When investigating a
DUI and performing an arrest, law enforcement is obligated to obey rules and
follow procedures that are designed to protect your rights, provide transparency
and fairness in police work, and ensure the evidence they collect is unbiased
However, police frequently break these rules—typically by mistake.
When they commit an error, the specific evidence they collected by ignoring
protocols cannot be used in your case. When police make a mistake in your
criminal defense attorney can file a “motion to suppress” with the judge. If
the judge grants this motion, the evidence will be “suppressed”
or taken out of the case, which means the prosecutor cannot use it against
you and the jury will never hear it. In some cases, the evidence that
is suppressed is so important that the prosecution has no case without
it, so you can essentially win your case without ever going to trial.
The following are the most common mistakes made by police in a Virginia DUI case:
No reasonable suspicion – In order for law enforcement to pull you over, they need to have
a valid reason in the first place. Typically, it is in the form of a traffic
violation, such as speeding, changing lanes without signaling, or noticing
a broken taillight. If the police do not have reasonable suspicion, then
all evidence they collected is invalid.
No probable cause – Before arresting someone, police must have probable cause, which
means that they have enough evidence of DUI that a reasonable person would
think you’re breaking the law. If law enforcement did not have probable
cause for the arrest, any evidence collected post-arrest may be inadmissible.
Cases where the judge rules that there is no probable cause are typically
Failure to properly administer a breath test – After an arrest, suspects are often required to take a breath
test. Refusal of such test is considered illegal and subject to additional
penalties. However, law enforcement must observe the suspect for 15 continuous
minutes before administering the test to ensure the suspect doesn’t
burp, vomit, or consume anything. Furthermore, there are strict rules
regarding device calibrations. Any mistake in administering the test or
calibrating the device means the test results are inadmissible in the
Failure to properly administer a field sobriety test – Prior to arrest, police may subject DUI suspects to field sobriety
tests (FSTs) to evaluate whether they are intoxicated before choosing
to arrest them. However, they must administer every FST in accordance
with rules established by the National Highway Traffic Safety Administration,
such as explaining each test, performing the test on level ground, and
accounting for other factors that would affect the results such as age,
physical fitness, or fatigue. If police fail to administer these tests
in a proper manner, the FST evidence will be inadmissible in court.
The Law Offices of Daniel J. Miller, we are committed to examining each stage of the police investigation,
from their report on the initial stop and arrest to the evidence they
submitted. If there are any discrepancies, our Virginia Beach criminal
defense attorney can file a motion to suppress in order to have the evidence
thrown out, and your case dismissed.
If you have been arrested for DUI in Virginia,
contact us and request a
free consultation today.