Virginia DWI & DUI Laws and Penalties: VA Law 18.2-266

Virignia drunk driving laws are outlined in VA Code 18.2-266, which criminalizes DUI, DWI, and DUID as misdemeanor and felony criminal offenses.

Virginia classifies first offense and second offense DUI / DWI cases as class 1 Misdemeanor crimes, punishable by up to 1 year in jail, a fine between $250.00 and $2,500.00, between 12-36 months of driver’s license suspension, mandatory alcohol education classes, and probation. The jail penalty increases significantly if you were arrested with a blood alcohol level of 0.15 or higher, or if you are arrested for a subsequent DWI offense. Third offense DUI cases are penalized as felony crimes, with at least 90 days in jail and up to 5 years in prison, permanent revocation of your driving privileges, amongst the other standard DUI penalties.


We will use the Virginia DUI and Virginia DWI terms interchangeably because the law applies in the same way to both DUI and DWI cases in Virginia.


Virginia DWI / DUI law prohibits:

  • Driving while under the influence of alcohol – DUI, and,
  • Driving with a blood alcohol content level of .08 or higher – DWI, and,
  • Driving while under the influence of marijuana, drug or intoxicant – DUID.

Virginia DWI Penalty Table

(Maximum fine for all Virginia DUI offenses is $2500.00)

DUI OffenseCrime ClassMax JailMin JailBAC .15+
Min Jail
BAC > .20
Min Jail
License
Loss
DUI 1st
Offense
Misdemeanor12 MonthsN/A5 Days10 Days12 Months
DUI 2nd in
10 Years
Misdemeanor12 Months10 Days20 Days30 Days36 Months
DUI 2nd in
5 Years
Misdemeanor12 Months20 Days30 Days40 Days36 Months
DUI 3rd in
10 Years
Felony5 Years90 Days100 Days110 DaysIndefinite
DUI 3rd in
5 Years
Felony5 Years180 Days190 Days200 DaysIndefinite
DUI 4th in
10 Years
Felony5 Years1 year1 year1 yearIndefinite

While the DUI punishments outlined above are the minimum and maximum possible punishments for each variation of a drunk driving offense in Virginia, the judge may impose any amount of jail time in between the minimum and maximum range of penalties. It is undoubtedly important for you to trust your DWI attorney and be comfortable with your defense to make sure that your case results in an outcome as close to the minimum as possible – if not a dismissal of the charge altogether. The investment in a strong DUI defense lawyer for your first DUI charge is undeniable – as you can see that a second or subsequent DWI CONVICTION will guarantee you jail time in Virginia.


DUI in Northern Virginia

All Northern Virginia police departments and courts – Alexandria, Arlington, and Fairfax – apply Virginia’s DUI laws and penalties to their fullest extent as described in this article.

Virginia has the harshest DUI laws and penalties in the country under Va Code 18.2-266. A First Offense DUI in Virginia is a wake-up call for most clients when they realize that we do not have a first offense dismissal (as they do in Maryland, for example), or a standard first offense reduction to Reckless Driving (as they do in many other states or some southern Virginia courts). Instead, a First Offense DWI in Northern Virginia can lead to a criminal conviction with a criminal record, loss of driver’s license, and jail time. A second DUI offense can result in jail time, and a third DWI offense is a Felony with 3-6 months of mandatory minimum jail time.

Any amount of alcohol in your system can result in a DUI charge and conviction. While most charges for drunk driving will have a Blood Alcohol Content (BAC) level of .08 or higher, this is actually not required under Virginia law. Thus, a BAC level BELOW .08 can still result in a DUI arrest and conviction!

Unlike every other charge, which requires for the government to prove that you are guilty beyond a reasonable doubt, in a DUI case, the burden shifts to the accused when the BAC is above a .08. When the blood alcohol level is .08 or higher, the court will presume that the accused was under the influence. This means that when you step into a Courtroom with a DWI case in which a BAC is .08 or above, you are already presumed to have been driving under the influence … and it is up to you and your DWI lawyer to show otherwise.

experienced DUI defense attorney

When the BAC level is between .05 and .08 there is no such presumption and the prosecutor needs to prove beyond a reasonable doubt that you were driving while intoxicated. And, when the BAC is .05 and below, the court will presume that you were not under the influence and it will be up to the prosecutor to prove your intoxication by other evidence. This last standard is the standard presumption in any other criminal trial – you are presumed innocent until proven guilty. As you can see, Virginia DUI laws are terribly unfair and require attorney maneuvering.

Unlike other states, which treat DUI cases as less serious traffic offenses, Virginia codifies DUI and DWI cases as criminal misdemeanor acts. The cousin charge for these offenses, Reckless Driving (AKA “Wet Reckless”), is treated less seriously in Virginia, codified as a criminal traffic offense in the VA traffic code chapter.



Drunk Driving with Child in Vehicle

If you are arrested in Virginia for a DUI or DWI with a minor child in your vehicle under the age of 18, there is a fine that is added in addition to the standard DUI fine in an amount between $500 and $1,000. You will also be ordered to serve a mandatory minimum of 5 days of jail upon being found guilty of drunk driving with a child in your vehicle.

 


 

FIRST OFFENSE DWI PENALTIES

MAXIMUM penalty for a First Offense DUI in Virginia:
(1) up to 1 year in jail,
(2) mandatory minimum jail sentence for certain BAC levels and case facts
(3) up to an indefinite suspension of your driver’s license/privileges,
(4) ignition interlock device for your vehicle if you get a restricted license at your expense,
(5) completion of ASAP (Alcohol Safety & Awareness Program) at your expense,
(6) a total of 6 points on a Virginia driver’s license, and,
(7) between a $250.00 and $2,500.00 fine.

MINIMUM penalties for a First Offense DUI in Virginia:
1) you must attend ASAP classes at your expense
2) your driver’s license will be suspended for a period of 12 months
3) if your BAC level was between .15-.20, you MUST serve at least 5 days in jail
4) if your BAC level was above .20, you MUST serve at least 10 days in jail
5) if you had a child passenger in your vehicle at the time of the offense who was under the age of 18 at the time, you MUST serve at least 5 days in jail – with an additional fine between $500.00 and $1,000.00


DWI SECOND OFFENSE PENALTIES

MINIMUM Penalties for a DUI Second Offense in a 5 Year Period

1) you MUST serve at least 20 days in jail
2) your fine will be at least $500.00
3) if your BAC level was between .15-.20 during your second offense, you MUST serve at least a total of 30 days in jail
4) if your BAC level was above .20 during your second offense, you MUST serve at least a total of 40 days in jail
5) you will lose your driver’s license for 36 months
6) you are not eligible for a restricted driver’s license for at least 12 months
7) you vehicle MUST be equipped with an ignition interlock device for the first 6 months of your restoration of driving privileges

MINIMUM Penalties for a DUI Second Offense in a 10 Year Period

1) you MUST serve at least 10 days in jail
2) your fine will be at least $500.00
3) if your BAC level was between .15-.20 during your second offense, you MUST serve at least a total of 20 days in jail
4) if your BAC level was above .20 during your second offense, you MUST serve at least a total of 30 days in jail
5) you will lose your driver’s license for 36 months
6) you are not eligible for a restricted driver’s license for at least 4 months
7) you vehicle MUST be equipped with an ignition interlock device for the first 6 months of your restoration of driving privileges


DWI THIRD OFFENSE PENALTIES

MINIMUM Penalties for a Felony DUI Third Offense in a 5 Year Period

1) you MUST serve at least 6 months in jail
2) your fine will be at least $1,000.00
3) if your BAC level was between .15-.20 during your third offense, you MUST serve another 10 days in jail in addition to the 6 months
4) if your BAC level was above .20 during your third offense, you MUST serve another 20 days in jail in addition to the 6 months
5) your vehicle is subject to seizure and forfeiture to the state
6) you will lose your driver’s license for 36 months, or indefinitely as a habitual offender
7) you vehicle MUST be equipped with an ignition interlock device

MINIMUM Penalties for a Felony DUI Third Offense in a 10 Year Period

1) you MUST serve at least 90 days in jail
2) your fine will be at least $1,000.00
3) if your BAC level was between .15-.20 during your third offense, you MUST serve at least a total of 100 days in jail
4) if your BAC level was above .20 during your third offense, you MUST serve at least a total of 110 days in jail
5) your vehicle is subject to seizure and forfeiture to the state
6) you will lose your driver’s license for 36 months
7) you vehicle MUST be equipped with an ignition interlock device

Q: How is a Felony DWI different from a Misdemeanor DWI?

A: The felony DUI contains all of the penalties for a misdemeanor DUI but has additional and higher penalties for license loss and for jail time – a maximum imprisonment penalty of up to 5 years.

 


Click to Review All DUI / DWI Case Results
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ALEXANDRIA, VIRGINIA DUI DEFENSE ATTORNEY CASE RESULT: Old Town Alexandria vehicle collision that resulted in a DUI arrest under Va Law 18.2-266 was REDUCED and amended to a charge of Reckless Driving. The amended charge was penalized by a high fine. NO JAIL time, no Alcohol classes, no license suspension. [...]

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Virginia First Offense DUI With .16 BAC REDUCED

ARLINGTON, VIRGINIA DUI ATTORNEY CASE RESULT: A first offense DUI charge in Arlington, VA, under Virginia Law 18.2-266, with a blood alcohol content of .16, which mandates a minimum 5-day jail sentence if convicted of the DUI as charged (plus more time for the collision while DUI), resulted in a [...]

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Federal DUI at Pentagon DISMISSED for Insufficient Evidence

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4th DUI Results in DUI 1st Plea Deal & Only 5 Days in Jail

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Federal DUI BAC .21 Resulted in Only 3 Days Home Confinement

ALEXANDRIA, VIRGINIA Federal misdemeanor DWI and DUI charges for drunk driving at the CIA resulted in DISMISSAL of the DWI charge and reduction of the mandatory minimum 10-day jail sentence required for a BAC level of .21 to only 3 days of come confinement after a presentation of defense attorney [...]

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Pentagon DUI / DWI, Driving on Suspended License Results in DISMISSAL

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Alexandria Virginia DWI 18.2-266 REDUCED to Reckless Driving

ALEXANDRIA, VAMisdemeanor DWI charge in the City of Alexandria under Va Code 18.2-266 after a 4-vehicle collision on I395 resulted in an AMENDMENT and REDUCTION of the charge to Reckless Driving, with an agreed-upon penalty of a fine, 6 months of license suspension, and alcohol classes. NO JAIL TIME, no [...]

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DWI in Arlington Virginia BAC .18 REDUCED to Reckless Driving, No Jail Time

ARLINGTON, VIRGINIA DWI charge in Arlington, VA under Virginia Law 18.2-266, with a blood alcohol content of .18, requiring mandatory minimum 5 day jail time if convicted of the DWI as charged (plus more time for the collision while DWI), resulted in a REDUCED and AMENDED charge to Reckless Driving, [...]

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Virginia DUI Arrests and DWI Investigations

Police Procedures for DUI Arrests

Driving Behavior Leading to DWI Suspicion

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.)

VA DUI Arrest Procedure

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


Description of OffenseClassification of OffenseMaximum ImprisonmentSuspension of LicenseMaximum Fine
1st Offense RefusalCitationN/A12 MonthsN/A
Refusal after 1 prior DUI convictionClass 2 Misdemeanor6 Months36 Months$500.00 Fine
Refusal after 2 prior DUI convictionsClass 1 Misdemeanor12 Months36 Months$2,500.00 Fine

Operating a Vehicle in a Virginia DUI: Sitting Behind the Steering Wheel

VA Code provides that an operator or a driver means: “every person who either (i) drives or is in actual physical control of a motor vehicle on a highway or (ii) is exercising control over or steering a vehicle being towed by a motor vehicle.” A Virginia Supreme Court judge had recently reiterated: “any individual who is in actual physical control of a vehicle is an operator.”

Virginia courts have established the rule that when an intoxicated person is seated behind the steering wheel of a motor vehicle on a public highway and the key is in the ignition switch, he is in actual physical control of the vehicle and, therefore, is guilty of operating the vehicle while under the influence of alcohol within the meaning of Code § 18.2-266 and can be guilty of a DUI.

Based on this definition and a variety of Virginia Supreme Court decisions, Virginia police officers will charge you with a DUI even when you are not actually driving your vehicle. This includes: falling asleep behind the wheel of a parked car while in the driver’s seat with the keys in the ignition, just listening to the radio in the driver’s seat while the car is on, etc.


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