Former Fairfax Prosecutor Explains What to Expect If You Are Charged with First Offense DWI And What Will Happen When You Go To Court in Fairfax, Virginia


The process for handling DWIs in Fairfax County is different than most people expect.  The biggest surprise is the sheer number of cases that go through the system.  Fairfax County Police arrest more than 2500 drivers for drunk driving in a year.  That means that there may be upwards of 50 DWI cases in court on any given day.  With that sort of volume, the Prosecutor’s office simply isn’t able to review many cases before court.  Unless your case involves a blood test or some other unique circumstance it is likely that nobody from that office will know anything about your case before court.

Instead the way the system works is that the Prosecutor talks to your officer and all the other officers about your case, the day of court.  They meet in a little room right outside the courtroom and discuss all of the cases in the room that day.  Then at about 1015 or 1030, the Prosecutor will begin discussing cases with lawyers.

During this session, your lawyer will receive what is called discovery.  This process involves the Prosecutor telling the attorney what evidence and facts the government will use to try to convince the judge that the driver is guilty of the crime they are charged with.  During this meeting your lawyer will also tell the Prosecutor about any facts that would help their client’s case.  After that discussion, the two lawyers negotiate a plea agreement.

A plea agreement states that if the client agrees to plead guilty the Government will recommend some punishment to the judge.  In Fairfax absent extraordinary circumstances the judge will accept the plea recommendation.  A defense attorney cannot force a Prosecutor to extend a specific plea agreement, the terms of the agreement are entirely up to the Prosecutor.  The decision the client and attorney need to make is whether to accept or reject that agreement.  The decision on whether to accept or reject the offer will depend on the offer, the facts of the case and the judge (some judges will tend to agree with defense arguments others are friendlier to the government).  If we agree that the offer is a good deal, we fill out some paperwork, give it to the judge and resolve the case that way.  If we don’t agree to take the offer we would either go to trial that day or continue it for another day.

If we go to trial that day, we would proceed similar to trials you see on television.  The officer would take the stand and answer questions asked by both attorneys.  We would be able to present any evidence that would refute the accusation.  At the end the judge would determine if you were guilty or not guilty.  If you are guilty the judge would also impose some punishment, the punishment would likely start that day although everything is negotiable.

It is also expected that many times, attorneys will need more time to prepare for their DWI defense.  In that case, after getting and rejecting the offer we would then ask the judge to continue the case to some date in the future.  In Fairfax officers have set dates when they are scheduled to be in court.  The case would have to be set on one of those preset dates.  Once a case is continued the previously negotiated deal is off the table.  When you come back, the process will start all over again, with a new plea offer and a new decision to be made.  Since there are so many Prosecutors and Judges in Fairfax it is likely that the case will be in front of a new judge and new Prosecutor on the second date.  That means that the offer may be better or it may be worse.

The decision on whether to accept or reject an offer will need to be made in a short period of time, maybe as little as 30 or 40 minutes.  That means that you will typically not have time to call your job or family to see how the plea will impact other aspects of your life.  For that reason, it is essential to making a good decision that you consider all possible outcomes and determine how they will impact your life.  It is also very important that you discuss all possible outcomes and consequences with your lawyer before court to ensure that you are in a good place to make a decision in those few minutes.  I often tell clients that I would rather spend hours discussing their case before court when I can do something to influence the outcome than minutes after when I cannot.

For those reasons, make sure that you discuss every aspect of the case with your attorney well in advance of the court date and make sure you understand what a typical plea offer will involve.


Unless your DWI involves a high BAC or you have a prior DWI you can expect the Prosecutor’s offer will be a standard one.  Under the terms of a standard DWI offer the punishment is:

  • 30 days of suspended jail time. That means that you will have 30 days of jail time hanging over your head should you get in legal trouble again over the next year.  Also you could potentially serve some of that time if you fail to complete the ASAP classes.  Should you violate the good behavior requirement during that year you will have to appear in front of a judge again and explain why you shouldn’t have to serve some or all of the 30 day sentence.  If you are of good behavior during that year, you will never be required to go to jail.
  • 12 month loss of license. This is required by law and cannot be shortened.  During that time you will likely be allowed to get a restricted license.  A restricted license allows you to drive to work and to school, certain other prescribed places but it does not let you drive socially.
  • IGNITION INTERLOCK. Ignition interlock is the device that requires a user to blow into a machine before their car will start.  As of a few years ago, ignition interlock became required on all convictions.
  • ASAP – The Alcohol Safety Action Program or ASAP, is a series of alcohol awareness education classes. You must complete these classes to maintain your restricted license and to avoid serving the suspended jail time
  • Fine the fine imposed will usually be $250 or $300.

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