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Reasonable Suspicion and Probable Cause in Virginia DUI Cases

Offered by Welch & Wright, PLLC

Make sure you have a defense attorney who knows the system

Driving under the influence (DUI) in Virginia is a criminal charge with significant consequences, including fines, jail time, driver’s license suspension, and the requirement to complete a 10 session VASAP (Virginia Alcohol Safety Action Program) course. The stakes in a DUI investigation and arrest are quite high. The police are held to high legal standards when investigating and arresting drivers on suspicion of DUI.

You likely already know that in order to convict you of a crime, the prosecution needs to prove your guilt beyond a reasonable doubt. This is the highest standard of proof used anywhere in the legal system. However, there are lower, but still significant standards of proof that are applied at various stages of the DUI investigation and arrest. If your attorney can prove that these standards were not met, it may be possible to get evidence suppressed (meaning it cannot be used against you), or even get your charges dismissed entirely.

The two key legal standards we’ll explore here are reasonable suspicion and probable cause. Remember, this is general information, not legal advice. Only an attorney can tell you whether these legal standards were met in your specific situation – and what your recourse might be.

The “reasonable suspicion” standard to pull you over

In order to briefly detain someone – for instance, to pull you over in a brief traffic stop – the police need what’s called reasonable suspicion.

The reasonable suspicion standard essentially means that the police officer needs an actual, articulable reason to suspect that you have been or are about to be engaged in illegal activities (such as DUI or another traffic violation). Reasonable suspicion must be based on specific, articulable facts and rational inferences from those facts. It can’t be a mere “hunch.” It also needs to be particularized – which is to say that the police officer needs a specific reason to pull your car over, rather than simply suspecting that someone is violating the law.

Some examples of driving behaviors that might satisfy the reasonable suspicion standard include:

  • Drifting between lanes
  • Driving across the center line
  • Driving too fast or too slow
  • Coming close to hitting another car

Other types of driving behaviors, such as drifting within a lane, may not be enough to constitute reasonable suspicion. Again, it depends on the circumstances.

If the police didn’t have reasonable suspicion for the traffic stop, then any evidence they discovered during the traffic stop should be inadmissible in court. This typically means that your DUI charges will be dismissed because there is no evidence left for the prosecution to use. That said, reasonable suspicion is a lower standard than probable cause and it’s up to the judge to decide whether police had a reasonable suspicion to initiate a traffic stop in any case.

The “probable cause” standard for searches and arrests

Probable cause is a higher standard than reasonable suspicion. The definition of probable cause is somewhat subjective, but a simple way to look at it is whether there are grounds for a reasonable person to think that certain facts are probably true.

In a DUI investigation, the probable cause standard comes up in two contexts. First, the police need probable cause to search your vehicle without your consent. While they don’t need probable cause to simply recognize something that is in plain view, such as an alcoholic beverage visible in a cupholder, they do need probable cause to look under the seats, open the trunk, and so on. If the police didn’t have probable cause to search the vehicle, then your attorney can likely have evidence found during the unlawful search suppressed, which means it cannot be used against you at trial.

Second, the police need probable cause to arrest you for DUI. Specifically, they need probable cause to believe that you were driving a vehicle while impaired by alcohol or another substance. Some of the evidence police can use to establish probable cause for an arrest includes:

  • Driving behavior: Were you speeding, swerving, or disobeying traffic signs and signals? These behaviors can potentially help to establish probable cause. This evidence can be challenged for several reasons, such as if the police officer relied on a third party instead of directly witnessing them.
  • Driver’s demeanor: Slurred speech, bloodshot eyes, a nervous demeanor, and so on can all contribute to probable cause for a DUI arrest. So can the driver’s admissions such as “yes, I had a couple drinks.”
  • Physical evidence: If the police officer sees or smells evidence of drinking and driving in plain view, such as a visible container of alcohol or the smell of an alcoholic beverage on the driver’s breath, that can contribute to probable cause.
  • Field sobriety tests: Police officers can use the standardized field sobriety tests to establish probable cause: the walk-and-turn, one-leg stand, and horizontal gaze nystagmus (HGN). Although these tests are generally considered to be “reliable” indicators of impairment, they can still be challenged by an attorney under certain circumstances. Police may also use unstandardized tests that have not been lab-tested and can be challenged in court.
    • It’s important to remember that field sobriety tests are optional in Virginia, and refusing to perform the field sobriety test does not establish probable cause in itself. However, the police can take the refusal into consideration along with other circumstances to establish probable cause.
  • Preliminary breath test (PBT): Police can also perform a preliminary breath test using a small handheld device called an Alka-Sensor to determine the driver’s probable blood alcohol content (BAC) level. Like the field sobriety tests, the PBT is optional in Virginia. The PBT is not as accurate as the breathalyzer machine at the police station, but it is considered accurate enough to establish probable cause. While the law doesn’t explicitly specify a required BAC level on the PBT to qualify as probable cause, the presumptive level of intoxication in Virginia is .08, so this is essentially the de facto limit to establish probable cause. Note, results of the PBT cannot be used in court to establish guilt but can be used if the defense is challenging whether there was probable cause to make an arrest.

If the police didn’t have probable cause to arrest you – or, more to the point, if the prosecution cannot prove that the police had probable cause to arrest you – then your DUI charges can be dropped or dismissed. Still, decisions about whether there was probable cause to arrest you are up to the judge hearing your case. An attorney who is well-versed in Virginia law and police procedure can protect your rights in this situation.

An experienced DUI defense attorney can protect your rights

When police and prosecutors violate DUI defendants’ rights, they need to be held accountable in court. One of the reasons you need an experienced criminal defense attorney on your side is because a lawyer who knows the rules can review what happened and determine whether your rights were violated. If the police did not have reasonable suspicion for the traffic stop or probable cause for the arrest, the charges against you should be dropped or dismissed.

The only way to know whether you have a case on these grounds is to talk to an experienced DUI defense lawyer as soon as possible. If you’ve been arrested and charged with DUI in Virginia, talk to an experienced defense attorney in your area today.

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Founded by attorneys L. Calum Welch and Nick T. Wright, Welch & Wright, PLLC focuses on DUI, criminal defense and personal injury matters in the Hampton Roads region. We are trial...