You are driving down the road in Stafford and the next thing you see is flashing lights in your rear view mirror.
Great! What joy?
At best, you are going to get a Virginia speeding ticket or some other form of traffic violation.
Worst case scenario, you are going to be charged with a crime that masquerades as a traffic ticket.
You may be asking, what kind of crime could you be charged with for just driving down the road?
Here are the possible criminal charges you could be facing:
- Reckless Driving
- Driving On Suspended License
- Aggressive Driving
So what is the big deal with any of the above tickets? After all they are just traffic tickets right?
Wrong. The above tickets are misdemeanors.
What is a misdemeanor ticket in Virginia? A misdemeanor ticket may land you in jail and cause you to lose your license.
So you now have two options if you have received a misdemeanor ticket or speeding ticket.
You can go to court without a lawyer and hope for the best or you contact the SRIS Law Group lawyers for help.
We defend clients charged with tickets.
We have a client meeting location in Prince William, VA. You can reach by phone at 703-278-0405 or contact us online.
The following are some of the questions our clients ask us when they get a ticket in Central VA:
- Do I have to go to the Stafford court if I got a ticket in this county?
- If I get too many Stafford tickets, will it affect my driving record in Virginia?
- How do I find an Stafford lawyer?
- How much does it cost for me to get a lawyer to fight my Stafford Virginia tickets?
- If I got a moving violation in Caroline court, do I need Caroline Virginia lawyer?
- Can a Spotsylvania lawyer help me with my Caroline Virginia tix and Charlottesville Virginia tix?
The following are some of the traffic laws:
Law § 46.2-870. Maximum speed limits generally.
Except as otherwise provided in this article, the maximum speed limit shall be 55 miles per hour on interstate highways or other limited access highways with divided roadways, nonlimited access highways having four or more lanes, and all state primary highways.
The maximum speed limit on all other highways shall be 55 miles per hour if the vehicle is a passenger motor vehicle, bus, pickup or panel truck, or a motorcycle, but 45 miles per hour on such highways if the vehicle is a truck, tractor truck, or combination of vehicles designed to transport property, or is a motor vehicle being used to tow a vehicle designed for self-propulsion, or a house trailer.
Notwithstanding the foregoing provisions of this section, the maximum speed limit shall be 70 miles per hour where indicated by lawfully placed signs, erected subsequent to a traffic engineering study and analysis of available and appropriate accident and law-enforcement data, on: (i) interstate highways, (ii) multilane, divided, limited access highways, and (iii) high-occupancy vehicle lanes if such lanes are physically separated from regular travel lanes. The maximum speed limit shall be 60 miles per hour where indicated by lawfully placed signs, erected subsequent to a traffic engineering study and analysis of available and appropriate accident and law-enforcement data, on U.S. Route 29, U.S. Route 58, U.S. Route 360, U.S. Route 460, and on U.S. Route 17 between the town of Port Royal and Saluda where they are nonlimited access, multilane, divided highways.
§ 46.2-862. Exceeding speed limit.
A person shall be guilty of reckless driving who drives a motor vehicle on the highways in the Commonwealth (i) at a speed of twenty miles per hour or more in excess of the applicable maximum speed limit or (ii) in excess of eighty miles per hour regardless of the applicable maximum speed limit.
The following is a case that is illustrative of a case:
George Lamay (appellant) appeals his conviction for driving while intoxicated (DUI). He contends the trial court erred when it refused to allow testimony at his DUI trial relating to his alleged physical inability to take a breath test following his DUI arrest. Appellant argues that, under the DUI statutes, his inability to take a breath test required the Commonwealth to provide him a blood test; absent a blood alcohol test, appellant asserts that the trial court erred in refusing to dismiss the case. Appellant also contends that, due to numerous contradictions and discrepancies in the evidence, the evidence was insufficient to prove his guilt. For the reasons that follow, we reverse appellant’s conviction and remand.
Arlington County Police Officer George Lichtenberg arrested appellant on June 7, 1997, and charged him with driving under the influence of alcohol. At the police station, Lichtenberg advised appellant of the implied consent law and about the breath test. The police never obtained breath test results. The police also charged appellant with refusing to take a breath test in violation of Code § 18.2-268.3.
DUI Trial in District Court
On August 7, 1997, the Arlington County General District ct convicted appellant of DUI and sentenced him to sixty days in jail, with fifty-four days suspended. In addition, the ct fined him $ 1,500, with $ 1,000 suspended, and ordered him to be of good behavior and attend and successfully complete an alcohol safety program. The ct suspended his driver’s license for one year and granted him a restricted license, allowing him to travel to and from work during working hours.
Defense counsel argued that Code § 18.2-268.2 requires that a “‘blood test shall be given'” if “‘the breath test is unavailable or the person is physically unable to submit to a breath test.'” Counsel made the following argument:
That’s mandatory. “Shall be given.” I will proffer to the ct that not only was it not given, it was not even offered. And that is a violation of 18.2-268.2, and there is a long line of cases that talks about it. He was deprived of his opportunity to produce evidence that would establish his innocence in violation of this code section. We can’t bring that to the ct’s attention without this evidence. If we bring this to the ct’s attention and the ct agrees it’s a violation, the remedy pursuant to the case law out of the ct of Appeals is dismissal of the prosecution of the D.W.I. because he was deprived of the statutory right to present evidence in his own defense in as much as 18.2-268.2 says that the blood test shall be given, and it was not even offered in this case.
If it had been offered and he had refused that, we wouldn’t be standing here, or at least I wouldn’t be making the argument, but the evidence was that it was not even offered, let alone required, that is a violation. And it requires a dismissal of the prosecution as a remedy.
The Commonwealth argued that, because a driver no longer has a choice of tests, such evidence was relevant only to the refusal charge. The trial judge sustained the objection. The prosecution also asserted that trial should proceed and appellant’s guilt should be determined from the other evidence.
After refusing appellant’s testimony about the breath test, the trial ct allowed defense witness Marietta Warden to testify as an expert about the effect of alcohol on a person’s blood alcohol level, and to render an opinion about appellant’s behavior and blood alcohol level based on the amount of alcohol appellant told her he had consumed. 1In response to the trial ct’s questions, Warden said that appellant told her he was an asthmatic and that he had suffered an asthmatic attack the night he was arrested.
After the parties rested, defense counsel raised “one tidy bookkeeping matter.” “In order for the record to be complete and to preserve all this,” and “for purposes of the evidentiary basis for the renewal of the motion to strike,” defense counsel introduced Exhibits 5 and 6. Exhibit 5 is a copy of the summons for the refusal charge from the district ct indicating that the refusal charge was dismissed, and Exhibit 6 is entitled “Certificate of Refusal–Breath/Blood Test.” Exhibit 6 is signed by the magistrate, and under the magistrate’s signature is a handwritten notation regarding the breath test refusal. Defense counsel asked the trial judge “to take them and mark them,” and “take judicial notice of the ct’s own records.” The following colloquy took place:
DEFENSE COUNSEL: For the purpose of the record, I renew the motion to strike that was entered earlier. The ct has probably heard the totality of the argument in addressing the Commonwealth’s objections to the admissibility of that basis evidence. Let me just reiterate so the record is complete, that it’s based on a violation of the sic 18.2-268.3B inasmuch as the statute requires that if the breath test is unavailable or the person is physically unable to submit to the breath test, a blood test can be given and that was not done in this case.
THE ct: The record will reflect that five and six are admitted for the purposes stated.
DEFENSE COUNSEL: Yes, sir.
THE ct: And your motion to strike is denied and your exception is noted.
DEFENSE COUNSEL: And we ask the ct to take judicial notice of the ct’s own records, you will see the certified copies of not only the refusal certificate issued by the magistrate, and made a part of the General District ct records with reference to the trial of the charge of refusal itself and the warrant charging Mr. Lamay with refusal. Also, the back side of each of those documents, specifically the refusal wherein the case was tried, and I’m not certain, in a civil case, it says not guilty, it says charge dismissed. It’s not a criminal case, it can’t be guilty or not guilty. It does indicate it was dismissed.
THE ct: I don’t believe that it is in this file. It has its own file, I think. And that file.
DEFENSE COUNSEL: This is a General District ct file from which those were extracted and the clerk certified them on the flip side.
THE ct: I will take judicial notice. It’s not in this file, you’re aware of that?
DEFENSE COUNSEL: That is correct.
THE ct: That will be part of the record.
Beneath the magistrate’s signature on Exhibit 6 is the following handwritten statement: “Accused gave insufficient sample and would not answer when asked if he wished to try the test again.”
After hearing argument regarding some discrepancies between Lichtenberg’s testimony and the testimony of appellant, the trial ct found appellant “not a credible witness” and found him guilty of DUI. The ct sentenced appellant to twelve months in jail with all but ninety days suspended. The ct also fined appellant $ 2,500. On December 12, 1997, the ct denied appellant’s motion for reconsideration.
Appellant contends the trial ct erred in refusing to allow testimony relating to the failure of the police to comply with the requirement that when a person is physically unable to submit to a breath test, a blood test shall be given. 2We have not had an opportunity to construe fully the provisions of Code § 18.2-268.2 since its effective revision date of January 1, 1995. Therefore, this case comes before us as one of first impression and requires us to analyze Code § 18.2-268.2(B) in situations where at his or her DUI trial an accused DUI driver alleges physical inability to take a breath test. We must determine, under the limited facts of this case, what evidence is admissible, the procedures to follow, and what remedy, if any, should issue.
The ct held that “evidence about defendant’s sobriety, about her driving proficiency, and about her subjective belief that she was not under the influence of alcohol, while admissible in a DUI trial, was utterly inadmissible in the refusal trial.” Cash, 251 Va. at 51-52, 466 S.E.2d at 739. Moreover, the ct ruled that Cash’s “desire to consult counsel ‘to see what she could do to protect her interest from being framed’ furnishes no legal basis for refusal to submit to testing.” In addition to detailing evidence that did not provide a reasonable basis for refusing a test, the ct also explained what type of evidence could provide a basis for refusal when it stated, “illustrative of a refusal that would be deemed reasonable is when ‘a person’s health would be endangered by the withdrawal of blood.'” Cash, 251 Va. at 50, 466 S.E.2d at 738 (quoting Deaner, 210 Va. at 293, 170 S.E.2d at 204).
The Supreme ct’s explanation that DUI and refusal cases are separate and distinct, and its consistent pronouncement that evidence on one charge is usually irrelevant and inadmissible in a trial on the other charge, has overshadowed the revised portion of Code § 18.2-268.2 anticipating conditions where an accused is physically unable to take a breath test.
For the foregoing reasons, the trial ct abused its discretion in not permitting appellant to elicit testimony relating to his physical inability to take the breath test. On remand, the trial ct is directed to permit appellant to present evidence regarding his physical inability to perform the breath test, after which the Commonwealth may present rebuttal evidence. The trial ct must then rule whether the accused has sufficiently carried his burden of establishing his physical inability. If the trial ct finds that the accused has fulfilled this burden and that a blood test was not offered, then the charge must be dismissed. Accordingly, we reverse and remand for proceedings consistent with this opinion.
Reversed and remanded.