The following is information on the various constitutional protections that you have in Virginia and when they might come into play in a DUI case. If you believe your rights may have been violated or would like to learn more, call and schedule a consultation with a Fairfax DUI lawyer today.
The Fourth Amendment is always the most common constitutional issue in any of the DUI cases, regardless of county. The Fourth Amendment guarantees that the government cannot perform any unreasonable searches or seizures of a vehicle or person. Seizure typically refers to seizing a person either by arresting them or detaining them.
In a DUI case, the very first thing that an attorney will look into when building a defense is why the police have detained the defendant. Unless an officer can articulate a reason why they have stopped someone that will pass muster with the judge, that will be deemed a violation of the person’s fourth amendment rights and under those circumstances the case is going to get thrown out.
The next level at which the fourth amendment matters is at the point of arrest. The court has to be convinced that there was sufficient evidence for arrest to take place. Sometimes, we refer to this as probable cause. If there’s not sufficient evidence for arrest, this will be deemed an illegal seizure of a person and any evidence that is collected after that illegal seizure, including the breath test, is going to be suppressed, that is, kept out of evidence.
In order for any search to be valid, it must be supported by probable cause. There has to be some reliable facts that will lead a reasonable police officer to believe that a crime has taken place. The most common kind of search of a vehicle, in every case, is when an officer claims that they’ve smelled marijuana. This provides a pretext to search pretty much any vehicle that they stop if they say that they smell it.
Second, there has to be some kind of “exigency,” if there is not a warrant obtained. The default is that a warrant should be obtained for every kind of search but this rarely occurs in practice since courts have broadened the ability of police to search without one.
There are many other ways police can validate a search. These include a protected sweep, which is a search that allows the police to search a vehicle for weapons or other contraband; there’s also a search which is pursuant to a lawful arrest, which allows police to search for weapons, contraband or anything else in the vicinity where the driver was sitting. Finally, there is an exception carved out for what’s called an inventory search. If a person is arrested for DUI or some other criminal charge and there’s no one who can drive the vehicle away, the police will search the vehicle, taking inventory of its content so that the defendant won’t find something stolen. Of course, anything that turns up in that search is potentially incriminating.
Another constitutional issue that we see are issues that arise under the Fifth Amendment. The Fifth Amendment guarantees that people cannot be compelled to testify against themselves or offer evidence against themselves.
This comes up in the context of answering questions. Many people are unaware that they can stand on their right to remain silent, or stand on their right to not cooperate with tests. Field sobriety tests, which are administered by the police, include questions which are asked at the side of the road, and all of these are calculated to incriminate the defendant. They are solely for the purpose of gathering evidence. Individuals should understand that they have an absolute right not to cooperate with this beyond the Virginia requirement under Virginia Law to identify yourself and to provide an ID if you have one.
Constitutional issues are the province of the United States Supreme Court and the federal courts to interpret. If there is a controlling authority on a particular constitutional issue that has been enunciated by either the United States Supreme Court or the Court of Appeals for the 4th Circuit, which will be the precedent used. However, in many cases the United States Supreme Court or the Fourth Circuit Court of Appeals will not have spoken on a particular issue. Frequently, the Virginia Supreme Court or the Virginia Court of Appeals or even the Circuit Court judges or general district court judges are then left to interpret federal case law themselves, if there’s nothing that controls their position in a particular case.
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