We at Montagna & Montagna, P.C. pride ourselves in our intense preparation and zealous representation of clients. Whether you are a member of the U.S. military or a civilian, our attorneys have your best interests in mind. Some attorneys plead all of their clients guilty; however, at Montagna & Montagna. P.C., our attorneys file pre trial motions and are prepared to defend our clients through every step of the case.
Our firm represents individuals in every type of traffic offense. Some of our frequent cases involve DUI, reckless driving, hit and run, attempt to elude, driving on a suspended license, driving after being declared a habitual offender, refusal to submit to Breathalyzer, DUI related manslaughter and speeding.
- What are the intoxicated related offenses?
- What are field sobriety tests?
- The police officer never told me of my rights, is that Ok?
- I was charged with driving on a suspended license, what do I do?
- What is implied consent?
Intoxicated Related Offenses
A. Driving While intoxicated
1. Section 18.2-266
2. Five ways to convict:
a. While a person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided under Article 2.
b. While under the influence of alcohol
c. While under the influence of any narcotic or self administered intoxicant or drug to which it impairs the person's ability to drive safely.
d. While a person is under the combined influence of alcohol and drugs that impairs his ability to operate a motor vehicle.
e. While such a person has a blood concentration of any of the following substances at a level that is equal to or greater than 0.02 milligrams of cocaine per liter of blood, 0.1 milligrams of methamphetamine per liter of blood, 0.01 milligrams of phencyclidine per liter of blood, or 0.1 milligrams of 3,4 methylenedioxymethamphetamine per liter of blood.
3. First Offense
a. A class I misdemeanor, up to 12 months in jail and a $2500.00 fine, with a mandatory minimum fine of $250.00. If the defendant's BAC is at least .15 but less than .20, the defendant must serve a mandatory minimum sentence of five days. If the BAC is .20 or higher, the defendant must serve a mandatory minimum 10 day jail sentence.
b. Defendant must complete Virginia Alcohol Safety Action Program (ASAP), if ordered.
c. Suspension of driver's license for 12 months, with court discretion for a restricted driver's license.
d. If the BAC was .15 or more, installation of an ignition interlock system is mandated for a minimum of six months on any vehicle registered to
or owned by the defendant.
4. Second Offense:
a. Within 5 years: a Class I misdemeanor and a mandatory minimum fine of $500 and a jail sentence not less than one month, with a mandatory minimum jail sentence of 20 days; if the BAC is greater than .15 but less than .20, an additional 10 days is added to the mandatory minimum sentence; if the BAC is .20 or greater, the additional mandatory jail sentence is 20 days.
b. Within 5 to 10 years: a Class I misdemeanor and a mandatory minimum fine of $500.00 and a jail sentence of not less than one month with a mandatory minimum jail sentence of 10 days; if the BAC is greater than .15 but less than .20, the defendant must serve an additional mandatory jail sentence of 10 days and the total mandatory fine is $1000.00; if the BAC is .20 or greater, the defendant must serve an additional mandatory jail sentence of 20 days and the total mandatory fine is $1000.00.
c. Driver's license suspended for three years.
d. Restricted license may be obtained after four months, if second offense occurred between 5 and 10 years ago.
e. Restricted license may be obtained after 1 year if second offense is within 5 years.
f. All restricted licenses require ignition interlock system for a period of time not to exceed the period of license suspension and restriction, but not less than 6 months.
5. Third Offense within 10 years:
a. A Class VI felony, up to 5 years in the penitentiary and a $2,500.00 fine
b. If third offense is within 5 years, mandatory minimum $1,000.00 fine and mandatory minimum jail sentence of 6 months.
c. Mandatory minimum jail sentence of 90 days, if not within 5 years.
d. Indefinite license suspension.
6. Fourth or Subsequent Offense within 10 years:
a. Class VI felony, mandatory minimum sentence of 1 year and $1,000.00 fine.
What are Field Sobriety tests?
A. Used to assist officers in evaluating whether an individuals impaired.
B. Most common field tests: Horizontal Gaze Nystagmus (HGN), nose touch, alphabet, one leg stand, walk and turn, and preliminary breath test (PBT).
1. HGN: measures involuntary jerking of eyes.
2. Nose touch: touching nose with finger.
3. Alphabet: reciting alphabet from A to Z or from any letter to another, without singing.
4. Standing on one foot with other foot raised six inches off the ground for 30 seconds.
5. Walk and turn: walking nine steps, up and back, on a real or imaginary line.
6. PBT: not admissible at trial, but may be offered at suppression hearings to justify. probable cause; a small hand held breath testing device.
The police officer never told me of my rights, is that Ok?
A. A police officer is not required to mirandize everyone. An individual must only be advised of his rights if he is in custody. Generally, a police officer does not need to advise an individual of his rights it' he is stopped only for an investigative detention. However, the police officer must have stopped the individual based on a reasonable, articulable suspicion.
I was charged with driving on a suspended license. What can I do?
A. Obtain a copy of DMV record, pay off all fines and reinstatement fees, and have valid license with you in court.
B. Talk with an attorney to determine if officer had reasonable basis to stop me.
What is implied consent?
A. See Section 18.2-268.2
B. Basically means that if you drive a motor vehicle on a highway, as defined in the code, that you agree to submit to the breathalyzer or blood test to determine the presence of alcohol or drugs.
§ 18.2-266. Driving motor vehicle, engine, etc., while intoxicated, etc.
It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article, (ii) while such person is under the influence of alcohol, (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, (iv) while such person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, or (v) while such person has a blood concentration of any of the following substances at a level that is equal to or greater than: (a) 0.02 milligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c) 0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3,4-methylenedloxymethamphetamine per liter of blood, A charge alleging a violation of this section shall support a conviction under clauses (i), (ii), (iii), (iv), or (v).
For the purposes of this article, the term "motor vehicle" includes mopeds, while operated on the public highways of this Commonwealth.
§ 18.2-268.2. Implied consent to post-arrest testing to determine drug or alcohol content of blood
A, Any person, whether licensed by Virginia or not, who operates a motor vehicle upon a highway, as defined in 46.2-100, in the Commonwealth shall be deemed thereby, as a condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, if he is arrested for violation of §l8.2-266, 18.2-266.1, or subsection B of §18.2-272 or of a similar ordinance within three hours of the alleged offense.
B. Any person so arrested for a violation of clause (i) or (ii) of §18.2- 266 or both, §48.2-266.1 or subsection B of §18.2-272 or of similar ordinance shall submit to a breath test. If the breath test is unavailable or the person is physically unable to submit to the breath test, a blood test shall be given. The accused shall, prior to administration of the test, be advised by the person administering the test that he has the right to observe the process of analysis and to see the blood-alcohol reading on the equipment used to perform the breath test. If the equipment automatically produces a written printout of the breath test result, the printout, or a copy, shall be given to the accused.
C. A person, after having been arrested for a violation of clause (iii), (iv), or (v) of §18.2-266 or § 18.2-266.1 or subsection B of 18.2-272 or of a similar ordinance, may be required to submit to a blood test to determine the drug or both drug and alcohol content of his blood. When a person, after having been arrested for a violation of §18.2-266(i) or (ii) or both, submits to a breath test in accordance with subsection B or refuses to take or is incapable of taking such a breath test, he may be required to submit to tests to determine the drug or both drug and alcohol content of his blood if the law-enforcement officer has reasonable cause to believe the person was driving under the influence of any drug or combination of drugs, or the combined influence of alcohol and drugs.