Neill (R-Southbury) said he believed the idea to be "very interesting" and said that it could reduce the likelihood of someone drinking and driving.

In the case of a patron getting into an accident due to driving under the influence, the proposed incentive would cut the maximum liability of a liquor permit holder from $250,00 to $100,00. However, the breathalyzer's use would be voluntary and results would not be permitted in criminal or legal proceedings.

According to O'Neill, it would allow for bartenders to deny patrons further drink service until the test is taken. He noted that they are supposed to be trained to be able to tell when a patron has had too much, but when busy, that can be difficult.

Bar and restaurant owners with liquor permits would also be required to post signage which would notify patrons that the establishment would arrange transport for patrons who need a ride home at the customer's expense.

Bethel, Connecticut restaurant owner Dan Mottola says that he has always made it a point to find transportation for customers who have drank too much, even it requires that he has to drive the person himself. He says that monitoring drinking is easier for smaller bar areas like his, but the legislation would be helpful in larger establishments in which monitoring alcohol consumption is more difficult.

Mottola said the legislation would be worth considering if it prevents people from driving drunk, getting into wrecks, and causing harm to others "as long as it doesn't become invasive of personal rights."

Virginia Legislature Revives Bill To Install Ignition-Interlock Devices In Vehicles Of First-Time DUI Offenders

2008-03-27T19:44:00.000-07:00

The Henrico Citizen reports that the Virginia Senate Courts of Justice Committee recently reconsidered and revived legislation which would require all offenders of driving under the influence, even if it is their first offense, to have ignition interlock devices installed in their vehicles. The legislation was passed by both chambers.

On March 3, the Senate Courts of Justice Committee reconsidered House Bill 1442, which the House had already passed. The following day, the Senate passed the bill with substitute legislation and the House passed it unanimously a day later.

The revised bill not only requires the implementation of ignition interlocks after the first DUI conviction, the administrative fee is also raised from $20 to $75.

If the convicted driver is indigent or prohibited from driving a school or commercial vehicle, the bill also allows for the device's cost to be paid out of the criminal fund.

Also added to the bill, which will go into effect on October 1 of this year, is that a $30 monthly fee will be mandatory for the DUI offender.

Delegate Salvatore Iaquinto (R-Virginia Beach), the sponsor of the bill, says that ensuring DUI offenders do not repeat the offense is the only way to ensure that convicted offenders no longer harm people. He believes the legislation will fill that purpose and make Virginia's roadways safer.

The alcohol-ignition interlock device is essentially a Breathalyzer linked to a vehicle's ignition system. The vehicle will not start until the driver blows into the device. Then, the driver's blood-alcohol level must be below the set limit of 0.02 for the vehicle to start.

Under current Virginia law, ignition interlocks are required to be installed in the vehicles of multiple DUI offenders or first-time offenders whose blood-alcohol level registers above 0.15, which is nearly twice the legal limit of 0.08.

Evidence from a "Forced" Blood Test Tossed by Massachusetts Judge in DUI Case

2008-03-06T12:19:00.000-08:00

A Fitchburg, Mass. police officer faced a mountain of incriminating evidence in a May 2007 drunk-driving arrest: a wrecked pick-up truck that he crashed into a telephone pole, a BAC reading of .168, slurred speech, red, glassy eyes and breath that smelled of alcohol.

But the only thing District Court Judge Andrew Mandell was concerned with was how the BAC was obtained. When attorneys filed a motion to suppress the breath test results because blood was taken in a hospital without the defendant’s consent, the judge agreed.

So James Scesny, a police officer with the Northborough Police Department, was found not guilty of the charges and since has applied to rejoin the force.

"Ouch, You Can't Do That"

On the night of the accident, Scesny was transported to Clinton Hospital, where nurses drew his blood. At the time, the officer did not consent to the blood test since he maintained it violated federal, medical privacy laws, according to the Metro West Daily News.

Lawyers for Scesny argued, "When hospital staff mentioned blood alcohol testing to the defendant, he stated he wanted to think about it and that he wanted to contact a lawyer," the motion stated. The attorneys also argued, "Any results from blood drawn by hospital staff for medical purposes is shielded by the Health Insurance Portability and Accountability Act (HIPAA)."

Clinton District Court Judge Martha Breenan agreed with Judge Mandell that, without the BAC test, remaining evidence was insufficient to convict. The defendant was left with a $250 fine for negligent driving. DUI offenders in Texas and New Jersey wouldn’t have shared the good fortune of Scesny.

Texas, New Jersey Law Not as Sympathetic to DUI Suspect

In Texas, the court authorized police to draw blood by force from motorists suspected of DUI. In New Jersey, an appellate court approved the use of “extreme force” in drawing the blood of a motorist suspected of DUI. The Minnesota Appeals Court ruled the practice is allowable only when a search warrant is obtained from a judge.

Ex-St. Louis Cardinals' Scott Spiezio Charged with DUI

2008-03-01T14:38:00.000-08:00

Like manager, like player.

One year after St. Louis Cardinals’ manager Tony LaRussa was arrested for DUI, the team’s utility infielder, Scott Spiezio was arrested for DUI and charged with five other counts.

The Orange County Superior Court in California issued a warrant charging Spiezio with DUI, DUI with a blood-alcohol level of 0.08 percent or more, hit and run, aggravated assault, battery and assault. If convicted, Spiezio faces a maximum sentence two years in prison, according to halosheaven.com.

DUI Charge Just a Part of Spiezio's Problem

Irvine, Calif. police said Spiezio was speeding, cutting across lanes, crossing through the oncoming traffic lanes, driving over a curb and crashing into a fence. When he crashed into the fence, it felled a fence pole. He then exited the vehicle and ran from the scene.
Halosheaven.com reported Spiezio wound up at a friend’s condominium, where he allegedly vomited. When the friend made a comment, Spiezio allegedly punched the man and threw him against a wall.
This isn’t Spiezio’s first problem with alcohol. He left the team in August for outpatient drug and alcohol abuse treatment, before returning to the club late in the season.

LaRussa Pled Guilty to DUI in November

Last March, LaRussa was arrested in Jupiter, Fla., when police found him asleep in his vehicle in the middle of an intersection. LaRussa failed field sobriety tests and was taken into custody. He pleaded guilty to DUI in November and will serve six months’ probation, pay a $678.50 fine, take classes in a DUI offender program and perform 50 hours of community service.

Roanoke Officer Wrecks His Police Cruiser And Is Charged With DUI

2008-02-29T22:02:00.000-08:00

According to Virginia State Police, an officer from Roanoke is facing charges of driving under the influence after he wrecked his police cruiser in Pulaski County on the night of Saturday, February 23.

Shortly after 10:00 p.m. Saturday night was when the wreck took place. Sgt. Mike Conroy, a spokesman for Virginia state police, says that approximately six minutes before the crash happened, they received a 911 call concerning an erratically driven vehicle.

According to Conroy, Officer Andrew Page hit a guard rail after running off the road. The wreck caused his marked Roanoke police car, a 2005 Ford Crown Victoria, to be totaled. Conroy said that Page, in plain clothes at the time, gave investigators his full cooperation. According to court documents, he took a breathalyzer test and was shown to have a blood alcohol content of 0.16, double the legal limit of 0.08.

Page suffered minor injuries in the wreck and required no medical attention, according to Conroy.

Aisha Johnson, a Roanoke police spokeswoman, said that Page received a suspension for the crash and that the department had begun an internal investigation.

Two Residents Of Roanoke County Charged With DUI After Fatal I-81 Crash

2008-02-29T21:56:00.000-08:00

After a chain-reaction crash at a road construction work zone that caused the death of an employee of a paving company, two Roanoke County residents have been accused of driving under the influence.

Early on the morning of Wednesday, February 20, 46-year-old Richard Sloan was killed as he was working with S.R. Draper Paving Company in the Cave Spring area.

Roanoke County police say that 42-year-old Tracie Nininger was being held without bond after being charged with involuntary manslaughter and driving under the influence. A second driver, 32-year-old Jeffrey Dupree, was released on bond after he was also charged with DUI.

Within Same Weekend, Virginia Man Receives Two DUIs

2008-02-29T21:40:00.000-08:00

An Abingdon man who crashed into a state trooper in Smyth County on Friday, February 1 and received charges of drunken driving as a result was placed under arrest a second time two days later, on Sunday, February 3, and charged with intoxication in public and possession of drugs, the Virginia state police said.

A police officer from Chilhowie pulled a vehicle in which Barry Dean Marshall II was a passenger over shortly after 2:00 a.m. Mike Conroy, a spokesman for the Virginia State Police, says that the officer stopped the car because he had earlier received a notification from the Sheriff's Office of Smyth County of an erratically driven vehicle. According to what the arrest warrant said, the vehicle was spotted heading north on Interstate 81 by the officer.

The driver, 21-year-old Traci Peake, was arrested by Chilhowie police and charged with driving under the influence.

Deputies from Smyth County assisting with the stop arrested 32-year-old Marshall during the incident and charged him with public intoxication and possession of drugs with intent to manufacture or sell, according to the arrest warrant.

Conroy said that recently before this arrest, Marshall received DUI charges after striking trooper K.S. Chapman with his vehicle only a few miles down the road from where the second incident took place.

Washington State Crashes Roadblocks

2008-02-19T11:43:00.000-08:00

Roadblocks have hit the skids in the Washington state legislature.

Lawmakers in Olympia, Wash. rebuked Gov. Christine Gregoire’s push to follow the lead of 41 other states’ measure to allow roadblocks in stemming drunk driving. Rep. Steve Kirby, D-Tacoma voted on behalf of his constituents, who thought such a measure was invasive and illegal. “To me, this is a step away from letting the police stop us on the streets and search our pockets and our backpacks,” Kirby said.

Instead, Washington State will rely on its state constitution, which is more concerned with protecting the privacy rights of its citizens than catching potential drunk drivers.

The Fourth Amendment to the U.S. Constitution

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

That is from the Fourth Amendment, what keeps the police from entering your house for no apparent reason. The police can in fact enter your house and conduct a search but they first need a court order signed by a judge.

You would assume the Fourth Amendment would apply to people’s cars and you would be right. The police cannot legally search a car for no reason in a parking lot, unless they have “probable cause.” If police notice a car with a marijuana leaf painted on the hood, and the license plate reads “DRUGDEALR,” and there is funny-smelling smoke coming out of the windows, that is probable cause. But if the car is a minivan with nothing strange about its appearance, the police can’t search it because they feel like it.

Supreme Court Has Its Own Interpretation

The United States Supreme Court in Michigan v. Sitz found while sobriety checkpoints were apparent violations of the Fourth Amendment, they were only ”minor” violations. Permitting police to stop citizens without reason to believe they had done anything wrong, Chief Justice Rehnquist said, was permissible in view of the government’s ongoing “War on Drunk Driving.”

The dissenting opinions, led by Justice Brennan, stated that "the findings of the trial court, based on an extensive record and affirmed by the Michigan Court of Appeals, indicate that the net effect of sobriety checkpoints on traffic safety is infinitesimal and possibly negative." So aside from not really working, they also violate our fourth amendment rights.

As stated by Justice Brennan: "That stopping every car might make it easier to prevent drunken driving ... is an insufficient justification for abandoning the requirement of individualized suspicion.”

As constitutionally correct as Justice Brennan was, he was still in the dissenting opinion, so on a federal level, sobriety checkpoints are okay. But there are still states that view sobriety checkpoints as unconstitutional. Unfortunately, Virginia isn’t one of them.

Va. House Passes Ignition Interlock Law

2008-02-14T06:52:00.000-08:00

Vehicle ignition interlock devices for those convicted of DUI offenses in Virginia moved halfway to reality after the House of Delegates passed the measure by an 80-28 margin this week.

But that is only part of the predicament for DUI offenders.

Since the Alcohol Safety Action Program (ASAP) contracts only with Draeger Safety Inc. to supply the device, violators could be waiting forever to get their vehicles back from the shop. But if the General Assembly forced ASAP to open the bid process, interlock installation costs likely would decrease.

Free Enterprise Seems Missing from Ignition Interlock Sales in Virginia

Draeger is the world's-largest manufacturer of breath alcohol analyzers, including the ingnition interlock device. Numerous manufacturers offer similar products and want to conduct business in Virginia. But for now, ASAP is honoring its exclusive contract with Draeger.

The ignition interlock is a breath alcohol analysis device that prevents an "alcohol-impaired" individual from starting the vehicle ignition, according to Draeger's web site. Furthermore, re-tests are randomly required during operation of the vehicle. The Interlock system records comprehensive information on the operation of a vehicle equipped with such a device. The data is provided to authorities which verify motorist compliance with the law/Interlock program.

House Bill 1442 -- sponsored by Del. Sal Iaquinto (R-Va. Beach) -- now goes to the Senate. Twenty-eight delegates cast "nay" votes, including 14 from Northern Virginia.

If the bill becomes law, it would require the ignition interlock following a first DUI conviction and raise the administrative fee from $20 to $75. The cost of the device would be paid from the criminal fund for indigent offenders. Violators also would be prohibited from driving a school bus, school vehicle or any vehicle transporting 15 or more passengers.

Virginia Counties

2008-02-13T15:26:00.001-08:00

Map Courtesy of Digital Map Store

Free Consumer Guide "How to Choose a DUI Lawyer in Virginia"

2008-02-05T10:40:00.000-08:00

Richmond Virginia DUI Lawyer Bob Battle has written a free Consumer Guide to help those charged with DUI/DWI in Virginia to make the critical decision of who they will hire to represent them at trial. To learn more, watch the video below. To instantly receive your free copy, go to www.VirginiaDUIlawInfo.com.

Bob Battle adds new Virginia DUI Blogs

2007-02-07T10:11:00.000-08:00

Bob Battle has added a new Virginia DUI blog at a new web address- the new website is hosted by the amazing internet geniuses at ClarisLaw.com. Click here to visit "Virginia DUI Lawyer"

Sneak Preview of Most Highly Anticipated True Crime Novel of 2007

2007-01-31T09:29:00.000-08:00

Everyone who had the pleasure of watching him in the courtroom knew that Kevin Flynn was an outstanding trial lawyer. In fact, he quickly rose to be chief of the homicide section in the D.C. U.S. Attorney's office and had an amazing string of convictions that led to him being named that office's top trial lawyer. I knew that Kevin was also an outstanding writer but he will now have something other than Editor-in-Chief of the Bishop Ireton High School "BI Word" at the top of his writing resume! The entire world is about to see Kevin's amazing debut which has already become the most highly anticipated true crime novel of the year.

My good friend, Kevin Flynn has written a true crime novel to be released March 1, 2007,by the major publishing company G.P.Putnam's Sons. His book is already getting rave reviews from the big shots of this genre Jonathan Harr (author of “A Civil Action” -movie starred John Travolta and Robert Duvall) , George Pelecanos (best-selling crime novelist and writer/producer of HBO’s “The Wire”) and Ronald Kessler (prolific writer with books about the FBI, CIA, Joseph Kennedy, the Bush administration, etc.), to name a few.

Book Description

If One L is the book to read before law school, Relentless Pursuit is the book to read after- a real-life legal thriller that shows, from the inside, a prosecutor's quest to deliver justice to a family devastated by murder.

What happened to Diane Hawkins and her daughter Katrina- a brutal double murder in which the girl's heart was cut from her body- devastated a Washington, D.C., community and left its mark on everyone involved in the subsequent investigation. Especially moved was federal homicide prosecutor Kevin Flynn. He had handled any number of grisly murders, and was no stranger to the depravity of the human soul. Yet the way Hawkins's family and friends rallied together to help each other through the tragedy- and the generosity they extended to Flynn, whose own father was dying of cancer at the time- turned this case into a personal mission. He was determined to use his position to effect real closure, to right a wrong- to bring justice on behalf of the victims and their families.

Relentless Pursuit is the story of that journey to justice, an intensely gripping beat-by-beat reconstruction of the events as they unfold-the murder, the arrest, the trial, the verdict-told with astonishing candor, and providing a behind-the-scenes glimpse into the life of a dedicated prosecutor. Above all, it's about healing and community, a story in which, in the end, the system works and justice prevails.

About the Author
Kevin Flynn has been a prosecutor in the U.S. Attorney's Office since 1987 and recently served as chief homicide prosecutor. More importantly, he is godfather to Conor Battle and father of Bob Battle's godson, Connor Flynn.

Because of my obvious inside connections, I was able to obtain a pre-release copy of this riveting thriller (feel free to use that quote, Kev!) and was able to work out a deal to offer the book for sale at a discount for all pre-release purchases at Amazon.com.

Pre-Order Today (Release Date 3/1/07)

Former University of Virginia Football Coach George Welsh Charged with DUI in Virgina

2007-01-10T19:58:00.000-08:00

Former University of Virginia football coach George Welsh faces a charge of driving under the influence (DUI) in Albemarle County Virginia.

Welsh's first appearance in Albemarle County General District Court is scheduled for tomorrow morning.

The news reports stated that Welsh, age 73, failed a field sobriety test and that he also was charged with Refusal to take a breath test. Expect the prosecution to have a very difficult time proving their case if Welsh was only given one field test. For example, if the test Welsh failed, was the field alcosensor, this result is not admissible at trial. If he failed the walk-and-turn or the one-leg stand, the instructions for these tests say that they should not be given if the accused is 50 or more pounds overweight, suffers from a disablility, or is over age 60. Thus, an experienced defense attorney who is aware of the insructions, will be able to keep the results of these tests out of evidence.

Just today, Bob Battle obtained an acquittal on a DUI in Arlington, Virginia, for a client who was more than 50 pounds overweight and was still asked by the officer to try the one-leg stand and heel-to-toe tests. This is another great example of 1 of the 8 secrets Bob Battle Reveals in his article, "Ex-Prosecutor Bob Battle Reveals: 8 Secrets Your Prosecutor Doesn’t Want You To Know About Your Virginia DUI"- The police officer did not follow proper procedures for the field sobriety tests.

Perhaps Welsh will offer a novel defense at trial- he has to drink heavily to try to forget that the coach who replaced him, Al Groh, is making millions to field a team that is not even bowl eligible!

For more about George Welsh's case, click here.

Media Coverage of Richmond New Year's Eve Drunken Driving Tragedy

2007-01-07T20:10:00.000-08:00

On New Year's Eve in Richmond Virginia, a 16-year-old girl, who had been drinking, was involved in an accident and killed another motorist; the cruel irony is that the deceased was a popular bartender known to be vigilant about not letting his customers drive home drunk.
Richmond Times-Dispatch columnist Ray McAllister has written two columns on the deadly incident.
"Deaths from drunken driving preventable"
and "Snapshot: Underage Drinking in Virginia"

Kansas City Chiefs Defensive End Sentenced to Jail for DUI

2007-01-07T19:53:00.000-08:00

Kansas City Chiefs defensive end, Jared Allen, will spend 48 hours in jail after a municipal judge revoked an agreement for Allen to participate in a DUI diversion program and found him guilty of DUI. Allen was stopped for DUI in Overland Park Kansas in May 2006. He was granted diversion in July, but was arrested for DUI, again, in September. Because he violated the terms of the program, the judge revoked his diversion agreement. Allen pled to DUI and the judge sentenced him to 48 hours in jail, a $500 fine, and a 90 day suspended sentence.

Allen must still face a judge in February for the September DUI arrest.

The Chiefs' season ended yesterday with a playoff loss to the Indianapolis Colts.

Erosion of Rights for DUI Defendants is Dangerous Precedent for American Judicial System

2007-01-07T19:39:00.000-08:00

In his outstanding DUI Blog, California DUI lawyer Lawrence Taylor describes the danger of the continued erosion of rights for DUI defendants with respect to the overall American criminal justice system.

"A majority of the U.S. Supreme Court has been consistent in depriving the accused in DUI cases their constitutional rights.

So...we have seen a steady flow of appellate decisions at all levels taking away the constitutional rights of those accused of DUI. Again, so what?

Again, precedent: What happens today to a citizen accused of DUI can happen tommorrow to a person accused of any other offense. If police can set up roadblocks to check everyone for intoxication, they can set them up to search for drugs (which, incidentally, has already happened). If a citizen accused of DUI has no right to a jury of his peers, then the precedent exists to deny the right to citizens accused of any other crime."

To read Taylor's entire post, click here.

"Merry Christmas! You're Under Arrest!" A History Of Sobriety Checkpoints

2007-01-03T07:07:00.000-08:00

The holiday season brings with it times with friends and family, beautiful decorations, well cooked meals with loved ones, and the joy of giving gifts to those that you love.

It’s also the season of quasi-constitutional things like roadblocks.

You’ve seen the commercials and heard the warnings on the radio, and perhaps you have even been stopped and been made to blow into a breathalyzer, or made to do that strange ballet where you have to close your eyes, stand on one leg, and throw your head back, which is practically impossible to do even if you haven’t been drinking.

As you are being made to breathe into a tube or play hopscotch on the side of the road, a few questions might occur to you, the first one being “Is this even legal? Isn’t there something in the Constitution about probable cause or search and seizure or something?”

The answer is yes.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

That is from the Fourth Amendment, and this is the sort of thing that keeps the police from entering your house for no apparent reason and rooting through your belongings. The police CAN in fact enter your house and root through your belongings, but they have to go to a judge and present a lot of good and solid legal reasons as to why they want to.

You would assume that the Fourth Amendment would apply to people’s cars, and you would be right. The police cannot legally search a car for no reason in a parking lot, unless there is something called “probable cause.” For instance, if the police see a car in a parking lot with a marijuana leaf painted on the hood, and the license plate reads “DRUGDEALR,” and there is funny smelling smoke coming out of the windows, that is a fine example of probable cause. But if the car is a minivan with nothing strange about it, the police cannot search it just because they feel like it.

So how on earth are DUI checkpoints legal, where they can stop every car that comes down the road? Or every second or third car? How did they manage to hang an asterisk on the fourth amendment? Why are you freezing on the side of the road, or, even worse, why is your life being ruined because of the two glasses of wine that you had with your Christmas Dinner?

Michigan Checkpoints

In 1986, the Michigan State Police announced that they were going to start placing well publicized and well staffed sobriety checkpoints on some roads that had experienced high levels of drunk driving accidents. Before the checkpoints were even put into action, a Michigan citizen named Rick Sitz filed suit to stop it. It should be mentioned that Rick Sitz did not do this because he enjoyed drinking and driving, but because he quite rightly thought that stopping everyone at random to see who had been naughty or nice was a gross violation of privacy and fourth amendment rights.

The lower courts of Michigan agreed with Mr. Sitz, but the case was appealed all the way to the U.S. Supreme Court. Michigan Department of State Police v. Sitz was heard in 1990. In a 6-to-3 decision, the Court held that the roadblocks did not violate the Fourth Amendment. The Court noted that "no one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it." The Court then found that "the weight bearing on the other scale--the measure of the intrusion on motorists stopped briefly at sobriety checkpoints--is slight." Perhaps the justices had been chauffered around DC for so long that they forgot what it was like to be arbitrarily pulled over and told to blow in a tube. The Court also found that empirical evidence supported the effectiveness of the program.

What was the empirical evidence that supported it? According to the brief:

The first - and to date the only - sobriety checkpoint operated under the program was conducted in Saginaw County with the assistance of the Saginaw County Sheriff's Department. During the 75-minute duration of the checkpoint's operation, 126 vehicles passed through the checkpoint. The average delay for each vehicle was approximately 25 seconds. Two drivers were detained for field sobriety testing, and one of the two was arrested for driving under the influence of alcohol. A third driver who drove through without stopping was pulled over by an officer in an observation vehicle and arrested for driving under the influence.

Out of 126 vehicles, they got two guys. One made it obvious by trying to run the stop, and the other was given the field sobriety test, which is, as mentioned before, difficult to complete even when you are sober. While groups like MADD make it seem like you can’t go out to get the newspaper without coming across a highway full of drunken drivers, the numbers simply don’t back up this supposed need for draconian measures like roadblocks.

The dissenting opinions, led by Justice Brennan, stated that "the findings of the trial court, based on an extensive record and affirmed by the Michigan Court of Appeals, indicate that the net effect of sobriety checkpoints on traffic safety is infinitesimal and possibly negative." So aside from not really working, they also violate our fourth amendment rights. As stated by Justice Brennan: "That stopping every car might make it easier to prevent drunken driving ... is an insufficient justification for abandoning the requirement of individualized suspicion.”

As constitutionally correct as Justice Brennan was, he was still in the dissenting opinion, so on a federal level, sobriety checkpoints are okay. But there are still states that view sobriety checkpoints as unconstitutional. Unfortunately, Virginia isn’t one of them.

I’m at a checkpoint. Now what?

As with any routine stop, you are required to provide identifying information such as your name, address, driver's license, and registration. By law, you do not have to say anything. But what you should do is say as little as possible. Anything you say could potentially be used against you. Admitting to drinking or consuming drugs (even in small amounts: “I just had one!”) can be construed as admitting guilt.

And always remember, don’t give up. A DUI conviction can absolutely ruin your life.
It costs you time, money, and freedom. A skilled attorney could get the charges reduced, or even get the charges thrown out.

If you or a loved one is facing a DUI charge, contact Bob Battle for a free legal consultation today.

Visit Bob Battle's Website

2006-12-28T20:46:00.000-08:00

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Marlins' Willis Arrested for DUI and Refusal

2006-12-22T07:50:00.000-08:00

Florida Marlins pitcher Dontrelle Willis was arrested Friday on a drunken driving charge along a Miami Beach street lined with nightclubs, police said. A police officer saw Willis get out of his Bentley and urinate in the street arounf 4:30 a.m. The officer noted that Willis failed a sobriety test, could not keep his balance, and had a "strong smell of alcohol." (Note- alcohol has no odor.)
Willis later refused a breath test.
To read more click here.

If "The Night Before Christmas" was Written by a Lawyer

2006-12-22T06:45:00.000-08:00

I hope you enjoy this version of "The Night Before Christmas" in Legalese. Merry Christmas. If I can leave you with my Christmas wish, it is that we will teach and develop religious tolerance. In my opinion and belief, religious intolerance is not a Christian way of viewing others. I wish this belief were shared by Mel Gibson and fellow Virginian Virgil Goode. I will pray for them on Christmas Eve. (I gave up on Jerry Falwell a long time ago!) Have a happy, healthy and safe holiday.

THE NIGHT BEFORE CHRISTMAS in Legalese

Whereas, on or about the night prior to Christmas, there did occur at a certain improved piece of real property (hereinafter "the House") a general lack of stirring by all creatures therein, including, but not limited to a mouse.

A variety of foot apparel, e.g., stocking, socks, etc., had been affixed by and around the chimney in said House in the hope and/or belief that St. Nick a/k/a St. Nicholas a/k/a Santa Claus (hereinafter "Claus") would arrive at sometime thereafter.

The minor residents, i.e. the children, of the aforementioned House were located in their individual beds and were engaged in nocturnal hallucinations, i.e. dreams, wherein vision of confectionery treats, including, but not limited to, candies, nuts and/or sugar plums, did dance, cavort and otherwise appear in said dreams.

Whereupon the party of the first part (sometimes hereinafter referred to as ("I"), being the joint-owner in fee simple of the House with the party of the second part (hereinafter "Mamma"), and said Mamma had retired for a sustained period of sleep. (At such time, the parties were clad in various forms of headgear, e.g., kerchief and cap.)

Suddenly, and without prior notice or warning, there did occur upon the unimproved real property adjacent and appurtenant to said House, i.e., the lawn, a certain disruption of unknown nature, cause and/or circumstance. The party of the first part did immediately rush to a window in the House to investigate the cause of such disturbance.

At that time, the party of the first part did observe, with some degree of wonder and/or disbelief, a miniature sleigh (hereinafter "the Vehicle") being pulled and/or drawn very rapidly through the air by approximately eight (8) reindeer. The driver of the Vehicle appeared to be and in fact was, the previously referenced Claus. Said Claus was providing specific direction, instruction and guidance to the approximately eight (8) reindeer and specifically identified the animal co-conspirators by name: Dasher, Dancer, Prancer, Vixen, Comet, Cupid, Donner and Blitzen (hereinafter "the Deer"). (Upon information and belief, it is further asserted that an additional co- conspirator named "Rudolph" may have been involved.)

The party of the first part witnessed Claus, the Vehicle and the Deer intentionally and willfully trespass upon the roofs of several residences located adjacent to and in the vicinity of the House, and noted that the Vehicle was heavily laden with packages, toys and other items of unknown origin or nature. Suddenly, without prior invitation or permission, either express or implied, the Vehicle arrived at the House, and Claus entered said House via the chimney.

Said Claus was clad in a red fur suit, which was partially covered with residue from the chimney, and he carried a large sack containing a portion of the aforementioned packages, toys, and other unknown items. He was smoking what appeared to be tobacco in a small pipe in blatant violation of local ordinances and health regulations.

Claus did not speak, but immediately began to fill the stocking of the minor children, which hung adjacent to the chimney, with toys and other small gifts. (Said items did not, however, constitute "gifts" to said minor pursuant to the applicable provisions of the U.S. Tax Code.)

Upon completion of such task, Claus touched the side of his nose and flew, rose and/or ascended up the chimney of the House to the roof where the Vehicle and Deer waited and/or served as "lookouts." Claus immediately departed for an unknown destination.

However, prior to the departure of the Vehicle, Deer and Claus from said House, the party of the first part did hear Claus state and/or exclaim: "Merry Christmas to all and to all a good night!" Or words to that effect.

Marijuana Top U.S. Cash Crop, Policy Analyst Says

2006-12-19T12:59:00.000-08:00

A study released Monday by an advocate of medical marijuana use said that U.S. growers produced nearly $35 billion worth of marijuana annually, making the illegal drug the country's largest cash crop. This figure is larger than that for corn and wheat combined.

The report, conducted by Jon Gettman, a public policy analyst and former head of the National Organization for the Reform of Marijuana Laws, also concluded that five United States states produce more than $1 billion worth of marijuana apiece: California, Tennessee, Kentucky, Hawaii and Washington.

Gettman, who waged an unsuccessful six-year battle to force the government to remove marijuana from a list of drugs deemed to have no medical value, based his figures on several government reports between 2002 and 2005 estimating the United States produced more than 10,000 metric tons of marijuana annually.

To read more, click here.

MADD Uses Donations to Buy Beer for Virginia DUI Defense Lawyer!

2006-12-13T14:34:00.000-08:00

Yesterday, I received a fundraising letter from the Mothers Against Drunk Driving Richmond Area Annual Fund Campaign. The letter was sent from their headquarters in Irving, Texas. The letter was filled with lots of hyperbole and exclamation points and urged me to join the fight against "America's drunk driving nightmare." (Despite what the letter implicates, I have previously posted that drunk driving deaths have decreased in Virginia.)

The letter included a real check for $2.50 with the following advertising copy, "You can cash it if you choose, but I'm counting on you not to. To be honest I needed to get your attention and I felt the check was a good way to do that. It may not seem like much- $2.50- but you wouldn't simply overlook that sum, would you?" The letter went on to state that MADD is going to send a petition to Governor Kaine asking for "increased sobriety checkpoints, stiffer penalties for providing alcohol to minors, and prosecuting repeat offenders to the extent provided by law." I believe the well-paid copywriter meant to say, "prosecuting repeat offenders to the full extent provided by law."

The letter then states: "You see, we've seen a serious decline in contributions and were worried that some of our life-saving programs will suffer in the months ahead." There may be a very good reason for the decline in contributions. The public is becoming increasingly aware that MADD has a very poor rating for its extremely high costs of administration and fund raising versus the amount of money that actually goes to charity. California DUI guru Lawrence Taylor, a long-time critic of MADD, was kind enough to let me share with you his post on this issue, originally reported in his blog- www.duiblog.com.

As I've posted repeatedly in the past, Mothers Against Drunk Driving is a self-serving beaurocracy focused equally on Prohibition and cash. According to their own IRS statements, the U.S. organization alone brings in over $50 million a year in contributions -- and, according to watchdog Charity Navigator, has a low 2-star efficiency rating out of 4 (the Director of Program and Development, for example, is paid $152,408 a year).
It would appear that MADD's sister organization to the north is similarly oriented:

MADD Rejects 'Disgruntled' Critics

Charity's CEO dismisses volunteers' complaints that so little of donations go to programs

Toronto, Dec. 10 -- MADD Canada's top official has called a group of relatives of drunk driving victims who complained about his charity "disgruntled" and lashed out at the Star for exposing its high fundraising and administrative costs...

A story published in the Saturday Star revealed that Mothers Against Drunk Driving Canada has such high costs that only about 19 cents of every dollar goes to victim services and the fight against drunk driving.

In addition to a detailed analysis of MADD's financial records, the story was based on interviews with leading volunteers of MADD who all work with the charity because they lost a loved one to a drunk driver.
The volunteers believe in the counselling and public awareness work of their local chapters but agreed to speak out against the charity's administration to force a change and restore confidence in what was once a low-cost, grassroots charity.
In his news release, (MADD CEO Andrew) Murie dismissed their complaints and said they are "obviously disgruntled with the organization."...

Yesterday, more than 100 MADD donors contacted the Star to say they had been suspicious of MADD's fundraising practices due to the high volume of telemarketing calls and other fundraising contacts they receive, sometimes monthly. MADD has numerous paid fundraising campaigns, using paid telemarketers, a company that sends people knocking on doors, a direct mail company and a company that distributes chocolate mint boxes around the province.
"I am absolutely furious at reading what MADD is doing with donors' dollars," said Joyce Williamson, 77, a widow who has made frequent $25 donations to MADD for many years.
When she learned from the Star article that so little of her cheque was going to charitable works, she decided not to give to MADD again.
She said MADD's paid door and phone canvassers used "emotional blackmail" by pressing her on the phone or at the door with numerous stories of drunk driving fatalities. The Star's story revealed that telemarketers work off a script that encourages them to press prospective donors three successive times after the person has said "no."

The Star's investigation found the paid fundraisers take most of the money, and send the remainder to head office.

And the "War on Drunk Driving" goes on...

-Lawrence Taylor

So, I know you are wondering-what did I do with the check for $2.50? Of course, I cashed it and used it to buy a beer at 7-11 and raised a toast to people like Larry Taylor who are willing to tell the truth and are willing to request that the public and legislatures use a little more common sense and a lot more Constitution in examining what is an extremely complicated issue.

I would never contribute a dime to a charity that doesn't rate at least 3 stars on Charity Navigator. For those of you who may have contributed to MADD- you know that $2.50 went to whet my whistle, now you should demand an explanation why so much of the remaining $49,999,997.50 was spent on salaries and fundraising.

Henrico County Police Officer Receives Slap on the Wrist for Stealing and Dealing Marijuana

2006-12-08T10:00:00.000-08:00

An ex-Henrico County, VA, police officer who was caught stealing marijuana from the Henrico County police evidence room and providing some of it to his wife, received no jail time and a $100 fine pursuant to a plea bargain. The officer, Charles Harpster, was originally charged with felony charges of drug distribution and obtaining drugs by fraud. Harpster initially came under suspicion of being involved with the "hippy lettuce" when he was constantly telling his fellow officers that he was tired of doughnuts and would prefer picking up a bag of Doritos at the local 7-11! (Sorry, that line was just too easy!)

In one of the more bizarre (and useless and unnecessary) special conditions of a sentence I have ever seen, Harpster agreed that he would not serve as a police officer for at least 10 years. Harpster, age 51, had been an officer in Henrico County for 30 years and was preparing to retire at the time he was caught stealing the marijuana. Unless he was considering applying for a job in the Henry County Sheriff's Department (see "Grand Jury Indicts Virginia Sheriff, Deputies") there probably aren't a lot of openings in law enforcement for 51-year-olds who have been fired for stealing drugs from the police evidence room and distributing the drugs to others!

To read more on this topic, click here

Virginia DUI-Related Deaths Down for Third Straight Year

2006-12-04T08:41:00.000-08:00

The 2005 Virginia Traffic Crash Facts report shows a decrease in alcohol-related traffic fatalities for the third straight year. Additionally, fatalities and injuries resulting from teen alcohol-related crashes both saw double digit decreases in the past year. The document is the result of cooperative efforts of the Virginia Department of Motor Vehicles (DMV), the Virginia Department of State Police (VSP), and the Virginia Department of Transportation (VDOT).

The DMV press release also points out that "(n)ew legislation over the past several years makes Virginia home to some of the toughest DUI laws in the country. Increased DUI checkpoints, higher fines and mandatory jail terms have helped heighten awareness of drunk-driving enforcement in the Commonwealth."

To read more about this report, click here.

New Prison Comedy Movie No Laughing Matter

2006-11-25T17:51:00.000-08:00

In addition to his law practice, Richmond DUI and traffic lawyer Bob Battle has gained international attention for what he does when he is not practicing law- as a professional comedian and actor, as the press box announcer for the Washington Redskins, and even as a model for the tabloid Weekly World News. ("Woman Has Twins by Different Fathers!") As a result, he is in great demand as a speaker- both as a comedian and as an expert on the art of persuasion. Bob is converting his popular lecture "Winning Your Trial With Style: Teaching Lawyers the Untaught Art of Persuasion" into a book. Here he comments on a new movie about prison which is being marketed with the phrase "Don't Drop the Soap."

The Richmond Times-Dispatch reports that prisoner advocates are protesting a new film that makes light of what an expert has called one of the major untreated human-rights abuses in America today.

"Let's Go to Prison," a comedy released by Universal Pictures this month, is being marketed with the phrase: "Don't drop the soap."
That has angered Keith DeBlasio, founder of AdvoCare Inc., a nonprofit organization promoting criminal-justice reform, prompting him to write a Nov. 19 letter to Vivendi Universal Entertainment's president and CEO, Ron Meyer.
DeBlasio asked: "Would you promote a comedy that makes fun of women being raped? I hope the answer is, 'No.' Would you use the sexual molestation of a child as a way to gain a few laughs? I don't think so. So why is it so easy for you to chuckle at something that is so devastating to the actual victims?"

"I am one of those victims," wrote DeBlasio, who has also called the company's public relations offices. Other groups, including Virginia Citizens United for Rehabilitation of Errants and Stop Prisoner Rape, are upset by the movie.
Universal representatives did not return calls yesterday.

The movie's Web site, http://www.letsgotoprison.com/, notes that there are about 2.2 million inmates in U.S. jails and prisons and then states that, "While a sad statement on poverty, crime and our legal system . . . it also provides a few writers with very twisted senses of humor one undeniable thing: fodder for dark comedy."

In a statement released Monday, Lovisa Stannow, co-executive director of Stop Prisoner Rape, complained, "Sexual violence in detention shatters human dignity and derails justice, but as long as late-night television shows, sitcoms, and movies deem this type of abuse amusing, there will be no public outcry to end it"

In 1996, two years after DeBlasio entered the Federal Correctional Institution in Milan, Mich., the leader of a gang started making passes at him. DeBlasio was convicted of interstate trafficking of forged securities and embezzlement.
The 6-foot, 2-inch, 210-pound DeBlasio, who would later serve time in a Virginia prison, was forcibly raped more than 30 times over two months by the inmate, who was armed with a knife and had AIDS.

As someone who has performed as a professional comedian and represented clients who have been raped in prison, I am absolutely amazed at the marketing of this movie and comments about "dont' drop the soap", "dark comedy" and "twisted" comedy. Most of my favorite comics are constantly on the edge and far from clean. I am thinking of Richard Pryor and Bill Hicks. There is a fine line between edgy comedy and tasteless comedy. The subject of prison rape is not close to that fine line- it is just not funny.

This issue brings back several random thoughts. As a comic, I have performed for the Retired FBI Special Agents National Convention and for the DC Rape Crisis Event. Prior to each I got bizarre phone calls from the persons who hired me. Before the FBI gig, I was reminded not to do any J. Edgar Hoover jokes. I assured the gentleman who hired me that there were no J. Edgar in a dress jokes in my set for the evening. Even stranger, before the DC Rape Crisis Event, I was reminded not to do any jokes about rape. I told the woman that there was nothing funny about rape and I do not have any jokes about rape. I thought it was strange that I was asked, but I guess after reading about this movie, there are producers in Hollywood who have now "greenlighted" such a project with jokes about prison rape and call it twisted and dark!

As a grade schooler, Mike Morrison and I would often ask Wakefield High School janitor David Vasquez to let us into the gym to play basketball when the weather was bad outside. Vasquez (as he was known) would say very little and mumble what he did say, but he was nice enough to always let us in. It was well known that Vasquez was slow mentally. Fast forward about a decade and a woman is murdered in the house she purchased from the Morrisons. A police officer sees Vasquez walking by. He badgers him and badgers him in a police interview room. He screams at Vasquez that he knows he killed the woman. Confused, Vasquez says it must have happened in a dream. He asks Vasquez how he killed her. He is wrong several times and the detective yells, "No, you strangled her with the blinds." Vasquez begins telling this version of the story. At trial, the jury never hears of how the entire "confession" occured, just that Vasquez admitted he strangled this woman with the blinds. He is convicted of murder and spends many years behind bars. He is raped and abused in prison. Eventually, the real killer is found and Vasquez is released. (Note: false confessions and the push to require all interrogations to be recorded are fascinating topics. But that, Little Adam, is another blog post!)

There is no accounting for taste, but public opinion can make a difference. Just look at O.J. Simpson's new book. So please don't go to see "Let's Go to Prison." Go see something less offensive- like Borat! Or maybe you can catch Michael "Kramer" Richards at a comedy club near you. I am sure he has a lot of open dates on his calendar these days.

to read entire article, click here

Ex-Prosecutor Bob Battle Reveals: 8 Secrets Your Prosecutor Doesn't Want You To Know About Your Virginia DUI

2006-11-24T19:18:00.000-08:00

1. If everyone insists on their constitutional right to go to trial, the prosecutor will be in court all day.

2. In most cases, the mandatory minimum sentences for DUI are so harsh that a defendant in a DUI trial risks absolutely nothing by going to trial. Many clients ask me if a judge will penalize them with a harsher sentence if they assert their right to trial. The Virginia legislature has now raised the minimum sentence for all DUI cases to such a high level, that, if you decide to go to trial on your case, in most instances, as a practical matter, you are going to get the same sentence as the person who pleads guilty.

3. The prosecutor doesn’t want to be there. No one takes a job at a prosecutor’s office because they fantasized about prosecuting in traffic court! In most jurisdictions, the prosecutors would rather be prosecuting their felony cases than handling a traffic court docket. Furthermore, the prosecutor has 20 to 30 other cases with attorneys on the traffic court docket that they must handle that day. When I was a prosecutor in Fairfax County, there would be at least five traffic courts with five different prosecutors going on every day. The first prosecutor to arrive would get to pick which courtroom they would be in. The only consideration on every prosecutor’s mind was to pick the judge that was known to be the fastest, so they could be through with court as soon as possible.

4. The prosecutor is unprepared. In the vast majority of jurisdictions in Virginia, prosecutors do not look into traffic cases ahead of time. Most of my clients are shocked when I tell them that it is impossible for me to contact a prosecutor with knowledge about their case prior to the court date to discuss their case, because the prosecutors do not look into the cases ahead of time. In most jurisdictions, if someone shows up without an attorney, the prosecutor does not get involved. Thus, it is impossible for someone attempting to represent himself in these jurisdictions to discuss a possible plea bargain with the prosecutor, because the prosecutor will not speak to them. In some jurisdictions, such as Virginia Beach, there is not even a prosecutor for any traffic case, even a DUI with an attorney!

5. The police officer is unprepared.Your case is just one of an entire docket full of cases that the officer has on that date. It is not unusual for an officer to have 5 to 10 DUI cases on one date in addition to dozens of other traffic tickets. The officer often has little if any recollection of your arrest. That becomes apparent time and time again in court when I object to an officer testifying by reading from his notes and, after my objection is sustained by the judge, the officer clearly has no independent recollection of the arrest.

6. Most prosecutors know very little about the science (or lack thereof) behind field sobriety testing. At no time during law school does the professor ever say, “Today we’re going to learn about standardized field sobriety testing.” A thorough knowledge of these tests would actually hurt their cases and prevent them from making arguments that I routinely hear prosecutors make to judges while trying to argue that the results of these tests should be given more weight than they were ever intended to. For example, the three standardized field sobriety tests were only used to predict a BAC of .10 or above. Since the legal limit is now .08, there is almost no weight that a judge could give to these tests on someone with a BAC of .08 or .09.

7. The police officer did not follow proper procedures for the field sobriety tests. If a police officer receives proper training about field sobriety tests, they will be told the proper standards and procedures according to the National Highway Traffic Safety Administration (“NHTSA”). However, for example, on the “follow the pen with your eyes” test (the horizontal gaze nystagmus test, or HGN), the manual says that if the suspect moves his head during the test, the officer should use his flashlight or his free hand as a chin rest of the suspect. In 22 years of practicing law, I have never seen an officer use anything as a chin rest for a suspect, even though in the vast majority of those cases the officer testifies that the suspect was swaying and unsteady on his feet! The manual also states that the walk-and-turn and one-leg stand test should not be done if the suspect is over 50 pounds overweight or has physical impairments that could affect his balance. The manual also states that the walk-and-turn test “requires a line that the suspect can see.” This is rarely done.

8. The breath testing equipment is inaccurate. The breath testing machine is just that- a machine. The machine uses an assumption to calculate the amount of alcohol in a person's blood based on the amount of alcohol that is released into a person's breath. The amount can vary from between 1100 and 3200. However, the machine uses a standard ratio of 2200, the average between the two. If you exchange alcohol at the 1100 rate, the machine gives a reading twice as high as it should. On the other hand, if you exchange at the 3200 rate, it gives a reading half as high as it should. In any event, the principle is flawed and readings can vary up to 50% from the actual breath content. The manufacturers of the Intoxilyzer 5000 have flat out refused to reveal their source codes to defense attorneys. The source codes are basically the mathematical formula that the machine uses to convert a small sample of breath to a blood alcohol content number. Courts in Florida have already ruled that this refusal is a basis to dismiss DUI prosecutions. Virginia appeals courts have yet to rule on this issue.