How to Defend Against DWI Maiming Charges

defend against dwi maining chargesVirginia has some of the strictest drunk driving laws in the country, especially following a DUI accident where someone was injured.

Drivers arrested under Virginia’s driving under the influence (DUI) or driving while intoxicated (DWI) statutes may face severe civil and criminal penalties.

Incidentally, Virginia is one of the safest states in the nation as it pertains to accidents involving drunk or impaired drivers.

While the community has a valid interest in protecting drivers, passengers, and pedestrians, that does not take away from a person’s fundamental right to defend themselves in the face of Virginia DWI maiming charges, one of the most serious offenses under Virginia law.

In light of the state’s strict penalties, those facing Virginia DWI maiming or similar charges should consult with an attorney to understand their rights and defenses.

At Andrew Flusche, Attorney at Law, PLC, we proudly represent drivers who are facing DUI maiming charges in Virginia. Since 2008, we’ve stood beside our clients, aggressively defending their rights and seeking the best results possible.

Legal Alcohol Limit for Operating a Vehicle in Virginia

In Virginia, law enforcement can arrest drivers for DUI if the driver has a blood alcohol concentration (BAC) of 0.08% or higher.

However, it is essential to note that one can be charged with DWI in Virginia even if their BAC is below 0.08%.

Similarly, although marijuana is legalized for recreational use in Virginia, it is still unlawful to operate a motor vehicle while under the influence of marijuana to the degree that impairs the person’s ability to drive or operate a motor vehicle safely.

Virginia’s DWI Maiming Statute

Driving under the influence or while intoxicated in Virginia can result in misdemeanor or felony charges.

Felony DWI charges occur when the driver receives a third or subsequent conviction within ten years, a DWI resulting in death, or a DWI resulting in serious bodily injury- also known as DWI maiming.

Under the Code of Virginia §18.2-51.4, a person could face DWI maiming charges in cases where they drive under the influence in a manner that is so reckless that they cause serious injury to another person that results in permanent and significant physical impairment.

What Must Prosecutors Prove in a DWI Maiming Case

To convict you under the DWI maiming statute in Virginia, the Commonwealth must prove the following elements beyond a reasonable doubt:

  • You were driving,
  • You were intoxicated,
  • You exhibited a reckless disregard for human life, and
  • You caused serious bodily injury to another.

While there are just four elements to a DUI maiming offense, there are many potential defenses. As with all criminal cases, the Commonwealth must prove each of the elements listed beyond a reasonable doubt.

Thus, if your DUI defense attorney can raise a reasonable doubt as to even just one element—a judge or jury should not convict you of the crime.

Penalties in Virginia for DWI Maiming

Virginia law provides that DUI maiming is either a Class 4 or a Class 6 felony. If the alleged victim suffers a serious bodily injury, the offense is a Class 6 felony, punishable by up to five years in prison.

However, if the alleged victim suffered serious bodily injury resulting in permanent and significant physical impairment, the offense is a Class 4 felony, punishable by up to 10 years in prison.

Defenses Involving the Elements of a DWI Maiming Charge

One of the most successful ways to defend against DWI maiming is to challenge the prosecution’s evidence, arguing that it is insufficient as it pertains to one or more elements.

Thus, as a starting place, we will review the various defenses to DWI maiming charges that relate to the elements of the offense.

The “Driving” Element

The prosecution needs to prove that you were driving (or more precisely, “operating” the vehicle) to convict you of any DUI offense.

While this is typically not a defense in routine DUI stops (because the arresting officer observed the driver behind the wheel), it comes up regularly in DWI maiming cases.

This is because DUI maiming almost always involves an accident where occupants are outside of their cars by the time officers arrive on the scene.

However, if it is your car or there is no evidence that others were present, arguing that you weren’t driving could be an uphill battle. But remember, it’s the Commonwealth’s job to prove you were driving.

It is not your burden to prove that you were not driving. So if the prosecution’s evidence does not prove you were driving beyond a reasonable doubt, the jury should find you not guilty.

The “Intoxication” Element

In DWI maiming cases, the Commonwealth must prove that the driver was operating their vehicle under the influence under Va. Code §18.2-266.

Common evidence prosecutors use to meet this element includes blood tests or breath tests.

Of course, not all DWU maiming cases involve chemical test evidence, so prosecutors may present evidence of erratic driving, admissions, and results of field sobriety tests to establish culpability.

However, an experienced defense attorney can refute this evidence by either challenging the breath or blood test results or providing an innocent explanation for what may otherwise appear to be signs of impairment.

For example, if the officer uses red eyes as an indication of intoxication, your lawyer could argue that you were not intoxicated but suffered from allergies.

The “Reckless Disregard for Human Life” Element

Next, prosecutors pursuing DWI maiming charges must prove that the driver’s conduct was so egregious that it amounted to a reckless disregard for human life.

In this context, “reckless disregard” refers to criminal negligence.

In these cases, the judge or jury will objectively determine whether the conduct amounted to criminal negligence by evaluating whether the driver knew or should have known the likely consequences of their conduct.

It is important to note that driving under the influence alone does not establish the driver’s reckless disregard for human life.

A defense attorney can contextualize the facts to put them into perspective, showing that you did not exhibit a reckless disregard for human life.

For example, an attorney might argue that because your BAC was just barely over the legal limit, your mindset couldn’t have been reckless because you honestly thought you were okay to drive.

The “Serious Bodily Injury” or “Permanent Physical Impairment” Element

Under Virginia’s DWI maiming statute, the prosecutor must prove that the driver caused serious bodily injury to another.

The DUI maiming law provides some clarification by noting that serious bodily injury “means bodily injury that involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.”

Additionally, the prosecutor must also prove that the victim’s injuries resulted in significant and permanent physical impairment.

Challenging this element usually involves reviewing the alleged victim’s medical records and strategically cross-examining them on the stand.

For example, if the alleged victim has gone back to work by the time the trial comes around, it opens the door to argue that their injuries were not as serious as the prosecutor claims.

Better yet, your attorney might be able to find pictures of the alleged victim on social media engaging in activities that are inconsistent with the extent of injuries the prosecutor claims they suffered.

The “Causation” Element

Virginia’s DUI maiming statute requires prosecutors to prove that a driver’s actions caused the alleged victim’s injuries.

Thus, one common defense involves arguing that you were not at fault for causing the accident.

Of course, even if you are successful, you may still face DUI charges—but the punishment for a DUI pales in comparison to those for DUI maiming, so this is often a welcome trade-off.

The above defenses to DWI maiming are just some of the alternatives available to you. There are many others.

However, while these defenses exist, it is important to recognize that the prosecutor will also know about them—and will be prepared for them.

Thus, it is imperative for anyone facing these serious charges to reach out to an experienced Virginia criminal defense attorney to help prepare their defense.

Are You Facing DUI Maiming Charges in Virginia?

If you were recently charged, the next step is to reach out to an experienced attorney to help you defend against DWI maiming charges.

At Andrew Flusche, Attorney at Law, PLC, we have over 15 years of experience defending clients who face serious criminal and traffic-related charges, including DUI maiming offenses.

Andrew Flusche is an authority on DUI law throughout Virginia, and he takes pride in providing each of his clients with the defense they need, deserve, and are entitled to.

Ryan Fitzgerald is a former prosecutor who has extensive experience with DWI maiming charges.

We offer free consultations to all prospective clients, where we will answer your questions and discuss how we can help you fight your case.

To learn more and to schedule a free consultation with a Virginia DWI maiming attorney today, call 540-318-5824. You can also reach us through our online contact form, and one of our attorneys will be in touch shortly.

Andrew Flusche

My name is Andrew Flusche. I am a traffic and misdemeanor defense lawyer in Virginia. I limit my practice to traffic tickets and misdemeanor defense, so I know the ins and outs of these offenses. I literally wrote the book on reckless driving in Virginia which you can get on Amazon here or download for free here. I opened my practice in 2008 after earning my Juris Doctor degree from the University of Virginia School of Law. Since then, I have earned over 600 5-star reviews from happy clients on Google, Yelp, and Facebook. If you’ve been charged with a misdemeanor offense in Virginia, please don’t hesitate to contact me. Your initial consultation is always free, and you'll talk directly with me about the details of your case.

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