DUI Attorney Fairfax Virginia

New Virginia DUI Law, Effective July 1, 2020

DUI Change in the Law on Refusal

Other articles on my site explain what “Refusal” is in detail.  But as a refresher, here is how a good DUI Attorney Fairfax Virginia will describe “Refusal” law.  When a person drives on the roads in Virginia, he has impliedly consented to taking a breath test for alcohol (or a blood test if the breath test is unavailable).  Thus, if a person is pulled over and the Police Officer has “probable cause” to believe that the driver MAY be intoxicated, the driver, as a condition of driving on the road, has already agreed to take the test.  If the driver refuses to take the test, he can be charged with Refusal.  Under current law, Refusal for first offense is not a crime, the but the driver’s license is suspended for one year without any way to drive for any reason.  Many people think, “This is blackmail!  If I don’t want to give the Police evidence, I lose my license?”  And that would be correct.  That is why most people go ahead and take the test even though it will likely seal their fate.  Most people need to drive, at least to get to work and to care for children.

This law was put in place to incentivize people to take the test.  And any experienced DUI Attorney Fairfax VA will tell you that with a breath test coming into evidence, DUI’s are much more difficult to win. 

But this has all changed with a new law that will go into effect on July 1.  This law allows drivers convicted of refusal to have a restricted license after 30 days.  This is likely catastrophic to DUI enforcement.  Now, if a person is pulled over, if they can withstand not driving for 30 days (as opposed to the one year under the previous law), they will not take the breath test.  Here is the text of the new law.  Italics is new language and strike throughs is language being removed.  (Note that this does not apply to commercial driver’s licenses.)

E. A defendant who is found guilty of a first offense and whose license is suspended pursuant to subdivision A 1 or B 1 may petition the court 30 days after the date of conviction for a restricted license and the court may, for good cause shown, provide that the defendant is issued a restricted license during the remaining period of suspension, or any portion thereof, for any of the purposes set forth in subsection E of § 18.2-271.1. No restricted license issued pursuant to this subsection shall permit any person to operate a commercial motor vehicle as defined in the Virginia Commercial Driver’s License Act (§ 46.2-341.1 et seq.). If the court grants such petition and issues the defendant a restricted license, the court shall order (i) that reinstatement of the defendant’s license to drive be conditioned upon (a) the installation of an ignition interlock system on each motor vehicle, as defined in § 46.2-100, owned by or registered to the person, in whole or in part, for a period of time not to exceed the period of license suspension and restriction, not less than six consecutive months without alcohol-related violations of the interlock requirements and (b) the requirement that such person not operate any motor vehicle that is not equipped with such a system for the period of time that the interlock restriction is in effect and (ii) that, as a condition of probation or otherwise, the defendant enter into and successfully complete an alcohol safety action program in the judicial district in which such charge is brought or in any other judicial district upon such terms and conditions as the court may set forth.

Note here that if a person gets a license under the Refusal, even if they were not convicted of DUI, they have to use an ignition interlock device and take the DUI course called “ASAP”, which stands for “Alcohol Safety Action Program.”  A DUI Attorney Fairfax Virginia will note the fine print, however.  If an ASAP assessment says that the program is not needed, then a Judge does not have to order ASAP. 

However, upon motion of a person convicted of any such offense following an assessment of the person conducted by an alcohol safety action program, the court, for good cause, may decline to order participation in such a program if the assessment conducted by the alcohol safety action program indicates that intervention is not appropriate for such person. In no event shall such persons be permitted to enter any such program that is not certified as meeting minimum standards and criteria established by the Commission on the Virginia Alcohol Safety Action Program (VASAP) pursuant to this section and to § 18.2-271.2. The court shall require the person entering such program under the provisions of this section to pay a fee of no less than $250 but no more than $300. A reasonable portion of such fee, as may be determined by the Commission on VASAP, but not to exceed 10 percent, shall be forwarded monthly to be deposited with the State Treasurer for expenditure by the Commission on VASAP, and the balance shall be held in a separate fund for local administration of driver alcohol rehabilitation programs. Upon a positive finding that the defendant is indigent, the court may reduce or waive the fee. In addition to the costs of the proceeding, fees as may reasonably be required of defendants referred for intervention under any such program may be charged.

If the court grants a restricted license to any person pursuant to this section, the court shall order such person to surrender his driver’s license to be disposed of in accordance with the provisions of § 46.2-398 and shall forward to the Commissioner of the Department of Motor Vehicles a copy of its order entered pursuant to this subsection. This order shall specifically enumerate the restrictions imposed and contain such information regarding the person to whom such a permit is issued as is reasonably necessary to identify such person. The court shall also provide a copy of its order to such person who may operate a motor vehicle on the order until receipt from the Commissioner of the Department of Motor Vehicles of a restricted license, but only if the order provides for a restricted license for that period. A copy of the order and, after receipt thereof, the restricted license shall be carried at all times by such person while operating a motor vehicle. The period of time during which the person is prohibited from operating a motor vehicle that is not equipped with an ignition interlock system shall be calculated from the date the person is issued a restricted license by the court; however, such period of time shall be tolled upon the expiration of the restricted license issued by the court until such time as the person is issued a restricted license by the Department of Motor Vehicles. Any person who operates a motor vehicle in violation of any restrictions imposed pursuant to this section shall be guilty of a violation of § 18.2-272. The provisions of subsection F of § 18.2-271.1 shall apply to this subsection mutatis mutandis, except as herein provided.

F. Notwithstanding any other provisions of this section or of § 18.2-271.1, nothing in this section shall permit the court to suspend, reduce, limit, or otherwise modify any disqualification from operating a commercial motor vehicle imposed under the provisions of the Virginia Commercial Driver’s License Act (§ 46.2-341.1 et seq.).

A lot of this may be confusing to someone who is not an experienced DUI Attorney Fairfax Virginia.  The bottom line here is that when this law becomes effective on July 1, 2020, a person who is charged with DUI and Refusal – if the DUI is a first offense.

For more information about the new Virginia DUI law, contact Dave Albo today.