SPEAKER_00 0:00

Welcome to Meet the Prosecution with your host John Thompson of From Fox Criminal Defense and D W. This episode of the podcast is a re recording of a video from our YouTube channel.com. For more information, you can contact us at 703-383-1100. Or send us an email at info at meetheprosecution.com. Or give us a text at 571-406-7268. Nothing on any of our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or for individuals who have paid for a consultation. And now for your host, John Katz.

SPEAKER_01 0:47

Hello everybody, I'm John Katz. I'm a DWI defense lawyer in Fairfax and a criminal defense lawyer here as well.

SPEAKER_02 0:54

What's the difference between DWI and DUI?

SPEAKER_01 0:58

Under the Virginia law, there's really no difference, but generally when we think of DWI, we're thinking of driving with a blood alcohol level of 0.08 or higher. Whereas when we're thinking of DUI, perhaps we're thinking about driving under the influence of drugs, or where there's a refusal to take a breath test, or where there's no breath test at all. Well, we can talk about blood tests too. So we're talking about driving with a 0.08 blood alcohol level is measured by a breath test or blood test for DWI and DUI being everything else. For instance, the definition under the case law in Virginia of driving while intoxicated or while impaired, same thing under the law, if there's not a blood alcohol reading, is having consumed enough alcohol to noticeably affect one's appearance andor behavior. That's really a watered-down definition. That's not drunk, that's not buzzed. That's crazy. But that's the reason why I recommend to people to overcover risk. Taverns won't like this, what I'm about to say. Alcoholic beverage sellers won't like what I have to say. But it's best not to get behind the wheel within 24 hours of drinking because that's going to help protect you against a DWI charge.

SPEAKER_02 2:12

Should you do the field test and which field tests are administered and why?

SPEAKER_01 2:17

No. Don't do the field test just like you need to assert your right to remain silent. You have the right to refuse to take the field test. Yes, Virginia law says that if you don't take the field sobriety test or submit to them, then the fact finder, whether that's the judge sleeping without a jury or a jury at a jury trial, they can consider that as consciousness of guilt or not. But what does a good lawyer respond with? Well, since the person, everyone's assumed to know the law, and the case law in Virginia says that it's a voluntary test to do the field sobriety test, and then a person just voluntarily asserted the right not to do the field sobriety test. This is silly. What kind of field sobriety tests are we talking about? We have the so-called standard field sobriety tests that were created out of thin air, I call it, by the NHTSA National Highway Transportation Safety Administration of the U.S. Department of Transportation, which involves standing on one leg for 20 seconds or more and counting, walking the line nine steps out and back and doing all sorts of gobbledygook like making sure your hands are to your side and you're counting aloud and you're walking heel to toe. Who's gonna remember all that stuff, especially with traffic whizzing by? And then you got the real junk sign so the horizontal gaze of nystagmus following the cop's pen or flashlight or other stimulus, and the cops are gonna see if your eyes are going smoothly. Is the cop an ophthalmologist? Is the cop an eye doctor? How the heck does the cop know what nystagmus is? You see the rabbit hole you're going down here to do any field sobriety tests, and then there's more. And then there's the crazier, even junkier science stuff. There's so no science at all. Doing a finger dexterity test, touching your nose back and forth, closing your eyes and holding your head back and seeing if it rocked back and forth, guessing at how much time has passed, guessing at what time it is. This is nuts. And then after all that, when the cop's about to arrest you, the cop is gonna often offer a handheld breath test, a preliminary breath test. And don't blow into that machine. That's crazy. Now, that's different between having to blow into the machine after being arrested, which is a bigger machine called the Intox ECR2 machine in Virginia versus the handheld machine on the street. And unfortunately, some people are gonna get confused between being told by the cops, they're supposed to be told by the cops, that that handheld breath test machine on the street is voluntary, but the machine that you blow into or offered or asked to blow into after being arrested is mandatory. So listen closely to the cop. The less you answer, the more focused you can be on what's going on, and the fewer things you do, like field sobriety tests that you don't have to do, the more you can be focused and ready for your defense.

SPEAKER_02 5:04

What happens if you can't give sufficient breath in the breath analyzer machine?

SPEAKER_01 5:09

Well, it's officially called the Intox ECIR2 machine, that uh is the only machine that can be used for taking a breathalyzer test after being arrested for DWI in Virginia. And uh what a lot of people don't realize is that the preliminary breath test, that handheld breath test that the cops ask arrestees or soon-to-be arrestees to blow into on the street requires a lot less breath volume and a lot less hard breathing than the machine over at the police station or the jail after being arrested. So unfortunately, repeatedly, arresting cops or breath technicians will go ahead and say to the arresting cop, go ahead and charge him or her with refusing to take the breath test just because the person just blew for all they were worth into the machine and couldn't give a sufficient breath sample. The right alternative is for the cop to say, Look, here's how to blow, or the breath technicians say, here's how to blow. Can we try it again? And if they can't get a good enough breath sample to offer blood. But the cops repeatedly don't offer blood. The breath technicians repeatedly don't offer a blood test because it's more expensive in terms of time, often in terms of money and material, and it gives the criminal defense law and DWI defense law a lot more things to attack. Because with a breath test DWI case, if the arresting cop is the same as the breath technician, the prosecutor may not need more than one witness at trial to possibly get a conviction. But with a blood draw, you need at least three witnesses. You need the arresting cop, the blood draw person, as well as the person who analyzed the blood. You might need more people than that under various circumstances. And the blood draw person has to be someone who's approved by statute or approved by the circuit court in writing. For instance, if it's not a registered nurse, phlebotomist, licensed phlebotomist, or a medical doctor who draws the blood, then just because it's called an emergency medical technician or a paramedic, for instance, or another kind of nurse, that doesn't cut it unless that person's name is on a legitimate order from a circuit court judge authorizing them to draw blood. So it's often disingenuous for police to claim that a person refused to take the breath test when the person tried for all they could. Police will often say, well, you know, or the breath technician, I saw a lot of air come out of the side of his mouth. He didn't seem to be trying hard enough to blow into it. How does the cop or breath technician know what the person's pulmonary or lung ability is? How do they know whether the person smokes a hundred packs of cigarettes a day and has trouble blowing out? How do they know whether the person has asthma? Let's get real here. Let's have the cops say to the person if they blow into the machine and can't give a sufficient enough breath to give an alternative, to give blood.

SPEAKER_02 8:14

What mandatory minimum sentencing is rust for your high BCs and repeat DWI convictions?

SPEAKER_01 8:22

Not pretty. So if you're convicted of DWI in Virginia, first offense, blood alcohol level of 0.15 or higher, that's five days mandatory minimum in jail. For a over a 0.20 blood alcohol level, that's 10 days mandatory minimum in jail. For a second offense, DWI with no elevated blood alcohol content within five years of a previous conviction, well, actually it's a second offense. So the way the second offense works is if you commit the if you're convicted of a DWI and the date of offense of your previous conviction was within five years, that is 20 days mandatory minimum in jail. And if the second offense is within 10 years, that's 10 days mandatory minimum. And then we can heap on more time. If your blood alcohol level conviction for the conviction of DWI is a conviction for 0.15 or higher, then you add 10 days mandatory minimum for that. And if the convicted blood alcohol level for a second offense is over 0.20, you add 20 days to that, and it gets worse. Let's say you get convicted for a third offense within five years, that's six months mandatory minimum in jail and up to five years in prison. So now we're talking about a class six felony in Virginia. And if you're convicted of a third offense within 10 years, now that's a mandatory minimum of at least 90 days in jail, up to five years in prison. This is a reason why you want to get a good lawyer for any DWI case.

SPEAKER_02 10:05

What happens to your license if convicted of a DWI or refusal?

SPEAKER_01 10:10

Aye ay, what a mess. So if you get a first-time DWI conviction in Virginia, you lose your license or privilege to drive, depending on whether you're licensed in Virginia already or out of state, for a full 12 months. Fortunately, on July 1st of 2020, a new law took effect that's a little more liberal about how much driving can do if it's only a conviction for a first offense and for not a blood alcohol level conviction for .15 or higher. In that instance where it's not a blood alcohol conviction for 0.15 or higher, and only convicted as a first offense, even if you have 20 previous convictions, as long as the charging document says first offense, if the judge is going to give you restrictive driving privileges, you can opt to go ahead and drive anywhere in the world as long as you have the ignition interlock device in the car that you blow into to get your ignition to start for 12 months. Now, the problem about that, for that 12 months installation of the ignition interlock means you're paying for it about $100 a month. And that also means you got to use the zero tolerance that I recommended before with alcohol and driving, all the more, because even if you have a .01 or.02 blood alcohol content showing there on the machine, you might be called to task and even to court through the probation agent you're dealing with, which is usually the VASAP. So if you get a DWI conviction for the first offense, you're going to lose your driving privileges for a year and you're going to have to see restricted driving privileges. Let's say you're not interested in having the ignition interlock for a full year, because remember, or be on notice, you don't want anyone else to use the same vehicle that has the ignition tralock on it for you, because what if that person drank and drank even more than you would have drunk? So don't go down that path. If you want to do the so-called traditional restricted driving privileges, or if you're you don't qualify for the 12 months of doing the ignition tralock by having had a first offense and not being convicted of a blood alcohol level of 0.15 or higher, then you're limited during the time you can drive, restricted, to just drive during the course of work to and from work, to house of worship, to a doctor, to probation to court for the most part, to the extent that the judge lets you. But let's say you're a real estate agent, let's say you're a door-to-door salesperson, someone who doesn't have a specific schedule that's set by your employer or don't have confirmation from your customer, because if you're a door-to-door salesman, it loses a sense of surprise. If you're going to call up the customer and say, Hey, I'm coming over, will you uh send me an email confirming I'm coming to sell you some vacuum cleaners that you don't want or need anyway, and you're not going to show up at the door if you know I'm coming, you get the picture, okay? So that's the benefit of having that 12-month unrestricted, restricted license for being unrestricted other than blowing into the machine. So what happens if you get convicted of refusal to blow into the breath test machine? Well, refusal under Virginia law means refusing after being arrested for probable cause for DWI, refusing to blow into the breath test machine, or refusing to do a blood test after being told to or asked to by the cop and having that refusal be unreasonable. So if you get a conviction for that, and if that's uh convicted as a first offense, which is a civil offense in Virginia, you're going to lose your driving privileges for one year. But a nice law change that took place on July 1st is whereas before for a refusal conviction, you lost your driving privileges for a full year for a first offense with no restricted driving privileges. Now, after a month, you can apply for restricted driving privileges. Now, what happens though if you get convicted for a second offense for DWI? This is now a mess. If you get convicted of a second offense in Virginia for DWI within ten years of a previous conviction, you're going to get a three-year license suspension and you have to wait four months to be able to get restricted driving privileges. And if you're convicted of a second offense within five years, a shorter period of time, it's a three-year suspension of license, and you have to wait a year to be able to get restricted driving privileges. And if you're convicted of a second offense, which is a crime rather than a civil offense for refusal, that's going to be three years of no driving at all without any restricted driving privileges. It's a mess. The law has to change, but that's the mess we're in right now.

SPEAKER_02 14:50

What role does consent have in providing a breath or blood sample as a DWI arrestee?

SPEAKER_01 14:57

Anybody who drives on the public highways and public roads in Virginia is presumed to have consented to submit to a breath or blood alcohol test as directed by the police officer once they're arrested on probable cause for DWI. What does that mean, for instance, then, if for whatever reason the cop tells you to do a blood test rather than a breath test? Well, ordinarily, under Supreme Court case law from the United States Supreme Court, if the cop tells you to do the blood test, that's not consent. However, in Virginia, under Virginia appellate case law, if the cop tells you to do a blood test and the defendant doesn't clearly say, I'm not doing it, or I refuse, there's still that presumption, there still can be that presumption of consent to do the test. Now, let's say the defendant says or the arrestee says, I'm not going to do a blood test. The cop can go ahead and get a search warrant from the judge, and unfortunately, or the magistrate, these magistrates and judges often sign off on such search warrants like a rubber stamp, beyond the other kind of search warrants, which are often too often signed off on like a rubber stamp, at least by the magistrates. If there's a blood search warrant issued, do not physically resist any search warrant, including a blood search warrant, even if you're deathly afraid of needles. The fact of the matter is, the needle's not so bad. As long as you have the right medical professional doing the blood draw, it's not going to hurt you. It might hurt a little bit, it might sting, it might pinch, you get the idea, but it's not going to cause the end of the world.

SPEAKER_02 16:38

What happens if a DWI defendant had alcohol after finishing driving?

SPEAKER_01 16:44

I'm happy you asked that question. It happens more often than you might think. Let's say someone hits a ditch. Let's say the driver hits a barricade. A lot of people, at least the heavy drinkers, they'll douse their miseries in alcohol. So let's say they got a bottle of vodka in there, they might start drinking vodka because they're all upset of themselves. They're going to drown their miseries in alcohol. Let's say there's a tavern across the street. Maybe they go get a couple of beers there and drown their miseries in alcohol. When the cop shows up and sees that there's a car in the ditch and the owner's standing by it because the owner doesn't want to just abandon the car. Well, it's better to do that if you've been drinking, if it's not a crime to do otherwise. So you're there by the car. You want to see if you can get it out of the ditch. You want to see if the tow company is going to come over. Well, is it a crime to drink between the time of finishing driving and being tested for blood alcohol level? Well, it might be a drunken public crime, but that's just a non-jayable offense. But can that blood alcohol level that increases by drinking after finishing driving be used against you to prove your guilt? No. Of course, there are inferences that go on and all that, but this is one of the other reasons why it's so important not to answer the cops' questions. Because one of the cops' questions tends to be for a DWI investigation, how much did you have to drink? When did you last drink? So if the defendant says I didn't drink, then they have no defense to say I drank after driving. They could try that, but you see where I'm going here. And if the defendant said I last drank two hours ago, where are they going to go there? The fact of the matter is, a person who drowns their miseries in alcohol after hitting that ditch might still tell the cop they drank two hours ago, thinking that might make them less guilty. Don't talk to the cops.

SPEAKER_02 18:46

What if you have GERD?

SPEAKER_01 18:48

GERD stands for gastroesophageal reflux disease, also known as acid reflux. When someone has GERD and a lot of people have GERD, the stomach contents can easily go into the mouth, often without them knowing it. The hiatal hernia stays open. This is one of the many reasons why the breath testing after DWI arrest is unreliable. The breath testing after DWI arrest is supposed to be checking for deep lung alcohol, not for mouth alcohol. That's the reason why the Department of Forensic Science of Virginia requires that the breath technicians check your mouth first, at least 20 minutes before blowing into the machine, actually having you open your mouth. And a lot of times they don't have you open up your mouth to check to see if there are foreign substances in there and waiting at least 20 minutes to clear out residual alcohol. Now that's junk science because you can't be sure that the residual alcohol is being cleared out of there even if there's no GERD over 20 minutes. What if you have a tongue ring? What if you have dentures to trap the mouth alcohol? Etc. etc. But with GERD, if the person knows they're a GERD sufferer, this is the time for them to speak to their DWI lord to decide whether they're going to do the GERD defense. Now, the prosecutor will try to bring out evidence that the breath technician told the person belonging to the machine, let me know if you burp, belch, or vomit. Isn't that silly to use burp and belch in the same sentence? They're the same thing I thought. Well, the person with GERD doesn't know if any stomach contents are going to the mouth if they're constantly having acid reflux. So the best way to set up the GERD defense for trial is to have a forensic toxicologist testify about the unreliability of the breath testing if the person is a GERD sufferer to make sure that you have a recent diagnosis or soon after the incident have a diagnosis about whether you have GERD with the endoscopy exam. And that's not the most pleasant thing because they shove a tube down your esophagus, but they you you do get um you do get anesthetized for that. Uh and then you want to have the medical doctor come in and testify who diagnosed the GERD, and on top of that, ideally, you want to have a gastric emptying process done where you have a test about how long it takes for stomach contents to leave your stomach. Because at the time that you take the breath test, if your stomach's already empty of contents, including alcohol, then the GERD argument doesn't hold as much water. Now that can be expensive, but that can also be worthwhile.

SPEAKER_02 21:28

How soon should you hire a DWI attorney?

SPEAKER_01 21:32

The sooner the better, because there are all sorts of defenses to be started and developed and all sorts of evidence to obtain. You really don't know what that evidence is and defenses are until you talk to a qualified lawyer. Now, a lot of people don't have the money set aside to hire a lawyer. Most people don't walk around having a separate part of their bank account to hire a lawyer if they need. So certainly you might need some time to hire a lawyer, but ask the lawyers that you meet with, how much time do I have to hire you before it starts getting detrimental for me? At least do that. And if it's going to take a long time for you at a lawyer, if you can qualify for a court-appointed lawyer, it's not a bad idea to apply for a court-appointed lawyer until you can afford a retained lawyer.

SPEAKER_00 22:17

Thank you for listening to this week's episode from Beat the Prosecution. This is a regular podcast giving people a leg up against police investigations and prosecutions. Nothing discussed on our media sources, such as our podcast or website.com.