Like all of us, police make mistakes, and these mistakes are especially common to DUI investigations in Virginia. The police have already made up their minds at first glance that you are driving under the influence (DUI) of alcohol or drugs. They are anxious to make an arrest. And through their assumptions and angst, mistakes are made. Here, we provide the most common mistakes Virginia police make during a DUI investigation.
Mistake No. 1: Insufficient Reasonable Suspicion
To pull someone over and investigate a DUI requires a reasonable suspicion that you are driving under the influence. If you have done nothing wrong, then a case can be dismissed on the lack of reasonable suspicion.
Too often, police officers sit late at night outside bars, waiting for you to come outside and drive away. Soon enough you hear the sirens wail, but you did nothing wrong – you weren't speeding, you were staying within the lines of your lane, etc. Any evidence, including your blood alcohol content (BAC) results, that flow from that unlawful traffic stop can be excluded from trial.
Possessing a feeling or hunch or watching you leave a bar is not enough reason to pull you over but is a common mistake made by police.
Mistake No. 2: Failure to Indicate Your BAC at the Time of Driving
When your BAC is still rising, any breath test taken during this time may produce inaccurate results because it may not be indicative of what your BAC was when you were actually operating the vehicle. A drinking pattern helps support what your accurate BAC is. To establish a drinking pattern, evidence is needed, often in the form of receipts and eye witness statements alongside your own statement.
Failure to obtain this information could mean failure to establish a drinking pattern. Police are often too focused on the results of a preliminary breath test and less focused on eyewitness testimony. An experienced DUI attorney will use this mistake as a means to challenge the results of a breath test.
Mistake No. 3: Improper Administration of Field Sobriety Tests
Field sobriety tests (FST) are known to be unscientific and very subjective. That alone is reason why you are not required by law to submit to an FST. That said, these tests are administered on a regular basis. But Virginia police officers must be trained to administer these tests accurately and in accordance with regulations. Failure to administer the test properly can result in an unreliable result to an already-unreliable test.
Mistake No. 4: Failure to Observe for 20 Minutes
In Virginia, when a breath test is taken, alcohol from the mouth or stomach must not interfere with the test or else the test can be deemed inaccurate. To help ensure there's no interference, there is a 20-minute observation period. During this time, the breath technician must make sure you do not eat, drink, burp, regurgitate, or vomit. Many times, the police are in a hurry or they simply don't pay attention, and the 20-minute observation rule is not abided by. An experienced DUI attorney may be able to get the results thrown out.
Mistake No. 5: Insufficient Recording of Important Details
The Commonwealth's attorney (prosecutor) relies on the details the police provide in their reports to establish the facts of the case, among other things. When details are lacking, the ability of the prosecutor to build a solid case is weakened. A good example of this is one that has been mentioned already, and this is the proof you were illegally intoxicated at the time of driving.
If you just had a drink and got into your vehicle, your BAC will be lower, but as time goes on, the BAC rises. Timing will mean everything because a "rising blood alcohol defense" is a valid defense. If the police fail to provide the timing of the tests, the timing of the stop, the time of the arrest, among other details, proving your BAC at the time you were behind the wheel becomes more difficult and the BAC results become more unreliable.
The Key Takeaway
There are many mistakes an officer can make that can turn a DUI case in your favor. Having an experienced DUI attorney in Charlottesville who can identify and use these mistakes to your benefit will be key to a dismissal or an acquittal. Contact Bryan J. Jones, respected DUI attorney in Virginia, to discuss the facts and circumstances of your DUI/DWI case today.