Dealing with a DUI Checkpoint in Virginia

Criminal Defense Attorneys Serving Fairfax, Leesburg & Manassas, Virginia

Posted: November 27, 2013
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Even if you haven’t been drinking, seeing a DUI checkpoint ahead can make you apprehensive and nervous. Agencies are required to announce the location of DUI checkpoints.  You should look in local newspapers and government websites for announcements. Checkpoints are often located on major roadways connecting entertainment areas or on the way out of town.  They are often scheduled for weekends or around major holidays.

Here are a few things to consider as you approach a DUI checkpoint  in Fairfax County or Northern Virginia.

Follow these suggestions and the encounter may go much easier than you anticipated.  Of course if you have been drinking heavily and decided to drive, you may not remember these instructions… so … if you plan to drink to the point where you are really concerned about getting arrested at a DUI checkpoint, call a taxi.

1. First  – Don’t panic.

Slow down and proceed normally until you are actually stopped by an law enforcement officer.Don’t make a U-turn and drive away. Even if you haven’t been drinking and just want to avoid a delay, any evasion of the checkpoint draws the attention of the police to your car.  In my experience, the Fairfax or Prince William County police officers conducting the DUI checkpoint will likely radio other officers to pull you over.   The DUI plans in Virginia designate this car the “chase vehicle.”

2. Proceed slowly
There is a very good chance you be stopped. It is not legal for the police to detain every car at a Virginia DUI checkpoint.   Most DUI checkpoint plans use a mathematical formula to determine which cars to pull over.  The Fairfax, Loudoun, and Prince William County Police must maintain a copy of the plan and the mathematical formula in case the checkpoint is challenged in court.

3. Just do what they tell you.
If your car is directed to be detained, it’s just like being pulled over.  Have your license and registration ready to hand to the officer.  They will most likely ask for these documents, so just pull them out while you’re waiting in line.

4. Don’t say much to the officer. 
Federal law states that law enforcement officers must minimize the amount of time they detain your vehicle. This means they can only ask you to step out of your vehicle and take a field sobriety test if the officer feels you exhibit obvious signs of intoxication: glassy eyes, slurred speech, smell of alcohol in the car, etc. Remember, even saying something to the effect of “I’ve only had one drink,”  can be interpreted as a confession and lead to further questioning.  Your best bet if asked this question is to politely ask if you are free to leave without answering any further questions.

5. Be cooperative with the police but firm.
If the police officer orders you out of the car, do so.  If the officer merely asks to step out, ask him or her if you are required to do so, because you would rather be on your way.

In Virginia, you are not required to perform any Field Sobriety Tests.  These tests are difficult for healthy and fit people to pass. The tests are meant to divide a person’s attention, so when you are nervous, cold and under pressure on the side of a road. these tests are extremely difficult. You may choose to decline the tests, but be aware you may be placed under arrest.  However, if you attempt to do the tests and fail, you may be arrested anyway and you provided evidence to the police that can be used for conviction.

6. You are not required to blow into any handheld device
This machine is called a preliminary breath test.  It is voluntary under Virginia law.  The officers often say they are required to offer the test to you, but it is still voluntary.  The officer may even say that the test can’t be used in court (Untrue!).  If your breath registers above a .07 BAC, you may be arrested.  You may choose to decline the tests, but be aware you may be placed under arrest.  However, if you attempt to do the tests and fail, you may be arrested anyway and you provided evidence to the police that can be used to justify your arrest.  If you are in doubt as to your Breath Alcohol Level, you must use your judgment based upon this information.

7.  Virginia Implied Consent applies to the breath test that is hooked up to a computer or a blood test.

The machine used in Virginia is the EC/IR 2.  If you have never been convicted of a DUI before, the maximum punishment for declining to blow into the machine is a 12 month loss of your driving privileges in Virginia and a civil penalty.  You may not  drive at all in Virginia for 12 months.  However, if you blow into the machine and you register above a .07 BAC, you have provided the police the best evidence of your intoxication and may lead to a permanent criminal conviction for DUI.  Again, use your judgment.

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