Attorneys Refusing DUI breath test could be smart
February 25, 2016 admin
Although the law required him to submit to a breath test during his DUI arrest, Norfolk’s top prosecutor refused, according to court records.
Defense attorneys who handle DUI cases say Commonwealth’s Attorney Greg Underwood may have made a smart move.
A blood-alcohol content reading is usually the biggest piece of evidence in a DUI case, and refusing to take a breath test stops police from getting what could be keys to a conviction.
Without it, DUI cases are based on officers’ observations and field sobriety tests, which can be attacked in court, leaving room for reasonable doubt, defense attorneys say.
“I don’t want to say it’s smarter not to do it…. But I can certainly see why he did it,” said Tariq K. Look, a Virginia Beach attorney who specializes in DUI cases. “This is just one more piece of evidence, and it’s a really big one. So the less that they have, the more helpful it can be (to a defense).
A state trooper stopped Underwood a week ago as he was exiting from Interstate 264 to Bramble ton Avenue. Underwood caught the trooper’s attention when he cut through a work zone, according to police and court records.
The trooper told a magistrate that Underwood had slurred speech and a strong odor of alcohol, was swaying or stumbling and admitted he had been drinking, according to court records.
He was charged with DUI, refusing to take a breath test and possession of a concealed handgun in public while intoxicated. He awaits a Dec. 13 hearing.
There are two ways a person can be charged with refusal, which is a civil violation on first conviction, lawyers said. They either refuse to blow into the machine, or they do blow but either intentionally doesn’t blow hard enough or are unable to complete the test because of a medical problem.
Conviction on the refusal charge mandates a one-year driver’s license suspension. Judges do not have discretion to allow restricted driving privileges.
If someone is convicted of DUI, the refusal charge is generally dismissed by a judge, Look and other lawyers said.
The legal limit for being considered impaired is a blood-alcohol content of 0.08. Another reason a driver might refuse to take a breath test is because a BAC of 0.15 percent or above requires a minimum of five days in jail.
“The only reason someone would (refuse) is that they think they may be close or over the limit,” said Bob Battle, a Richmond lawyer who handles DUI cases.
Because he’s a public servant, Underwood might not be treated like a typical defendant if he’s convicted of DUI, Battle said. A prosecutor and judge might say that because he’s an elected official, his refusal charge should not be dismissed.
Retaining a lawyer on a DUI charge generally costs $1,000 to $2,500, depending on the lawyer’s experience.
A first-offense conviction results in a minimum fine of $250 and a restricted license for six months to a year. Those convicted must pay for installation of ignition interlock systems in their vehicles and pay monthly fees for the system. They also have to pay a fee to the Virginia Alcohol Safety Program.
Underwood, a Democrat, is on the ballot for re-election Nov. 5 but faces no challenger. He earns $157,308 a year.
He retained Tommy Torment, Republican majority leader of the Virginia Senate, as his defense attorney. Through a spokesman, Torment declined to comment on Underwood’s case.
Torment has recent experience in attacking police work in a DUI case.
Earlier this year, he represented a Chesapeake sheriff’s deputy who was acquitted of DUI in Virginia Beach. Kenneth W. Stole Jr., the son of Beach Sheriff Ken Stole, was acquitted April 30 of DUI but convicted of misdemeanor hit-and-run and ordered to pay a $250 fine.
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