Frequently Asked Questions

Drunk Driving in Virginia

Q. What should I do if I’m stopped by a police officer for drunk driving?

A. Show the officer your license and registration. If the officer suspects you of driving under the influence, he will begin to ask you a number of questions designed to confirm his suspicions. In this situation, you need to be very respectful of the officer’s authority, but you must also be aware of your rights.

Q. What are my rights?

A. First of all, you are not legally obligated to answer any of the officer’s questions other than to give him your name, license and registration. That’s it. If you fear that you may be arrested for drunk driving, you should not make any other statements. The best way to invoke this right is to politely but firmly tell the officer that you wish to speak to an attorney before answering any other questions. You should repeat this as often as necessary in response to any question. You are fully within your rights to do so.

At any point during your encounter with the police, you may demand to know whether or not you are free to leave. If the police officer says yes, then leave. If the police officer says no, then the next words out of your mouth should be "I want to speak to an attorney." Once you invoke your right to counsel, the officer cannot legally question you further.

Q. Do I have to perform the field sobriety tests if the officer tells me to?

A. No. The most common field sobriety tests are the "walk and turn", the "one legged stand" and the "horizontal gaze nystagmus" tests. These tests are designed to give the officer probable cause to arrest you, and may be introduced as evidence of your intoxication in court. Many people have difficulty with these tests even when sober, often due to adverse weather and lighting conditions at the roadside, or even simply out of sheer nervousness.

You are under no legal obligation to perform the field sobriety tests. You may refuse to do them.

Q. Won’t I anger the police officer if I refuse to answer questions or perform the field sobriety tests?

A. Perhaps. But let’s get something straight. Too many people operate under the incorrect assumption that if they’re "nice" to the officer, then the officer will be "nice" to them, i.e., not arrest them. This is false. If you have been polite, cooperative and compliant with the police officer, he will nonetheless arrest you if he thinks he has probable cause to do so. It’s his job. Police officers do not routinely ignore their job responsibilities simply because the suspect is polite and cooperative.

The key here is to strike the appropriate balance between respect for the officer’s authority and respect for your own rights as a citizen in a democratic society.

You should be polite but firm in your invocation of your rights. Do not raise your voice or shout. One way to invoke your rights is simply to repeat the phrase "I want a lawyer" over and over like a mantra in response to questions or commands.

Do not accept legal advice from the officer. If he tells you that you must do the sobriety test or he’ll arrest you for "refusal", he is wrong. Keep a copy of this brochure in your car and show it to him. I’ll be happy to answer any of his questions if he should like to call and discuss the matter.

Q. What tests am I required to submit to?

A. There is only one test that you must legally submit to. That is the breath alcohol sensor at the police station. This is a large machine and should not be confused with the roadside hand-held device, which you are not required to submit to.

Before you are arrested, the officer may ask you to blow into a hand-held device, known as an "Alco-Sensor". You are not required to do so and may legally refuse.

If you are arrested, you will be asked to blow into a much larger device known as the "Intoxilyzer 5000". Despite its notorious lack of reliability and accuracy, the Virginia General Assembly, under pressure from various "get tough on drunk driving" groups, has passed a statute requiring anyone driving in Virginia to submit to this test after a proper arrest for drunk driving. The penalty for refusal to do so is substantially the same as the penalty for first-offense drunk driving.

Q. Do I need a lawyer if I’m charged with drunk driving?

A. Anyone charged with drunk driving should consult with an attorney. The need for legal services in these cases should be evaluated by an attorney with full knowledge of the facts.

Feel free to contact me at inquiry@brianjgrossman.com.