3 Steps to Assessing Your DUI Case

DUI Attorney in Hampton Virginia

A DUI Attorney at Montgomery, Kelley, & Dennett in Hampton Virginia will handle your DUI charge with care. Although every case is different, most of them require a 3 step analysis:

  1. The Stop
  2. The Arrest
  3. The Blood Alcohol Content, or BAC


The first step that any good DUI attorney should ask is, what is it that led to the client’s encounter with the police? Unfortunately, sometimes the reason is that the officer has been called to the scene of a motor vehicle accident. However, in the majority of cases, the police officer has initiated a traffic stop. Therefore, it is very important to determine why the officer stopped the vehicle. A police officer is not allowed to randomly stop a motorist. The United States Supreme Court has ruled that an officer must have “reasonable suspicion” of a criminal or traffic offense to stop the vehicle. This does not mean that the officer knew for sure that an offense had been committed. Nor does it mean that the offense suspected be serious – many DUI arrest initially start because an officer observes a simple equipment violation such as a defective tail light. However, the officer must be able to articulate a legal reason as to why he stopped the car. Furthermore, the reason for the stop can be very important in evaluating the next issue.


A police officer must have “probable cause” to arrest someone for driving under the influence of alcohol. This means he must be able to articulate sufficient facts to convince a judge that it was more likely than not that the individual was under the influence of alcohol at the time of arrest. This is a critical step in conducting any DUI arrest and one that Pat Kelley has successfully argued many times on behalf of his clients. If the Judge rules that probable cause did not exist for the arrest, then the charge is dismissed.

There are numerous factors that must be considered in making a probable cause determination. As stated above, a person’s driving is very important – a motorist stopped for a detective taillight is much less likely to be intoxicated than one who is stopped for weaving down the road and crossing the lane markings on the highway. Additionally, many DUI arrests will be based on individuals performance on what are known as Field Sobriety Tests (FST). The prosecution will try and argue that because a person cannot satisfactorily stand on one leg or touch their fingertip to their nose that the person must be under the influence of alcohol. This is not necessarily so – many other factors may be present to explain the inability to do the FST’s properly, such as nervousness, age or physical problems. Finally, there are many things that the person arrested did right that the prosecution will not point out to the judge, such as no problem pulling over once the officer turns on his emergency lights, no problem producing their license and registration, no problem exiting the vehicle when asked to do so, which are indicative of a person who is not under the influence of alcohol. However, all these factors must be brought to the attention of the judge for a fair determination of “probable cause” to arrest.


The final issue that must be evaluated is, assuming a person has been validly arrested, what is the result of the breath or blood test administered to determine the Blood Alcohol Content of the person’s blood. The Virginia Implied Consent Statute requires that a person validly arrested for DUI submit to a breath test (or blood test if the breath test is not available). If the result of the test is .08 or above, there is a legal “inference” that the person is under the influence of alcohol. Furthermore, if the result is .15 or above, there are further significant consequences such as mandatory jail sentence. Therefore, it is imperative that an attorney thoroughly investigate the circumstances surrounding how the test was administrated. It is also important to understand what is known as the “relation back” defense. The test measures a person’s BAC at the time the test is administered. This could be significantly different from the BAC at the time the person was operating the vehicle. It is also important that an attorney obtain the maintenance records for the Intoxilyzer EC/IR II to determine if the machine has been calibrated and maintained properly.

Montgomery Kelley & Dennett are here to help!

Are you in need of assistance in your DUI case and live in Hampton, Virginia? At Montgomery, Kelley & Dennett we have decades of combined legal experience and will thoughtfully help you plan your estate.