Avoid These Mistakes After a Virginia DUI Arrest

avoid these mistakes after dui arrest virginiaA DUI arrest in Virginia is often a frustrating, embarrassing situation that no one wants to find themselves in. Unfortunately, you cannot take back the actions that resulted in your arrest.

Still, you can preserve the information about your case and avoid common mistakes in the aftermath of your arrest so long as you know how.

After an arrest, your first instinct may be to explain your situation to the officers, try to rationalize their accusations, or simply agree to whatever they ask you to do.

Any of these responses can provide the police with more information to support your conviction and jeopardize any potential legal defense that applies to your case.

Andrew Flusche and Ryan “Fitz” Fitzgerald have defended hundreds of clients facing DUI charges in Virginia. We know that not everyone arrested for DUI is guilty.

Let us review the details of your case and see how we can help you. Reach out to our office to schedule an appointment with a member of our team.


What to Do After Being Arrested for DUI in Virginia

A DUI arrest is not a scenario that most people prepare for. Our team compiled a list of some common mistakes people make during a DUI arrest, so you know what to avoid a DUI conviction.

Our attorneys at Flusche & Fitzgerald can answer any other questions that may arise along the way.

Do Not Answer Questions from Law Enforcement

During an investigation, law enforcement officers will ask the accused questions to attempt to obtain incriminating information.

For example, an officer may ask you where you are coming from, where you are going, and your activities from the previous day.

Remember, the officer who pulls you over is not your friend. While it may seem like an innocent conversation, the prosecutor will use all of your statements against you if the case goes to trial.

You should only provide authorities with legally required information. For additional questions, you should exercise your right to remain silent. Let your attorney do the talking during our negotiations with the prosecutor.

Completing Roadside Sobriety Tests

The National Highway Traffic Administration (NHTSA) developed standardized field sobriety “tests” (SFSTs) to help officers determine when individuals are impaired and show signs of intoxication. Common field sobriety tests include:

  • One-leg stand,
  • Walk and turn,
  • Horizontal gaze nystagmus (HGN), and
  • Vertical gaze nystagmus (VGN).

The NHTSA acknowledges that the SFSTs are not entirely reliable, reporting that the one-leg-stand test is about 65% reliable, the HGN test is about 77% reliable, and the walk-and-turn test is about 68% reliable.

An officer’s prejudices and biases can weigh into their conclusions and render the test useless.

You can refuse to complete roadside sobriety tests, though offices will usually not tell you so. If an officer asks you to perform roadside sobriety tests, you should politely refuse.

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Recent Case Result: Judge Rules DWI Arrest Illegal

(Cases depend upon unique facts. Past cases do not guarantee future outcomes.)

Brett called our office for a serious DWI where he was facing the possibility of mandatory jail time. We sprung into action to review the evidence and develop a game plan for trial.

Fortunately, Brett was smart and exercised his rights on the side of the road. He politely declined to participate in the officer’s field sobriety exercises, and he declined to take the preliminary breath test. None of those tests are mandatory in Virginia, and Brett successfully withstood the officer’s pressure to do them.

At trial, we made a motion to suppress the arrest due to lack of probable cause that Brett was actually driving under the influence. The Commonwealth played the body camera video in attempt to show that Brett appeared intoxicated. Since Brett was calm and collected, and because he ultimately refused the roadside tests, the judge ruled that the officer did NOT have probable cause to arrest Brett.


Thanks to our successful motion to suppress the arrest, the Commonwealth ended up with no evidence that Brett was under the influence of alcohol, and the judge dismissed the DWI.


Do Not Plead Guilty Before You Talk to a Lawyer

The prosecutor may offer a plea agreement if you come to court without an attorney. You should not accept a plea before you consult with a DUI attorney and see whether a legal defense applies to your case. Some defenses include:

  • The officer lacked probable cause to arrest you for DUI,
  • You were not driving the vehicle,
  • The officer lacked reasonable suspicion to pull you over,
  • The machine used for your chemical test was not calibrated, or
  • Your chemical sample was collected incorrectly.

Once you plead guilty, your case is over. You cannot take back your plea and take your chances at trial. Do not give up your rights before you discuss your DUI arrest in Virginia with a qualified attorney.

Refusing to Submit to a Chemical Test

In Virginia, you can refuse to perform voluntary field sobriety tests. However, you cannot refuse to provide a blood or breath sample if you are arrested for suspected drunk driving. This is because of Virginia’s implied consent law.

Implied consent means that by operating a vehicle on Virginia roads, you automatically agree to a blood draw or breath test if you are arrested on suspicion of DUI.

Many clients want to know, Will I lose my license for a DUI refusal?

Typically, the answer is yes. A first-time conviction for refusal in Virginia is considered a civil offense. The court will suspend your driver’s license for one year.

A second violation within ten years is considered a Class 1 misdemeanor. A second conviction within ten years will result in losing your driving privileges for three years.

Talk to a Virginia DUI Lawyer Right Away

With extensive experience handling DUI cases, we know the ins and outs of the criminal justice system and can answer any of your questions about the process.

Even if you did violate the law, your DUI attorney’s job is to help you get a fair outcome and minimize the consequences of any criminal conviction.

Ryan Fitzgerald

I'm Ryan Fitzgerald; everyone calls me Fitz. I partnered with Andrew to form a focused defense team that is devoted to your needs. I have over 12 years of experience as a former prosecutor, so I know what the Commonwealth wants to see for negotiations and how to find the weak spots in their case. My experience ranges from reviewing all incoming DWIs to prepare other prosecutors for court, to training officers how to build their DWI cases, to successfully prosecuting a thirty-year cold case homicide. Your initial consultation with me is free; you'll talk directly with me about your case and how we can leverage my experience and connections to obtain the best possible result.

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