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

What is the DUI / DWI law in Virginia? DUI and DWI laws in Virginia are outlined in VA Law 18.2-266, which encompasses DUI, DWI, and DUID as drunk driving criminal offenses. Virginia classifies the DUI / DWI offense as a class 1 Misdemeanor crime under Virginia law, punishable by up to 1 year in jail, a fine between $250.00 and $2,500.00, at least one year of driver’s license suspension, 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 this is not your first DWI offense. We will use the Virginia DUI and Virginia DWI terms interchangeably since the law applies in the same way to both DUI and DWI 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 Offense Crime Class Max Jail Min Jail BAC .15+
Min Jail
BAC > .20
Min Jail
License
Loss
DUI 1st
Offense
Misdemeanor 12 Months N/A 5 Days 10 Days 12 Months
DUI 2nd in
10 Years
Misdemeanor 12 Months 10 Days 20 Days 30 Days 36 Months
DUI 2nd in
5 Years
Misdemeanor 12 Months 20 Days 30 Days 40 Days 36 Months
DUI 3rd in
10 Years
Class 6
Felony
5 Years 90 Days 100 Days 110 Days 36 Months
DUI 3rd in
5 Years
Class 6
Felony
5 Years 180 Days 190 Days 200 Days 36 Months
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), or a standard first offense reduction to Reckless Driving (as they do in many other states). Instead, a First Offense DWI in 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 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.


 

Virginia DUI Attorney

Call 888-886-4127

This article is written by Virginia DUI attorney Marina Medvin, an award-winning DWI lawyer serving Alexandria, Fairfax, and Arlington, VA. She successfully represents individuals charged with DUI and DWI crimes in Alexandria, Arlington, Fairfax, Vienna and Falls Church. In addition to her Juris Doctorate degree, Ms. Medvin has a Bachelor of Science Honors Degree from Penn State, where she graduated in the Top 10% of her class. Both a legal and a science background are recommended for the defense of Virginia DWI cases because of the scientific and chemical analysis of the Blood Alcohol Content. Please call for a Virginia DUI attorney consultation request.

 

 


 

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 you are granted a restricted driver’s license, you must pay for and use an ignition interlock device
4) if your BAC level was between .15-.20, you MUST serve at least 5 days in jail
5) if your BAC level was above .20, you MUST serve at least 10 days in jail
6) 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.

 


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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

Indicators of DUI Expressed After Police Officer Stops Your Vehicle

• 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

DUI / DWI Field Sobriety Tests

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.

DUI Blood Test or Breath Test

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.

Refusal to Submit to DUI Blood Test or Breath Test

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 Offense Classification of Offense Maximum Imprisonment Suspension of License Maximum Fine
1st Offense Refusal Citation N/A 12 Months N/A
Refusal after 1 prior DUI conviction Class 2 Misdemeanor 6 Months 36 Months $500.00 Fine
Refusal after 2 prior DUI convictions Class 1 Misdemeanor 12 Months 36 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.