Traffic Defense Archives - BoykoNapier, PLLC

Virginia DUI: Refusal and the Birchfield Opinion

October 22, 2016 By Marc Leave a Comment

empty road — Courtesy of SO JORD via flickr.com
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In Virginia, when a person is lawfully arrested on suspicion of driving under the influence (DUI/DWI), statutory language says the person has consented to submit to a breath or blood test to determine the alcohol and/or drug content of their blood. See Implied Consent – Va. Code 18.2-268.2. Both tests are somewhat self-explanatory: a breath test involves the suspect blowing into a “breathalyzer” machine which calculates the blood alcohol content (BAC); a blood test involves an authorized medical professional drawing blood from the suspect and submitting it to the Virginia Department of Forensics, where it is analyzed for BAC or drug content.

If a person unreasonably refuses to submit to the test, they can be charged with a separate offense commonly called a “Refusal”. See Refusal – Va. Code 18.2-268.3. Virginia’s Refusal statute was enacted to deter suspects from deciding not to comply with the tests. A first offense of refusing to submit to the test is a civil penalty, and a one-year license suspension is imposed if convicted; a second offense is a criminal charge.

This past June, the United States Supreme Court decided Birchfield v. North Dakota. In our view, the Court correctly determined that warrantless blood draws incident to DUI arrests are unconstitutional. The Court overturned a defendant’s criminal conviction for refusing to submit to a warrantless blood draw. In the same context, the Court found that warrantless breath tests are constitutional as the privacy implications are much lower than with the far more invasive blood draw.

So, how does Birchfield impact Virginia’s Refusal law? That is a difficult question to answer. Portions of the statute, standing alone, would theoretically be constitutional under Birchfield (i.e. a criminal penalty for refusing to submit to a breath test would be valid, as would a civil penalty for a first offense of refusing to submit to a warrantless blood test). However, the implementation of at least one portion would theoretically be unconstitutional (a criminal penalty for a second offense of refusing to submit to a warrantless blood test). Does that fact taint the entire statute itself?

Unfortunately, it may be a while before Virginia’s appellate courts have the opportunity to interpret Birchfield. Perhaps we will encounter a legislative amendment to the statute before that interpretation arrives.

If you have been charged with a DUI or a Refusal in Virginia, it is important to reach out to an experienced criminal defense attorney. The Virginia defense attorneys at BoykoNapier represent clients in all types of criminal and traffic offenses throughout the Richmond area, including Henrico, Chesterfield, Hanover and the surrounding localities. To speak with a criminal lawyer about your case, call BoykoNapier at (804) 658-3418, or you can contact us via email.

Driving on a Suspended License – Virginia’s Vicious Cycle

May 12, 2015 By Marc Leave a Comment

ocean highway — Courtesy of Larry W. Lo via flickr.com
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In Virginia, your driver’s license can be suspended or revoked for a number of reasons, the most common among them: failing to pay court fines and court costs, failing to pay child support, a conviction for a drug offense (i.e. possession of marijuana) and a conviction for reckless driving or driving under the influence (“DUI”).

The problem with suspending or revoking a person’s driver’s license is most people need to drive to get to work; if they can’t get to work, they can’t pay their court fines or court costs (or their other monthly bills for that matter). So what happens? People decide to risk it, and drive. If they get pulled over before they get their license reinstated, they will likely get charged with driving on a suspended license. The punishment for driving on a suspended license is the root of the vicious cycle.

Driving on a suspended license is a Class 1 Misdemeanor offense.

See Virginia Code Section 46.2-301.
A third or subsequent conviction requires at least 10 days in jail, and many Central Virginia Judges will order active jail time on a second offense.
A conviction also yields court fines and court costs, and a license suspension period (typically 90 days) that a Judge is required to impose for each conviction that tacks on to the end of all previous suspensions.

As you can see, the more convictions one receives the more difficult it becomes to crawl out of the hole – mounting court fines and license suspensions leave many folks without an easy path to get their license reinstated. On top of that, sizable jail sentences can cause people to lose their jobs which creates further financial turmoil.

The bottom line is that a driving on suspended charge is something that should be taken very seriously. A good criminal defense attorney can be a vital asset and can assist you throughout the process in order to help you achieve a positive outcome.

The Virginia criminal defense attorneys at BoykoNapier are experienced in all manner of traffic and criminal offenses. If you have a question regarding your driving on suspended case, call the lawyers at BoykoNapier at (804) 658-3418, or contact them via email.

Reckless Driving in Virginia: A Few Things To Know

July 30, 2014 By Marc Leave a Comment

Virginia Highway — Courtesy of Nicholas A. Tonelli via flickr.com
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In Virginia, Reckless driving is a very common charge that often comes as a surprise to most of our clients. In light of the frequency of these charges, as well as the seriousness of the offense, take a minute to review some important information about Reckless Driving.

Reckless Driving is broadly defined by the Virginia Code

The Virginia Code defines reckless driving as “any person who drives a vehicle on any highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person”. Va. Code 46.2-852. As you can see, the language is broad enough to capture a wide variety of driving behaviors.

In addition to the broad “general” definition, there are additional statutes which specify certain driving behaviors as being reckless driving. For example, driving a vehicle with faulty brakes, passing a stopped school bus and failure to properly signal a turn are all traffic infractions that are declared reckless driving by statute.
Perhaps the most common situations (in the Richmond area at least) where Virginians are charged with reckless driving are in situations involving a motor vehicle accident and situations involving high rates of speed.

Don’t Go Over 80 mph!

Everyone should be aware that you may be charged with Reckless Driving by Speed if you are going over 80 mph, or if you are going more than 20 mph above the posted speed limit (i.e. 46 mph in a 25 mph zone). Even if the speed limit is 70 mph, if you are going 81 mph or more you can be charged with Reckless Driving.

Reckless Driving is a Class 1 Misdemeanor in Virginia

A Class 1 misdemeanor is the most serious misdemeanor offense in Virginia; a conviction carries up to 12 months in jail and up to a $2,500.00 fine. Here are the Misdemeanor punishment ranges in Virginia. To better understand the seriousness of a Class 1, consider that the following criminal offenses are also typically Class 1 misdemeanors: Assault and Battery, Petit Larceny, Possession of Marijuana, D.U.I. (Driving Under the Influence). Additionally, under certain circumstances your license may be suspended by the Court if you are convicted.

Speak to an Experienced Traffic Defense Lawyer

If you receive a reckless driving charge, it is important that you contact an experienced Virginia Traffic Defense attorney about your case. There are a variety of ways to avoid getting convicted as charged. An experienced attorney can help you understand the issues at hand and the defenses you may have, so that you can improve your chances of achieving a good outcome in your case.

The attorneys at BoykoNapier are experienced in all types of Traffic and Criminal matters in Virginia. Our attorneys handle cases throughout Central Virginia, including Richmond, Chesterfield, Henrico, Hanover and the surrounding communities. Call us to schedule a consultation at (804) 658-3418, or contact us via email.

Call: 804-658-3418