DWI Laws in Virginia

DRINKING & DRIVING OFFENSES IN VIRGINIA

Driving While Intoxicated (DWI) & Driving Under the Influence (DUI)

DWI and DUI are often used interchangeably in Virginia because they are both charged under the same Code – the prosecutor can prosecute any of them without specifying. DUI-D (drugs) can also be prosecuted under § 18.2-266.

§18.2-266 No person can "drive or operate any motor vehicle" while (i) having a blood or breath alcohol content of 0.08 or above; (ii) while under the influence of alcohol (see definition below); (iii) under the influence of any drug that impairs or makes driving unsafe; (iv) while a person has either greater than or equal to any of the following:

• 0.02 milligrams of cocaine per liter of blood
• 0.1 milligrams of methamphetamine per liter of blood
• 0.01 milligrams of phencyclidine (PCP) per liter of blood
• 0.1 milligrams of 3,4-methylenedioxymethamphetamine (MDMA, Ecstacy) per liter of blood.

Definition of "Under the Influence of Alcohol":

A person is under the influence of alcohol if he has drunk enough alcoholic beverages so as to affect his manner, disposition, speech, muscular movement, general appearance or behavior as to be apparent to observation.

Underage "DUI"

§18.2-266.1 In addition to the above prohibited activities, no person under the age of 21 years, may operate a motor vehicle after illegally consuming alcohol. A person is violating this statute if they are younger than 21 years of age and have a breath or blood alcohol content of 0.02 or greater.

This is not a true DUI but carries many of the same consequences. It is sometimes called "Baby DUI" but is more accurately called Driving After Illegally Consuming Alcohol.

CONSEQUENCES OF DRIVING UNDER THE INFLUENCE

Immediate Administrative Suspension of Driver's License before trial

§ 46.2-391.2 mandates that you will immediately lose your license if you are arrested for DUI and (i) register a breath or blood alcohol content of 0.08 or higher, or (ii) in the case of a person under 21 years of age 0.02 or higher, or, (iii) refuses to submit to a chemical analysis of his breath or blood. The time of suspension is:

Suspension of his or her driver's license for seven days on a first alleged offense of violating §18.2-266 or §18.2-266.1, or

Suspension of his or her driver's license for sixty days or until the date of trial whichever comes first on a second alleged offense of violating §18.2-266 or §18.2-266.1 within a ten year time period, or

Suspension of his or her driver's licenseuntil the date of trial on a third or subsequent alleged offense of violating §18.2-266 or §18.2-266.1 within a ten year time period.

If the accused has no driver's license or has a driver's license from another state other than the Commonwealth of Virginia, his or her privilege to drive within the Commonwealth of Virginia will be suspended for the same time period as above.

A law enforcement official must serve notice of the suspension immediately, and will confiscate the driver's license if issued by the Commonwealth of Virginia. The accused can pick up their license from the Clerk of the Court after the suspension period has elapsed. (§46.2-391.2(a))

Appeals of Administrative Suspensions

Any person incurring a suspension of their driver's license or of their privilege to drive in the Commonwealth of Virginia pursuant to §46.2-391.2 may petition the court of appropriate jurisdiction to rescind the suspension. To be successful one needs to prove by a preponderance of the evidence that there was no probable cause for the accused to be charged. The Court shall rescind said suspension upon such a finding.

Any person incurring a suspension of greater than seven days pursuant to §46.2-391.2 may petition the court of appropriate jurisdiction to reduce the suspension period upon a preponderance of the evidence that there was no probable cause for the issuance of a second or subsequent DUI charge. If proven, the court shall reduce the length of suspension to an appropriate length.

PENALTIES FOR DRIVING UNDER THE INFLUENCE

§18.2-270(A) First DUI

A person charged with violating §18.2-266, first offense, shall be guilty of a Class 1 Misdemeanor and may be punished as follows:

Blood Alcohol Content below 0.15: Maximum punishment of one year in jail; maximum fine of $2,500, $250 of which is a mandatory minimum fine, suspension of the persons driver's license or privilege to drive in the Commonwealth of Virginia for a period of one year with restricted privileges granted,* and ignition interlock for at least six months.

Blood Alcohol Content between 0.15 and 0.20: Same punishment as above with a mandatory minimum active jail term of five days.

Blood Alcohol Content 0.20 or above: Same punishment as above with a mandatory minimum active jail term of ten days.

§18.2-270(B) Second DUI within 5 Years

A person charged with violating §18.2-266, Second Offense within a period of five years shall be guilty of a Class 1 Misdemeanor and may be punished as follows:

Blood Alcohol Content below 0.15: Maximum punishment of one year in jail, mandatory minimum jail sentence of 30 days, 20 of which must be served (ten may be suspended), maximum fine of $2,500, $500 of which is a mandatory minimum fine, and a suspension of the persons driver's license or privilege to drive in the Commonwealth of Virginia for a period of three years, the first year of which the defendant is ineligible for restricted privileges. A defendant will be required to have an ignition interlock device installed on their vehicle for a period of six months to three years as a condition of gaining restricted driving privileges.

Blood Alcohol Content between 0.15 and .020: Same punishment as above with an additional mandatory minimum jail term to be served of 10 days

Blood Alcohol Content above 0.20: Same punishment above with an additional mandatory minimum jail term to be served of 20 days.

§18.2-270(B) Second DUI within 10 years

A person charged with violating §18.2-266, Second Offense within a period of five to ten years shall be guilty of a Class 1 Misdemeanor and may be punished as follows, to-wit:

Blood Alcohol Content below 0.15: Maximum punishment of one year in jail, mandatory minimum jail sentence of 30 days, 10 of which must be served (20 may be suspended), maximum fine of $2,500, $500 of which is a mandatory minimum fine, and a suspension of the persons driver's license or privilege to drive in the Commonwealth of Virginia for a period of three years, the first of which the defendant is ineligible for restricted driving privileges*. A defendant will be required to have an ignition interlock device installed on their vehicle for a period of six months to three years as a condition of gaining restricted driving privileges.

Blood Alcohol Content between .015 and .020: Same punishment as above with an additional mandatory minimum jail term to be served of ten days.

Blood Alcohol Content above 0.20: Same punishment above with an additional mandatory minimum jail term to be served of 20 days.

§18.2-270(C) Third DUI within 5 Years

A person charged with violating §18.2-266, Third Offense within a period of five years shall be guilty of a Class 6 Felony and is facing one to five years in the State Penitentiary, or up to 12 months in a local jail, six months is a mandatory minimum term of incarceration which must be served; maximum fine of $2,500, $1,000 of which is a mandatory minimum fine; indefinite suspension of the persons driver's license or privilege to drive in the Commonwealth of Virginia. The defendant may petition the Court of appropriate jurisdiction for restricted driving privileges after three years* and full privileges after five years. Furthermore, the defendant's vehicle is subject to seizure by the Commonwealth.

§18.2-270(C) Third DUI within 10 Years

A person charged with violating §18.2-266, Third Offense within a period of five to ten years shall be guilty of a Class 6 Felony and is facing one to five years in the State Penitentiary, or up to 12 months in a local jail, three months of which is a mandatory minimum term of incarceration which must be served; maximum fine of $2,500, $1,000 of which is a mandatory minimum fine; and an indefinite suspension of the persons driver's license or privilege to drive in the Commonwealth of Virginia. The defendant may petition the Court of appropriate jurisdiction for restricted driving privileges after three years* and full privileges after five years. Furthermore, the defendant's vehicle is subject to seizure by the Commonwealth.

§18.2-270(C)(2) Fourth Offense DUI

A person charged with violating §18.2-266, Fourth Offense within a ten year period shall be guilty of a Class 6 Felony and is facing one to five years in the State Penitentiary, or up to 12 months in a local jail, one year of which is a mandatory minimum term of incarceration which must be served; maximum fine of $2,500, $1,000 of which is a mandatory minimum fine; and an indefinite suspension of the persons driver's license or privilege to drive in the Commonwealth of Virginia. The defendant may petition the Court of appropriate jurisdiction for restricted driving privileges after three years* and full privileges after five years. Furthermore, the defendant's vehicle is subject to seizure by the Commonwealth and the defendant will be required to be on probationary status for three years.

§18.2-270(D) DUI while Transporting a Minor

A person charged with violating §18.2-266 while transporting a minor faces enhanced punishments of an additional five days mandatory minimum jail time that must be served and an additional fine of between $500 and $1,000.

§18.2-266.1 Underage DUI

A person under 21 found guilty of driving with a BAC of .02 or higher is guilty of a Class 1 Misdemeanor with a maximum punishment of a fine of $2,500, a minimum mandatory fine of $500 or 50 hours of community service, and a twelve month license suspension with the possibility of restricted privileges being granted*.

REFUSAL TO SUBMIT TO CHEMICAL TESTING & PENALTIES

Implied Consent

Any person arrested on the public highways of Virginia on a suspicion of violating §18.2-266 (DWI, DUI, or DUI-D) or §18.2-266.1 (Underage DUI) is deemed to have consented to a chemical analysis of their breath, or blood, or both, to determine the alcohol content. The accused has no right to choose the type of test they desire to take. The accused is required to submit to a breath test unless the accused is physically unable, or if the breath test is unavailable. If either of those two issues are present the accused will then be required to submit to a blood test. (§18.2-268.2)

Unreasonable Refusal

This is a separate, distinct charge in Virginia. Conviction of Refusal 1st is a civil offense, and upon a finding of guilt of unreasonably refusing to submit to a breath or blood chemical analysis pursuant to §18.2-268.2, the defendant shall incur a suspension of his or her driver's license, or in the case of a driver's license issued by an agency other than the Commonwealth of Virginia, shall incur a suspension of his or her privilege to drive in the Commonwealth of Virginia for a period of one year. Any person found guilty of this offense is ineligible for restricted driving privileges.

A person found guilty of Unreasonable Refusal with a prior DUI conviction or a prior Unreasonable Refusal conviction within a ten year period prior to the instant offense shall be guilty of a Class 2 Misdemeanor with a maximum punishment of incarceration in jail for a maximum period of six months and/or a maximum fine of $1,000. This person will also suffer a three year suspension of his or her driver's license, or in the case of a driver's license issued by an agency other than the Commonwealth of Virginia, shall incur a suspension of his or her privilege to drive in the Commonwealth of Virginia for a period of three years. Any person found guilty of this offense is ineligible for restricted driving privileges during the three year suspension.

A person found guilty of Unreasonable Refusal with two or more prior convictions in the past ten years of either DUI or Unreasonable Refusal shall be guilty of a Class 1 Misdemeanor with a maximum punishment of incarceration in jail for one year, and/or a maximum fine of $2,500. This person will also suffer a three year suspension of his or her driver's license, or in the case of a driver's license issued by an agency other than the Commonwealth of Virginia, shall incur a suspension of his or her privilege to drive in the Commonwealth of Virginia for a period of three years. Any person found guilty of this offense is ineligible for restricted driving privileges.

ADMINISTRATIVE FUNCTIONS of the VIRGINIA DEPPARTMENT of MOTOR VEHICLES

The Virginia Department of Motor Vehicles has limited administrative authority over the driver's license. For the most part, courts in the Commonwealth of Virginia suspend the driver's license and grant restricted licenses rather than this being an administrative function by our DMV.

A restricted license may be granted by the court for driving to and from work; during the course and incidental to employment; to and from medical appointments for the driver, a dependent minor, or a dependent elderly parent; to and from the Virginia Alcohol Action Safety Program (ASAP); to and from court wherein appearing as a witness, to and from a place of religious worship, to and from weekend or non-consecutive jail, to get the ignition interlock device calibrated, and to and from probation or other court ordered programs. Under no circumstance can someone drive outside of these restrictions. The courts and individual judges throughout the Commonwealth differ on the length of time in a day during which one may operate a vehicle and the number of items that will be included.

A person driving outside the restricted license parameters is driving on a suspended license which is a Class 1 Misdemeanor with a jail term of up to 12 months, a maximum fine of $2,500, and a possibility of an additional driver's license suspension.

WEBSITES

Virginia DMV http://www.dmv.state.va.us/

Virginia Court Cases http://www.epwsgdp1.courts.state.va.us/gdcourts/

Code of Virginia http://leg1state.va.us/000/src.htm

Virginia Alcohol Safety Action Program http://www.vasap.state.va.us/