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Description
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The defense of serious traffic offenses is a very volatile area of law in Virginia in which
constitutional protections for an individual conflict with the right of the general public to be
protected from unsafe drivers. Because of the reliance on scientific evidence to prove different
aspects of these cases, whether through field sobriety testing or chemical analysis of the arrested
driver’s breath or blood sample, or when speed-measuring devices are used, attorneys working in
this area must be well versed not just in the law but in the specialized body of knowledge that
supports these methods of proof. This book is intended to help them become so.
This book was published in 2004 and includes a 2008 supplement. It also includes forms on disc. The book is available
in both print and CD-ROM formats. The entire book and some
individual chapters and combinations of chapters are also available for immediate download. Please see the
information on electronic books
before selecting the CD-ROM or download option.
Editors: Hon. Martin F. Clark, Jr., Hon. Stephen H. Helvin, Hon. Joseph M. Serkes
Authors:
| Dr. Irma Bateman Adams |
G. Manoli Loupassi |
| J. Burkhardt Beale |
David A. Oblon |
| Timothy C. Carwile |
Rhonda Quagliana |
| G. Barton Chucker |
Michael I. Rieger |
| Cheryl V. Higgins |
Donald S. Sawicki |
| Jon D. Huddleston |
Ronald E. Smith |
| Francis McQ. Lawrence |
|
Copyright © 2004, 2008 Virginia Law Foundation.
All rights reserved.
TABLE OF CONTENTS
About the Editors and Authors/Acknowledgments
Preface
Forms on Disk: Instructions and Table
CHAPTER 1: SUBSTANTIVE LAW
1.1 OVERVIEW
1.101 Types of Offenses
1.102 Serious Traffic Offenses Defined
1.103 Jurisdiction
1.104 Collateral Consequences
1.2 SERIOUS TRAFFIC OFFENSES NOT BASED ON INTOXICATION
1.201 Reckless Driving
1.202 Aggressive Driving
1.203 Attempt to Elude Officer
1.204 Hit and Run (Accidents)
1.205 Unlicensed Driving
1.206 Driving After Habitual Offender Declaration
1.207 Driving a Commercial Vehicle While Disqualified
1.3 INTOXICATION-RELATED OFFENSES
1.301 Driving While Intoxicated
1.302 Underage Driving After Illegal Alcohol Consumption
1.303 Commercial Licensees
1.304 Refusal to Submit to Test
1.305 Refusal by Commercial Driver
1.306 DUI-Related Manslaughter
1.307 DUI-Related Serious Bodily Injury
CHAPTER 2: PROCEDURE
2.1 OVERVIEW
2.101 Sources of Law
2.102 Review of Arrest for Compliance with Statutes
2.2 PROCEDURE AT THE SCENE
2.201 Officer in Uniform
2.202 Use of Radar and Other Technology
2.203 Preliminary Breath Test
2.3 PROCEDURE AFTER ARREST
2.301 Misdemeanor Arrest Statute
2.302 Venue
2.303 Implied Consent
2.304 Testing for Drugs and Alcohol
2.305 Pretrial Suspension of License
2.306 Vehicle of Arrested Driver
2.307 Bail
2.4 PRETRIAL MOTIONS
2.401 Motion for Bill of Particulars
2.402 Motion for Discovery
2.403 Motion to Suppress
2.404 Request for Certificate of Analysis
2.405 Motion Challenging Constitutionality of Statute
2.406 Speedy Trial and Double Jeopardy
2.5 PROCEDURES AT TRIAL
2.501 Trial of Misdemeanors
2.502 Trial of Felonies
2.503 Exclusion of Witnesses
2.6 EVIDENCE
2.601 Generally
2.602 Evidence in DUI and License Suspension Cases
2.603 Calibrations of Speed-Measuring Equipment
2.604 Preliminary Breath Test
2.605 Admissibility of Certificate
2.7 STATUTORY PRESUMPTION OF INTOXICATION
2.701 Definition
2.702 For Commercial Licensees
2.8 STATUTORY DEFENSES
2.801 Officer Not in Uniform
2.802 Reasonable Refusal
2.803 Timeliness of Prosecution
2.804 Admissibility of the Certificate of Analysis
2.805 Accident Reports Not Admissible
2.806 Effect of Conviction on Other Charges
2.807 Effect of Dismissal
2.808 Forfeiture of Vehicle
2.9 APPEALS OF MISDEMEANOR CONVICTIONS
2.10 RULES OF THE SUPREME COURT
2.1001 General District Court Rules
2.1002 Circuit and Juvenile Courts
2.1003 Uniform Fine Schedule
2.11 LOCAL ORDINANCES APPLICABLE TO TRAFFIC OFFENSES
2.1101 Authority to Enact
2.1102 Consistency with State or Federal Law
APPENDIX 2-1: DECLARATION AND ACKNOWLEDGMENT OF REFUSAL--
BREATH/BLOOD TEST
APPENDIX 2-2: NOTICE OF ADMINISTRATIVE SUSPENSION OF DRIVER'S
LICENSE
CHAPTER 3: STOPS, ARRESTS, AND SEARCHES
3.1 INTRODUCTION
3.2 STOPS
3.201 Detention of a Citizen by a Police Officer
3.202 Not All Encounters Are Stops
3.203 Stop Includes a Show of Police Authority
3.204 Articulable Suspicion to Stop
3.205 Random Stops Unconstitutional
3.206 Scope of Traffic Stop
3.207 Examples of Unlawful Stops
3.208 Examples of Lawful Stops
3.209 Sources of Articulable Suspicion to Stop
3.210 Stops Pursuant to Community Caretaker Role
3.211 Roadblocks
3.212 Avoiding a Roadblock
3.213 Pretextual Stops
3.214 "Stop" Statute
3.215 Scope of Stop
3.216 "Fruits" of Unlawful Stop
3.3 ARRESTS
3.301 Definition
3.302 Probable Cause for Arrest
3.303 Probable Cause in DUI Cases
3.304 Arrest Valid Under Virginia Law
3.305 Where the Arrest Occurs
3.306 Remedy if Arrest Is Illegal or Unconstitutional
3.307 Admissibility of Tests
3.308 Refusal to Take a Blood or Breath Test
3.4 MIRANDA ISSUES
3.401 Pre-Arrest "Custody"
3.402 Facts and Circumstances
3.403 Investigative Detentions
3.404 Post-Arrest
3.5 SEARCHES
3.501 Introduction
3.502 Blood Alcohol Searches
3.503 Searches Incident to Traffic Arrests
CHAPTER 4: BEGINNING THE REPRESENTATION
4.1 OVERVIEW OF TRAFFIC REPRESENTATIONS
4.101 In General
4.102 Review of Statutes and Case Law
4.2 INITIAL CLIENT CONTACTS
4.201 Initial Office Contact
4.202 Before the Meeting
4.203 First Meeting Agenda
4.204 Should the Client Testify?
4.205 Recommendations for Client Action
4.206 Issues When the Client Is Incarcerated
4.3 REVIEW OF THE COMMONWEALTH'S EVIDENCE
4.301 Police Reports
4.302 Scene of the Incident
4.4 LAY WITNESSES
4.401 Pretrial Interviews
4.402 The Client
4.403 Other Lay Witnesses
4.5 POLICE WITNESSES
4.501 General Considerations
4.502 Interview of Arresting Officer
4.6 CONTACT WITH THE COMMONWEALTH'S ATTORNEY
4.601 Overview
4.602 Discuss Strategy with the Client
4.603 Negotiated Outcomes
APPENDIX 4-1: CLIENT INTAKE AND INTERVIEW FORMS
APPENDIX 4-2: SAMPLE LETTER TRANSMITTING FEE AGREEMENT
APPENDIX 4-3: SAMPLE FEE AGREEMENT FORM
APPENDIX 4-4: MOTION FOR CONTINUANCE
APPENDIX 4-5: ORDER FOR CONTINUANCE
CHAPTER 5: TRIAL PREPARATION: STRATEGY AND TACTICS
5.1 PREPARATION AFTER THE FACTUAL INQUIRY
5.101 In General
5.102 Information from the Client
5.2 PRETRIAL HEARINGS
5.201 In General
5.202 Bond Hearings
5.203 Pretrial Suspension Hearing
5.204 Pretrial Hearing on Impoundment of Vehicle
5.205 Suppression Hearings
5.3 THE DISCOVERY PROCESS
5.301 In General
5.302 Factors Against Filing Discovery
5.303 Discovery in General District Court
5.304 Discovery in Circuit Court
5.4 OBTAINING AND REVIEWING DOCUMENTS
5.401 In General
5.402 Virginia Uniform Summons or Warrant
5.403 Certificate of Blood Alcohol Analysis
5.404 Witness Requests and Returns of Service
5.405 Criminal Complaint
5.406 Documentation of Prior Convictions
5.407 Certificate of Refusal
5.408 Warrant or Summons
5.409 Certificates of Calibration
5.5 TRIAL STRATEGY AND TACTICS
5.501 Case Evaluation
5.502 Admissibility of Evidence or Statements
5.503 Scientific Evidence
5.504 Focus on the Issues
5.505 The Judge
5.506 Should the Client Testify?
5.507 Expert Witness
5.6 JURY TRIAL OR BENCH TRIAL
5.601 In General
5.602 Factors to Consider
5.603 Constitutionality of the DUI Statute
5.7 EVIDENCE
5.701 Admissibility
5.702 Stipulations
5.8 CROSS-EXAMINATION
5.801 In General
5.802 Purpose
5.803 Opportunities at Trial
5.804 Resources
5.9 DEFENSES USING THE STATUTORY FRAMEWORK
5.901 In General
5.902 Driving While Intoxicated Defense
5.903 Inference of Intoxication
5.904 "Driving or Operating" a Vehicle
5.905 Driving After Illegal Consumption
5.906 Commercial Operator DWI
5.907 Refusal
5.908 Local Ordinances
5.10 DECISION TO APPEAL
5.11 POST TRIAL
5.1101 The Confirming Letter
5.1102 Closing the File
APPENDIX 5-1: NOTICE OF VEHICLE IMPOUNDMENT/IMMOBILIZATION
APPENDIX 5-2: MOTION TO SUPPRESS--CERTIFICATE NEITHER FILED NOR
FURNISHED TO DEFENSE COUNSEL
APPENDIX 5-3: MOTION TO SUPPRESS--CERTIFICATE FILED BUT NOT SENT TO
DEFENSE COUNSEL
APPENDIX 5-4: NOTICE AND MOTION FOR DISCOVERY
APPENDIX 5-5: ORDER FOR DISCOVERY
APPENDIX 5-6: DEFENDANT'S MOTION TO COMPEL DISCOVERY
APPENDIX 5-7: MOTION FOR BILL OF PARTICULARS (GENERAL DISTRICT
COURT)
APPENDIX 5-8: MOTION FOR BILL OF PARTICULARS (CIRCUIT COURT)
APPENDIX 5-9: SAMPLE CLOSING LETTER
CHAPTER 6: TECHNICAL DEFENSES IN SPEED-RELATED CASES
6.1 OVERVIEW
6.101 Radar and Laser Technology
6.102 Additional Resources
6.2 MICROWAVE RADAR TECHNOLOGY
6.201 How It Works
6.202 Flaws in the Technology
6.203 Interference
6.204 Short Transmit Time (Pulsed)
6.205 Operator Error
6.3 LASER RADAR TECHNOLOGY
6.301 How It Works
6.302 Flaws in the Technology
6.303 Operator Error
6.4 OTHER SPEED MEASURING SYSTEMS
6.401 In General
6.402 Pacing (Patrol Vehicle Speedometer)
6.403 Manual Timing Systems
6.5 USE OF EXPERTS
CHAPTER 7: TECHNICAL DEFENSES IN INTOXICATION CASES
7.1 BREATH AND BLOOD ANALYSIS
7.101 In General
7.102 Background
7.2 FIELD SOBRIETY TESTING
7.201 Background
7.202 Early Research in the Laboratory Setting
7.203 Tests by Law Enforcement in the Field
7.204 Development of the Modern Standards
7.3 DEVELOPING A DEFENSE
7.301 Nature of Officer Training
7.302 Most Common Field Sobriety Tests
7.303 Questioning the Tests
7.304 Blanket Evidentiary Objection
7.305 One-Leg-Stand Test
7.306 Walk-and-Turn Test
7.307 Horizontal Gaze Nystagmus Test
7.308 Unsanctioned Field Tests
7.309 Refusal of Field Sobriety Tests
7.4 THE PRELIMINARY BREATH TEST
7.401 Use Governed by Statutory and Administrative Law
7.402 Admission at Pretrial Hearings
7.5 THE INTOXILYZER 5000
7.501 Statutory Regulation of the Breath Test
7.502 Scientific Principles
7.503 Operating Procedures
7.504 Flaws in the Analysis
7.505 Mouth Alcohol Interference
7.506 Simulation Test Issues
7.507 Operational Defenses
7.508 Compliance Issues
7.6 THE INTOX EC/IR II
7.7 BLOOD TESTS
7.701 When Blood Tests Are Used
7.702 Statutory Compliance Issues
7.703 Hospital Blood Tests
7.704 Practice Concerns
APPENDIX 7-1: BLOOD AND BREATH ALCOHOL AND THE LAW
APPENDIX 7-2: UNDERSTANDING STANDARDIZED FIELD SOBRIETY
TESTING
APPENDIX 7-3: SAMPLE LETTER TO DIVISION OF FORENSIC SCIENCE
CHAPTER 8: SENTENCING AND ADMINISTRATIVE SANCTIONS
8.1 PREPARATION OF THE CLIENT
8.101 In General
8.102 Client's Goals
8.103 Factual Problems
8.104 Pretrial Alcohol Evaluation
8.105 Other Pretrial Preparations
8.106 Client "Homework"
8.107 Possibility of Jail Time
8.2 NEGOTIATION PROCESS
8.201 In General
8.202 Immigration Issues
8.203 Reasons for Prosecutor to Deviate
8.204 Prior Offense Documentation
8.205 Focus on Client
8.3 PUNISHMENTS
8.301 Driving While Intoxicated
8.302 Refusal to Submit to Tests
8.303 Leaving the Scene of an Accident
8.304 Eluding Law Enforcement Officers
8.305 Driving After Being Adjudicated an Habitual Offender
8.306 Driving with a Suspended or Revoked License
8.307 Driving When License Restoration Is Contingent on Proof of
Financial Responsibility
8.308 Driving After Forfeiture of License
8.309 License Revocation for Multiple Convictions Under Section
46.2-391(D)
8.310 Aggressive Driving
8.311 Reckless Driving
8.4 ALTERNATIVE SENTENCING OPTIONS FOR FELONY CONVICTIONS
8.401 Probation Under Supervision in Community
8.402 Intensive Probation Supervision
8.403 Home Electronic Monitoring
8.404 Day Reporting Centers
8.405 Boot Camp Incarceration Program
8.406 Diversion Center Incarceration Program
8.407 Detention Center Incarceration Program
8.5 ADMINISTRATIVE SANCTIONS
8.501 Overview
8.502 When the Revocation Period Begins
8.6 RAPID POINT ACCUMULATORS
8.601 The Uniform Demerit Point System
8.602 Driver Improvement Clinics
8.603 Adult Drivers
8.604 Juvenile Drivers
8.605 DMV Intervention
8.606 Suspension for Excessive Point Accumulation
8.7 ADMINISTRATIVE LOSS OF LICENSE
8.701 Administrative Pretrial Suspension for DUI and
Refusal
8.702 Required Revocations
8.703 Suspension for Failure to Pay Costs and Fines
8.704 Failure to Pay Motor Vehicle-Related Judgment
8.705 Administrative Suspension for Serious Offenses
8.706 Restoration of Habitual Offender's License
8.707 Reinstatement Procedures
8.8 ADMINISTRATIVE IMPOUNDMENT OR IMMOBILIZATION OF A VEHICLE
8.801 Impoundment upon Arrest for Driving After Suspension or
Revocation
8.802 Impoundment After Conviction
8.9 DISQUALIFICATION OF COMMERCIAL LICENSEES
8.901 In General
8.902 Disqualification for Multiple Offenses
8.903 Disqualification for Felony Drug Convictions
8.904 Requirements upon Disqualification
8.905 Reinstatement of Commercial License
8.10 ADMINISTRATIVE APPEALS
8.1001 Appeals of Non-Mandatory Actions
8.1002 No Appeals from Mandatory Actions in Most Cases
APPENDIX 8-1: PENALTIES FOR DUI OFFENSES
TABLE OF AUTHORITIES
INDEX
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