Last Friday, I had a client’s whose DUI charge in Norfolk General District Court resulted in a “wet reckless” conviction, a great win for my client. (While this was a win, we appealed the reckless driving conviction and in the Circuit Court, the prosecutor dropped the reckless driving charge because of this case law.)

Here are the relevant facts of his case: My client and his vehicle were in a ditch when the police officer found him. My client admitted to the officer that he was the driver of the vehicle and told the officer that he drank some alcohol about 1.5 to 2 hours before the accident occurred. The officer forgot to ask my client when the accident occurred. (Which reminds me, don’t talk to police!)

According to the officer, my client failed the Field Sobriety Tests. My client also blew a .14 BAC (blood alcohol content) level for the breath test at the police station. In Virginia, there is a presumption of intoxication for those who have a .08 BAC level or higher. The judge granted my motion to suppress the results of the .14 BAC breath test because the prosecution did not establish when the accident occurred according to the 3 hour rule. Upon my examination, the officer admitted that he did not know when the accident occurred. He had not asked our client when the accident occurred. The officer also admitted to the court that it was possible that many hours had passed between when the accident occurred and when he arrived to the scene.

Virginia’s implied consent law (Virginia Code § 18.2-268.2) requires that all drivers agree to take a blood or breath test if they are arrested within three hours of an alleged offense. But without knowing when the accident occurred, the officer’s recitation of the implied consent law to my client led him to the incorrect belief that he had to submit to the test, even though there was no evidence establishing that the implied consent law even applied. Therefore, my client’s breath results needed to be excluded from evidence.

Here you can see that Virginia’s DUI law can get quite technical. The prosecution needs to prove my client’s guilt beyond a reasonable doubt and the 3 hour rule built into Virginia’s Implied Consent Law serves the purpose of making sure blood alcohol content evidence is accurate and relevant.

Without the breath analysis certificate evidence, the judge decided it would be unfair to convict my client of a DUI and gave him a reckless driving conviction instead. I was glad we were able to get this great outcome!  I also look forward to battling the reckless driving charge for my client in the Circuit Court! (It was a good case to appeal because there was no observable driving behavior and the fact that an accident occurred does not mean my client was driving recklessly.)