DUI cases that involve an accident present special problems for prosecutors. Under the Virginia implied consent law, three requirements must be met before a driver has a duty to take a breath test and for the state to get the results of that test into evidence: (1) operation of a motor vehicle; (2) on a highway; and (3) the defendant is lawfully arrested within three hours of last operating the vehicle.
Proof of Operation, Time of Driving, Nothing to Drink Since Accident
The timing of the arrest comes up most often in single car accident cases. The reason is that by the time the officer arrives on scene, the driver is usually already outside of their vehicle and the vehicle is turned off. In other words, the officer does not observe the "operation" he is required to prove. Unless there is a witness or the driver admits when the accident occurred (i.e., when he last operated the vehicle), the state will be unable to prove that it complied with the three hour rule and the results of any breath test will be inadmissible.
Therefore, police officers in Virginia are trained to ask three questions of a driver involved in an accident: (1) Were you driving?; (2) When did the accident occur? and (3) Have you had anything to drink since the accident?
If the driver does not answer these questions or indicates that they drank after the accident, proving a DWI/DUI is very difficult for the state absent a witness or other evidence. In such cases, the Commonwealth may need to seek a continuance to attempt to bring a witness to court.
The prosecutor will certainly attempt to prove these items through circumstantial evidence, but such evidence must be vigorously challenged through cross-examination and argument.
Talk to a Fairfax DUI Accident Lawyer
If your DWI involves an accident, single vehicle or multiple vehicles, call 703-556-0004 or use the Contact Us page to set up a free consultation with a former prosecutor and Fairfax Virginia DWI DUI Accident Defense Lawyer.