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Arguments in a Virginia DWI Appeal

A person has a variety of arguments to bring up if they believe their DWI or DUI trial has been handled inappropriately. There are issues of blood or breath test results that arise quite often and it is good to have a Virginia attorney experienced in DWI appeals to parse the trial record and identify when there is an indication that maybe the Commonwealth did not show in trial that the equipment was properly used or calibrated. Additionally, there are issues about independent testing of blood samples.

Sometimes police officers will identify cues that are not scientifically sound indicators of driving while intoxicated. If this is the case, it could impact whether probable cause actually existed under the law, and this can be an appealable issue for the Court of Appeals to consider.

Appealing a Virginia Breath or Blood Test

DWI or DUI appeals often relate to the implied consent statute and whether the state of Virginia had the right under the constitution to compel that sample. There are also technical issues related to the requirement placed on law enforcement agencies to ensure that their breath alcohol testing equipment is in working order and it is properly calibrated.

Furthermore, there can be an appealable issue that arises if an officer conducts the tests in a manner that is not consistent with the prescribed procedure for doing so.

An individual in Virginia who gives a blood sample has a right to have that tested by an agency that is independent of the Commonwealth. If the defendant is denied that right then that can lead to an appealable issue.

Challenging Overall Validity of Traffic Stop

In order for a traffic stop to be valid, there has to either be “probable cause” that the driver has committed an offense, or “reasonable suspicion” of specific wrongdoing. Probable cause would exist, for example, if a police officer identifies the defendant speeding. There is then probable cause to believe that the defendant has violated this traffic law and that stop can take place.

Reasonable suspicion arises from actions or behaviors which are not necessarily indicative that the specific crime has taken place, but which can give rise to a reasonable, articulable belief by the officer that illegal activity is taking place.

How Police Officers Conducted Traffic Stops

Many officers in Virginia who specialize in DWI investigations are trained to look for certain factors that have supposedly been found scientifically to be indicators of driving while intoxicated. They may be able to stop a driver for actions that are not illegal and subject to prosecution. Still, they cannot stop drivers for just anything. It is up to the attorney to try and grill their arresting officer on their training and on their rationale of their stop.

If there was not a good enough reason and the judge still allows the evidence in, this could create an appealable issue related to an unreasonable stop and unreasonable search or seizure in violation of the Fourth Amendment.

Cues That Impact How Police Officers Conduct Searches

The reasons for this are not especially different from the reasons the validity of the stop could be challenged. These just arise at a different stage in the interaction between driver and officer. The officers are generally trained on cues to look for in Field Sobriety Tests which supposedly indicate intoxication. If they identify those cues if and when the driver chooses to take Field Sobriety Tests, then it can give probable cause to support an arrest for DWI.

Additionally, an arrest could potentially be invalid if an officer, for example, indicated to a defendant that the Field Sobriety Tests or Preliminary Breath Tests were mandatory. These are both things that any person who is stopped has the right to refuse to do. If an officer gave an indication that these types of things were mandatory then it could be viewed as compelled self-incrimination and be subject for an appeal.

Possible Outcomes of Successful Challenge to Arrest

If an appeals court finds that a defendant was improperly arrested for DWI, very often they will strike evidence that resulted from that arrest. This is a concept known as the “exclusionary rule,” and if the evidence is excluded, sometimes it may result in direct reversal with the appeals court finding that there is insufficient evidence for a conviction and reversing.

More likely, it would be remanded back to the trial court with instructions to re-initiate the proceedings with the evidence not to be considered. A lot of the time this could result in the case being dismissed or could be made to a reduced charge.

Appeals Issues Related to Blood or Breath Tests

Some of the more common issues that can arise relate to whether there was consent for breath or blood test, which usually will be achieved through the implied consent statute.

Also there are issues related to proper use and calibration of equipment, the training of the officers who use that equipment or the custody of evidence – especially in blood sample cases – to ensure that the evidence has been properly kept and not tampered with according to the statutory requirements. All these issues can be brought up on appeal if they were objected to at trial, and can sometimes provide a basis for successful appeal.

Issues With Virginia Sobriety Checkpoints

Sobriety checkpoints are an exception to the constitutional requirement that there be reasonable suspicion to stop a person and investigate. States have determined, and the United States Supreme Court has endorsed the theory, that sobriety checkpoints are a limited intrusion that does not violate the Fourth Amendment because it is aimed only at determining whether or not a driver is intoxicated.

In order for a sobriety checkpoint to be constitutionally valid there are certain factors that must be present. The checkpoint must be planned and approved in advance through constitutionally valid means. The officers have to follow that plan. Drivers selected for the checkpoint have to be selected according to the plan not just at random.

If the plan was not publicly filed or the plan does not meet the requirements that are present under the law or if the officer cannot establish that he followed the plan then these are certainly issues that are subject to appeal in the Court of Appeals.

It would take an experienced DWI appeals attorney in Virginia to identify where there may be areas of the plan that do not meet proper requirements or there may be testimony that indicates that an officer did not follow the plan.

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