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Constitutional Violations and DUI Arrests in Virginia

Feb. 9, 2021

Media has made it clear today that your constitutional rights can be violated during a traffic stop. These violations matter, especially because the police in Charlottesville and Virginia often use traffic stops to commence DUI investigations that lead to arrests. It is important to remember: the police are not entitled to violate your rights; the police are not above the law.

The police must follow specific Virginia law and national protocol, and if they do not, they may have violated your constitutional rights. If a right was violated, any evidence flowing from that violation can be suppressed. Some evidence, if excluded, may mean the dismissal of your case at best and in the least, it can make challenging the case a little bit easier.

Bryan J. Jones, experienced DUI attorney in Virginia, will thoroughly review your case and identify whether or not a constitutional violation was made. If your rights were violated, he will take strategic steps to have evidence obtained from the violation suppressed or excluded from your case.

Below is a brief discussion of the constitutional violations that can materialize during a traffic stop and how they can be challenged.

Constitutional Violations and A DUI Arrest in Virginia

The U.S. Constitution guarantees basic rights. Also known as the Bill of Rights, these rights extend to all persons within the United States, including citizens and non-citizens. They are rights that apply to our everyday lives. As such, these rights matter and violations of them also matter.

There are certain Constitutional rights the police may violate during a traffic stop. These violations are associated with the fourth, fifth, and sixth Amendments.

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.

Fifth Amendment to The U.S. Constitution

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.


In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The violation of these rights manifests under certain conditions, like:

  • an unlawful traffic stop stemming from the absence of reasonable suspicion;

  • an unlawful search and seizure of a person or his or her property;

  • a failure to provide Miranda warnings; and

  • an unlawful arrest stemming from the absence of probable cause.

Unlawful Traffic Stop/lack of Reasonable Suspicion

In the 1968 case Terry v. Ohio, the U.S. Supreme Court found that the Fourth Amendment requires a police officer to have reasonable suspicion that a person committed, is committing, or is about to commit a crime. Reasonable suspicion must be based on "specific and articulable facts" taken together with rational inferences from those same facts.

An Example of An Unlawful Traffic Stop

You exit the Tin Whistle on East Market Street and get into your vehicle. You start to drive – intending to go home – and are minding your own business and doing nothing wrong – legally or otherwise – when you see the sirens flashing behind you. You pull over.

The officer asks where you are coming from, and you reply you were at dinner with friends. The officer then assumes you had a drink during dinner and begins a DUI investigation. You admit to a drink but assure the officer you only had one. The preliminary breath test confirms you are under the legal limit but are still arrested anyway because the officer believes you showed signs of impairment.

In this scenario, the police officer may have been staking out the pub and suspected you were illegally intoxicated for the mere reason you departed the pub. That reason, however, is not reasonable. This traffic stop would have been unlawful.

Challenging an Unlawful Traffic Stop

If you believe you have done nothing wrong to be pulled over, be sure to ask the officer why you were pulled over. If there is no reason, then politely ask the officer if you are free to go, and if not, why.

Be sure to provide the details of your conversation between you and the police officer with your DUI attorney.

When your attorney identifies a constitutional violation like an unreasonable traffic stop, he will take the steps to address it. Usually, the challenge is made via a clear and detailed motion to suppress. Motions to suppress are used to bring the violation to the court's attention and to have the evidence flowing from the violation excluded as evidence.

Unlawful Search and Seizure

An unlawful search and seizure is also a violation of the Fourth Amendment. An unlawful search and seizure occurs when the police infringes on your expectation of privacy and personal belongings.

In a traffic stop situation, this would mean the officer searched your vehicle without your consent and without a lawfully obtained warrant or another lawful reason. There is one exception, and that is: the seized item was in plain sight. So, if you had an open alcohol bottle on the passenger seat, the police could seize it as evidence.

Example of An Unreasonable Search and Seizure

You are pulled over for failing to signal a right turn. The police ask to inspect your vehicle and you object. The police, however, do it anyway, find a bag of marijuana in the glove compartment, and seize it – that search and seizure is unreasonable and unlawful. It should be important to note here, however, that vehicles are treated differently than other property, like your home.

Another important example is an unlawful blood draw. The police cannot take a blood sample for alcohol or drug testing without your consent. There are a few exceptions, including cases where the suspect is unconscious and unable to consent or where a warrant was lawfully obtained and administered.

Challenging an Unreasonable Search and Seizure

If you did nothing wrong but the traffic violation for which you were pulled over, you have an expectation of privacy, and as such, you should advise the officer you know your rights and do not consent to a search.

If you are arrested for a DUI, be sure to advise your attorney of any violations to your right to privacy. Your attorney will be able to confirm or not if the act was a violation of your Constitutional rights. If so, then it can be challenged through a motion to suppress. As above-mentioned, this motion moves the court to exclude evidence when obtained by an unlawful search and seizure.

Failure to Provide Miranda Warning

You have the right not to incriminate yourself. You also have the right to an attorney. These rights are part of the Miranda warning the police are directed to provide you upon an arrest.

When the officer fails to provide you with the Miranda warning, anything you say after your arrest and prior to a Miranda warning may be excluded as evidence. A motion to suppress evidence would also be employed in this type of scenario.

Remember to always and politely advise the police you will not answer their questions but do want to speak to an attorney. Miranda only applies once you've been arrested or the functional equivalent of an arrest.

Unlawful Arrest/lack of Probable Cause

The police must have probable cause to arrest you – this standard was established in Brinegar v. United States in 1949. Probable cause is a higher standard than reasonable suspicion, but the circumstances identifying its existence are murky. Generally, probable cause is based on the total circumstances of the situation that help determine whether a person committed a crime, in this case: driving under the influence of a chemical substance.

An experienced attorney can identify when probable cause existed or if it didn't. If the attorney believes it did not exist and your arrest was unlawful, he will draft a comprehensive motion to the court outlining the reasons. Depending on the facts and the case, a motion to dismiss may be more appropriate than a motion to suppress.

For example, if your BAC was below the legal limit but you were arrested anyway because you failed a field sobriety test, your attorney may be able to show the failure was due to a health-related issue and not alcohol or drugs. If true, the case could be dismissed.

Contact an Experienced, Trusted DUI Defense Attorney in Virginia

Bryan J. Jones is an experienced and trusted DUI / DWI attorney based in Charlottesville, Virginia. He understands the law and has represented many clients whose rights were violated by the police. Contact Bryan J. Jones today to learn more about his approach to DUI defense in Virginia and how he can help you and your specific DUI case.