The Court will likely be notified if you fail an interlock test. Your Virginia Alcohol Safety Action Program representative may choose to discuss this matter with you prior to notifying the Court. You should expect the Court to issue a warrant / contempt citation for the apparent violation. You will be required to appear in Court, acknowledge or dispute the allegation, and explain to the Court why you should not be held in contempt. If you are found to be in contempt for violating the order of the Court, you could be fined and/or imprisoned.
In addition to what was said by the other attorney, what happens if you violate the Interlock device faces two legal issues:
1) being convicted of DUI while on a restricted license. If you have a restricted license the legal limit is .02 not .08. Ignition interlocks measure whether someone is .02 or above. See Va. Code 18.2-272(B).
2) The other issue is violation of the terms of probation. When a person is convicted of their first DUI they usually have a significant amount of suspended jail time. If the driver fails to register and comply with VASAP's regulations then the court may order the driver to serve the suspended jail time. The log of the ignition interlock system will be sent to VASAP and they may decide to report that to the court as a failure to comply in which case you will have a hearing to determine whether or not to make the driver serve the suspended time in jail.
If a driver is found guilty of violating the terms of their probation they will not only face their suspended jail time but will also lose their restricted license.
Ignition Interlock systems are far from reliable and are susceptible to a number of errors. I recently published a book on this subject and there are numerous potential defenses available to you; however, you need to consult with an attorney with plenty of DUI experience soon. I give free consultations and would be happy to discuss your case.
The best answer is to discuss this with your lawyer, if you had one, on the underlying DUI charge. He/she will know the terms of your suspended sentence and whether it included abstinence from alcohol. If it did, you can most likely expect to have the ASAP program file a notice of violation of ASAP with the court. Pursuant to Code Section 18.2-270.1 Ignition interlock systems; penalty
"Ignition interlock system" means a device that (i) connects a motor vehicle ignition system to an analyzer that measures a driver's blood alcohol content; (ii) prevents a motor vehicle ignition from starting if a driver's blood alcohol content exceeds 0.02 percent; and (iii) is equipped with the ability to perform a rolling retest and to electronically log the blood alcohol content during ignition, attempted ignition and rolling retest.
"Rolling retest" means a test of the vehicle operator's blood alcohol content required at random intervals during operation of the vehicle, which triggers the sounding of the horn and flashing of lights if (i) the test indicates that the operator has a blood alcohol content which exceeds 0.02 percent or (ii) the operator fails to take the test.
B. In addition to any penalty provided by law for a conviction under Sec. 18.2-51.4 or 18.2-266 or a substantially similar ordinance of any county, city or town, any court of proper jurisdiction (i) may, for a first offense, (ii) shall, for a second or subsequent offense and, (iii) shall, for an offense where an offender's blood alcohol content equals or exceeds 0.15 percent, as a condition of a restricted license or as a condition of license restoration under subsection C of Sec. 18.2-271.1 or 46.2-391, prohibit an offender from operating a motor vehicle that is not equipped with a functioning, certified ignition interlock system for any period of time not to exceed the period of license suspension and restriction, not less than six consecutive months without alcohol-related violations of the interlock requirements, and shall require that such a system be installed on each motor vehicle, as defined in Sec. 46.2-100, owned by or registered to the offender, in whole or in part, for such period of time. Such condition shall be in addition to any purposes for which a restricted license may be issued pursuant to Sec. 18.2-271.1. .. The offender shall be enrolled in and supervised by an alcohol safety action program pursuant to Sec. 18.2-271.1 and to conditions established by regulation under Sec. 18.2-270.2 by the Commission during the period for which the court has ordered installation of the ignition interlock system. The offender shall be further required to provide to such program, at least quarterly during the period of court ordered ignition interlock installation, a printout from such electronic log indicating the offender's blood alcohol content during such ignitions, attempted ignitions, and rolling retests, and showing attempts to circumvent or tamper with the equipment.
If by "violation" you indicate that you blew and the equipment read a BAC of .02 or greater and did not permit you to start the vehicle, then the court can summons you to court to "show cause" why you should not have the suspended jail sentence and/or fine imposed or your restricted operator's license revoked.
Biberaj & Snow, PC
7 East Market Street
Leesburg, Virginia 20176
(703) 779-1025 fax
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