DUI/ Traffic

Every year there are literally thousands of people arrested for Driving Under the Influence of Alcohol in the Greater Williamsburg area between Hampton and James City County / New Kent. Quite often these individuals are otherwise fine, upstanding members of the community, who have never been in trouble in their life. Furthermore, the Commonwealth of Virginia has one of the toughest DUI laws in the United States. Mandatory jail sentences, license suspensions, and ignition interlock systems are just some of the possible consequences of a DUI conviction. Therefore, it is imperative that one arrested for DUIretain an experienced, aggressive attorney, one who understands the ins and outs of the potential legal and technical defenses that may be available.

Pat Kelley has been trying DUI cases since he joined the Williamsburg/James City County Commonwealth’s Attorney office in 1989. He understands that for many of his clients, facing a DUI charge is the most significant legal problem that the client has ever had to deal with. His experience as a prosecutor and as a defense attorney allows him to objectively analyze the facts in a particular case and determine the best course of action to take in representing his client.

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 clients 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 has been committed. Nor does it mean that the offense suspected be serious – many DUI arrests 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 persons 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 in order 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 administrated 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 persons 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.

There are a multitude of other issues that can arise when one is arrested for a DUI in Williamsburg or the surrounding cities. This is a very complicated area of the law and it is simply imperative that an aggressive, effective, and thorough attorney be retained.

If you or a loved one has been arrested for DUI, contact Pat Kelley.