DWI cues related to problems in maintaining proper lane position include:
• Weaving
• Weaving across lane lines
• Straddling a lane line
• Swerving
• Turning with a wide radius
• Drifting
• Almost striking a vehicle or other object
• Stopping too far from a curb or at an inappropriate angle
• Stopping too short or beyond a limit line
• Jerky or abrupt stops

DWI cues related to speed and braking problems include:
• Stopping problems (too far, too short, or too jerky)
• Accelerating or decelerating for no apparent reason
• Varying speed
• Slow speed (10+ mph under the limit)

DWI cues related to vigilance problems include:
• Driving in opposing lanes or wrong way on one-way
• Slow response to traffic signals
• Slow or failure to respond to officer’s signals
• Stopping in the lane for no apparent reason
• Driving without headlights at night
• Failure to signal or signal inconsistent with the action

DWI cues related to judgment problems include:
• Following too closely
• Improper or unsafe lane change
• Illegal or improper turn (too fast, jerky, sharp, etc.)
• Driving on other than the designated roadway
• Stopping inappropriately in response to an officer
• Inappropriate or unusual behavior (throwing, arguing, etc.)
• Appearing to be impaired

• A difficulty with motor vehicle controls
• Difficulty exiting the vehicle
• Fumbling with driver’s license or registration
• Repeating questions or comments
• Swaying, unsteady, or balance problems
• Leaning on the vehicle or other objects
• Slurred speech
• Slow to respond to officer or officer must repeat
• Providing incorrect information, changes answers
• An odor of alcoholic beverage from the driver

Officers generally do not have enough evidence to arrest you for a DUI while you are inside of your vehicle. As such, they ask you to step out of your vehicle and request for you to perform field sobriety tests. These tests are voluntary, not required; but most clients perform the tests anyway because everybody tries to be as cooperative as possible. (The problem here is that by performing field sobriety tests, you are providing the officer with evidence that he can use against you in court. Had you not performed the tests, the officer would not have had this evidence to use against you in court, and may not have had probable cause to arrest you for a DWI.)

Generally, officers in Northern Virginia implement the following tests while investigating a subject for drunk driving, in addition to asking you to count backward, perform the alphabet without singing, and performing the finger touch test.

HGN Eye Test

“Horizontal Gaze Nystagmus” (“HGN”) is an involuntary jerking of the eye that occurs naturally as the eyes gaze to the side. In the HGN test, the officer observes the eyes of a suspect as the suspect follows a slowly moving object such as a pen or small flashlight, horizontally with his or her eyes. The examiner looks for three indicators of impairment in each eye: if the eye cannot follow a moving object smoothly, if jerking is distinct when the eye is at maximum deviation, and if the angle of onset of jerking is within 45 degrees of center. If, between the two eyes, four or more clues appear, the officers are taught that the suspect likely has a BAC of 0.08 or greater. However, this type of HGN result may also indicate the consumption of seizure medications, phencyclidine, a variety of inhalants, barbiturates, and other depressants.

Walk and Turn

The Walk-and-Turn test and One-Leg Stand test are “divided attention” tests that, according to the government, are easily performed by most unimpaired people. They require a suspect to listen to and follow instructions while performing simple physical movements. Impaired persons have difficulty with tasks requiring their attention to be divided between simple mental and physical exercises. (Personally, I have difficulty performing these tests while sober and while knowing all of the instructions after years of repetitive training.)

In the Walk-and-Turn test, the subject is directed to take nine steps, heel-to-toe, along a straight line. After taking the steps, the suspect must turn on one foot and return in the same manner in the opposite direction. The examiner looks for 8 indicators of impairment: if the suspect cannot keep balance while listening to the instructions, begins before the instructions are finished, stops while walking to regain balance, does not touch heel-to-toe, steps off the line, uses arms to balance, makes an improper turn, or takes an incorrect number of steps.

One Leg Stand

In the One-Leg Stand test, the suspect is instructed to stand with one foot approximately six inches off the ground and count aloud until told to put the foot down. The officer times the subject for 30 seconds. The officer looks for four indicators of impairment, including swaying while balancing, using arms to balance, hopping to maintain balance, and putting the foot down.

Virginia DUI / DWI arrests are followed by a demand by police officers for you to submit to breath testing to determine the level of alcohol in your system. After all, a concentration of .08 or higher is automatically a violation of the law and would make their case much easier for them to make by having the numeric evidence against you. If you refuse, officers will threaten to charge you for the refusal and to get a warrant for your blood.

Either your overt consent, or a warrant, is required for testing of your blood after a DUI arrest, or, alternatively, the officer must show exigent circumstances required a warrantless blood draw.

The Virginia DMV has a helpful DUI Guide on DUI law and penalties, and related licensure suspension issues when you fail to blow after a valid DWI arrest.

Virginia law has something known as implied consent driving law. This means that you consent to your blood or breath being tested if you are ever arrested for a DUI in Virginia. Virginia punishes refusals to take the tests under Virginia VA Code Section 18.2-268.3 as “unreasonable refusal” to have samples of his blood or breath taken for chemical tests to determine the alcohol or drug content of your blood after a drunk driving arrest as required by Virginia VA Code Section 18.2-268.2. The term “unreasonable” here is really insignificant since almost all refusals are deemed unreasonable.

The implied consent law of post-arrest testing to determine drug or alcohol content of blood is codified in Virginia VA Code Section 18.2-268.2. This law imposes on all drivers passing through Virginia the burden of having to submit to blood or breath analysis upon arrest for DUI, as long as the blood or breath test is offered within 3 hours of the arrest for the drunk driving offense. This consent law is considered a condition of operating your vehicle in Virginia. However, new case law from the Supreme Court of the United States has limited Virginia’s ability to extract blood without a warrant.

Your first refusal crime is considered a civil violation, and not a criminal one under Virginia VA Code 18.2-268.3. However, the penalty is steep. The refusal charge on its own carries a 1-year driver’s license suspension. If, however, you have had a DUI conviction or another refusal conviction in the 10 years prior to your refusal, then the refusal is a crime – a Class 2 misdemeanor, punished by up to 6 months in jail and a $1,000.00 fine. If you had 2 previous convictions for either DUI or refusal, then the refusal will be punished as a Class 1 misdemeanor – with up to 1 year in jail and a $2,500.00 fine. New Supreme Court case law suggests Virginia’s criminalization of refusal for subsequent violations is invalid.

Virginia Penalties for Refusal to Submit to Breath or Blood Testing