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The DWI and Refusal Dilemma in Fairfax County, Virginia

Since graduating from George Mason University School of Law in 1988, I have had over 20 years of trial experience, defending citizens accused of a wide variety of misdemeanor and felony offenses in Northern Virginia.   Since 1999, my practice has been almost exclusively focused on the Fairfax County Courts, allowing me to gain an increasing familiarity with the Courts, Prosecutors and Judges here in Fairfax County, Virginia.  

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11/27/2009
Paul Liam McGlone
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I have developed the following information to describe the situation presented by a combination charge of DUI/DWI and "Refusal to take Breath or Blood Test" in Fairfax County, Viriginia: 



The DWI and Refusal Dilemma in Fairfax County, Virginia
 
Every redneck bartender in the Commonwealth will tell you the same advice about DWI DUI and Refusal:  Just Refuse Everything!  
 
My advice is "don't get your legal advice from your bartender".   

Refusal to take a Breath or Blood Test  is a separate Charge that will be brought, in addition to DWI/DUI.   This may be a civil charge, or it may be brought as a Criminal charge if the client has any prior record of DUI or Refusal. 

First, I try to educate clients that there is a single penalty for a first-offense refusal.   The only penalty is a 1-year loss of license.   No fines.   No jail time.   No ASAP classes.    Just loss of license, and NO RESTRICTED LICENSE to drive to work or anywhere else. 
 
More on the topic of educating my clients:   We are not required to perform field sobriety tests on the side of the road, so the client does have the option of "politely declining" the tests.   I don't call it a "refusal" to take the tests, because they are not required.   We don't "refuse them" we "decline" their offer to give the tests.   Without any Field Sobriety Tests, the officer has to make his arrest decision based on other observations, and sometimes that will not hold up in Court.   If the client was just stopped for speeding, for example, and no other bad driving, then the officer may have little more than the "strong odor of alcohol"  (in quotes because it is used in every case).  
 
More about refusal:
 
If it is a second offense refusal, including a first-time refusal by somebody who already has a prior DWI, then it is a criminal offense, and it will carry fines and jail time. 
 
So, although a refusal may help to defend the DWI case, many clients can't afford to take the refusal.   If the client needs to drive to work, they may be forced to negotiate a guilty plea to the DWI charge so that they will dismiss the refusal.   So, we are often forced to plead guilty even though we might have a strong case for defense.   The worst situation is where the client might have been under the legal limit based on what they drank, but we don't have a test to prove it.   YES, the defendant might actually benefit from a breath test if it is a low number. 
 
If the client doesn't live in Virginia, then a Virginia Court will not suspend their Maryland license.   Our Court can only suspend the "right to drive in Virginia", so the refusal won't hurt as much.   
 
So, for Virginia drivers with a charge of DWI and Refusal pending, the dilemma is this:   Defend the DWI and risk a one-year suspension for the refusal, or Plead to the DWI in exchange for dismissal of the refusal. 
 
In some cases, they can still prove DWI even if they don't have a breath test.   The Court will hear all of the other evidence, including driving behavior, appearance, speech, field sobriety tests and admissions by the client. 


Category: DWI w/REFUSAL

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Paul Liam McGlone
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DWI and Criminal Defense Attorney and Founder of McGlone Law Firm

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