Although it may seem like the end of the road when convicted of a DWI, you may still have the right to appeal your case under certain circumstances. The following is information on the elements of a DWI appeals and what issues an experienced Virginia appeals lawyer may be able to use to get you another chance in court.
In Virginia there are two elements, but there may also be affirmative defenses to the charge that are in play. The elements at issue are whether the defendant was driving or operating a motor vehicle and whether, while doing so, the defendant was either under the influence of alcohol or drugs or had blood alcohol content of .08, which is what is known as a “per se” offense.
If the defendant has an affirmative defense, such as the fact that his or her intoxication was not self-induced, this will be considered by the court and could result in the defendant not being liable. However, in order to be convicted, the commonwealth only has to prove that the defendant was driving or operating a motor vehicle and was under the influence of alcohol or drugs or had an elevated BAC.
DWI cases are interesting because, despite how narrow the statute is and how simple the offense is, there are a ton of appealable issues that can arise touching on a lot of different areas of law.
The very first issue that comes up often is the validity of the stop. Did the officer who stopped the person while driving have a reason to do so? Sometimes this may be because the driver violated a traffic law or something along those lines which would give probable cause to stop, and sometimes the police officer will follow cues that they are trained on related to driving behaviors that have supposedly been found through scientific studies to be indicative of intoxicated driving.
The key is the police can just stop a driver for anything and so at trial there will often be a chance to grill the officer on his reasons for stopping the vehicle. If the reasons are invalid then perhaps that could give rise to an appeal if the trial court refuses to grant a motion to strike evidence based on invalid stop.
Dovetailing off of this is the question of the validity of the arrest for DWI. A person can be stopped for only reasonable suspicion of wrongdoing. However, in order to be arrested the officer has to have probable cause that the person has committed the offense. As with the stops the officers are often trained on specific cues that are purported to indicate intoxication.
The most commonly seen indicators leading to arrest arise from Field Sobriety Tests and Preliminary Breath Tests given at the scene. Neither of these are admissible as evidence against the defendant in a DWI case but they can be considered as evidence of probable cause. However, if the Field Sobriety Tests are not performed according to the standards to which the officers are directed to conduct them then this can render the entire arrest invalid and can create an appealable issue as well.
Additionally the admissibility of evidence of intoxication often creates an appealable issue. In most cases in Virginia the evidence of intoxication comes from either a breath test or blood test to determine the blood alcohol content of the defendant. Once a person is arrested for DWI, he or she is required by law to provide either a breath or blood sample, although there are some very narrow exceptions to this requirement in rare cases.
The reason that the Commonwealth can compel defendants to take these tests is there is what is called “implied consent.” As a condition of a person’s ability to drive in Virginia, a driver is implied to have consented by law to taking these tests if they are arrested for DWI.
If there is an issue with implied consent – some of these could include maybe the defendant wasn’t driving on a highway of the Commonwealth. or maybe the defendant wasn’t operating a motor vehicle under the definitions in the statute, or maybe the arrest of the defendant was invalid by law – the implied consent provision may not be applicable. If implied consent doesn’t apply then a person is not obligated to take the breathalyzer test, and if that evidence is introduced despite the fact that the defendant may refuse then that could create an appealable issue if the implied consent statute is not followed.
Implied consent is essentially a legal fiction in the Virginia statute which says that as a condition of being licensed to drive in the Commonwealth you have consented to giving a breath sample or blood sample as evidence to be used against you if you are validly arrested for a DWI while operating a motor vehicle on the highways of the Commonwealth.
There is a lot to unpack with this. Some of these things aren’t as straightforward as they would seem. The definition of a “highway,” for example, can be in contention. As can the definition of “operating” and the definition of a “motor vehicle”. All of these things come into play and if any of those conditions aren’t met the implied consent statute is not met and the defendant is not compelled to provide evidence against himself or herself.
Implied consent is one of the most important things for an Virginia DWI appellate attorney to look at in determining whether an appeal is going to be successful. Since Virginia has a “per se” DWI statute, where somebody whose blood alcohol content is shown to be above .08 is determined to violate the statute regardless of their intoxication, then it is essential, if there is a blood sample or breath sample that shows that, for evidence of that sample to be stricken in order for an appeal to be successful. The implied consent statute is one of the most common ways for that to be done.
Finally, another issue that often comes up in DWI appeals is the applicability of prior convictions. With DWIs in Virginia there are escalating punishments with subsequent offenses. In order for an offense to be charged as a subsequent offense and for someone to be convicted, there has to be proof that that defendant has prior offenses. For example, sometimes other state’s DWI laws don’t comply with the terms of Virginia ad so those laws wouldn’t be seen as substantially similar to constitute a prior offense.
It is important to find a Virginia appellate lawyer who has experience with DWI issues, because despite the fact that these are misdemeanor cases – at least with first offenses – they are very complex. There are a lot of moving parts in a DWI case. We have gone over some of them. There is also just the ability to evaluate the evidence and know what it says.
For example, an experienced DWI attorney in Virginia will be able to identify issues on reports on calibration of the breathalyzer machine that some attorneys might not be familiar with and very technical issues like that often arise and can give rise to appeals based on issues such as the chain of custody of the evidence.
Because DWIs are misdemeanors there are certainly some attorneys who take them and treat them much like other misdemeanors where the goal is to move the case through the court as quickly as possible and try to get the defendant as favorable a resolution as they can.
But people sometimes build entire practices on trying these cases. That is how complicated they can sometimes be. The amount of experience somebody has with these matters will definitely be a mark in their favor if somebody is looking for an attorney to represent them in an appeal on a very technical issue.
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