Most Important Drinking and Driving Laws in Virginia

The most common and important Virginia DUI and DWI laws are found here. I will go over the most common and important Virginia drinking and driving laws. FYI, in Virginia the terms DUI and DWI are used interchangeably and mean the same thing.

General Prohibition Against Driving While Intoxicated from Alcohol, Drugs, or any Combination 18.2-266

This (18.2-266) is the main prohibition against drinking and driving in Virginia. It prohibits driving while under the influence of alcohol, legal and illegal drugs, and any combination thereof. It prohibits driving while "intoxicated" or while being "under the influence" of. Generally with alcohol in most cases it will be at a level of .08 or higher because there is a presumption of intoxication at a .08 and up.

Importantly, this Virginia drinking and driving law applies on BOTH public and private property. It is a crime of "general applicability" unlike reckless driving which generally is mostly public highways. There are nuances to this. For instance, the IMPLIED CONSENT law only applies to arrests from driving on public highways. And while mopeds are considered motor vehicles for Virginia DUI/DWI they are only motor vehicles if driven on public highways.

The Virginia DUI/DWI law applies to MOTOR VEHICLES, ENGINES, and TRAINS.

"BABY DUI" FOR PERSONS UNDER 21 YEARS OLD

Commonly referred to as a "baby DUI" this law (18.2-266.1) has pretty much the same teeth as a regular DUI. This law is interesting in that it prohibits driving after illegally consuming alcohol with a BAC between .02 and .08. So if you are below a .02 it does not apply. It also does not apply if you are ABOVE a .07. So in reality, the regular Virginia DUI law should apply if someone under 21 is guilty of driving with a .08. I have seen this law charged incorrectly where the person was under 21 but the BAC was at .10 or above. Clearly this law does not apply in that scenario.

This Virginia DUI law only applies after ILLEGALLY consuming alcohol for persons under 21. Keep in mind there are legal ways for persons under 21 in Virginia to consume alcohol and this law only applies to ILLEGAL consumption. And the BAC level is extremely low. The idea is someone under 21 should not drive at all after consuming any alcohol at all.

Penalties for a "baby DUI" are the same or worse as a normal DUI.

IMPLIED CONSENT AND REFUSAL LAWS

In Virginia, if you drive on a PUBLIC ROAD there is implied consent that you consent to having your blood or breath analyzed if you are arrested on suspicion of driving under the influence AND THE ARREST HAPPENS WITHIN THREE HOURS of the driving. Take a look at the Virginia Implied Consent (18.2-268.2) and Virginia Refusal Laws (18.2-268.3).

There are TWO MAIN DEFENSES or issues that frequently arise with IMPLIED CONSENT/REFUSAL in Virginia. Some lawyers and/or prosecutors do not think to look at this issue but it is important. If implied consent DOES NOT APPLY then you MAY BE ABLE TO GET YOUR BAC THROWN OUT.

As you will see, Virginia DUI law states there is a PRESUMPTION you are intoxicated at a .08 or above. That is why MOST DUI cases involve a BAC at .08 or higher. There is a presumption of intoxication at .08 and most judges treat that as gold. It is challenging to win a case in Virginia if the BAC is .08 or higher and that comes in.

Also, elevated BAC means MANDATORY jail time in Virginia for your DUI even a first DUI in Virginia. Elevated BAC in Virginia is .15-.20 and that is a mandatory 5 days in jail, even for a first offense if you are found guilty at that level. Above .20 it is a MANDATORY ten days in jail, even for a DUI first in Virginia.

MAIN DEFENSES FOR IMPLIED CONSENT OR REFUSAL

Can the Commonwealth Prove You Were Operating on a Public Highway

I have won cases where my client was parked in a private parking lot. Implied consent only applies to public highways. So if the operation was on private property then applied consent does NOT apply, and the BAC should be thrown out. This does not automatically mean you win your case, it simply means the BAC is thrown out and there is not presumption of intoxication. It can also be important if the BAC is elevated then it means there is no MANDATORY JAIL TIME for elevated BAC because there is no BAC.

Can the Commonwealth Prove You Were Arrested Within 3 Hours of Driving on a Public Highway

The timing issue is important, particularly with single vehicle accidents. I had a client charged with an elevated BAC that carried mandatory jail time. He got in an accident but he immediately got out of his car after the accident. While he admitted to driving on the road, he importantly did NOT SAY WHEN he drove on the road. Since there were no witnesses to the accident, they had to get rid of the BAC and therefore the mandatory jail time.

Did the Officer Read the Implied Consent Form, and Then you Refused After

There is a form officers are required to read you, informing you of your right to refuse the BAC test and the consequences thereof. The timing here is important. Most officers will ask you if you are willing to take the BAC or blood test BEFORE reading the form. Then they usually read the form. Legally the officer should thereafter ask you again (particularly if you initially refused) if you will take the BAC or blood test. So if you are charged with refusal, it should ONLY be AFTER you have been read the implied consent form. Some officers do not follow this procedure and if they do not you have a strong legal defense to the refusal.

VIRGINIA DUI PRESUMPTIONS OF ALCOHOL OR DRUG CONTENT IN BLOOD

Virginia DUI law relating to PRESUMPTIONS (18.2-269). As noted above, MOST jurisdictions will not charge DUI in Virginia below a .08. The reason is that if the alcohol in your blood is .05 or below there is actually a presumption you are NOT intoxicated.

If your BAC is .06-.07 there is NO PRESUMPTION of intoxication, and many judges are skeptical of someone charged with DUI in Virginia at this level. Either way, you have a MUCH STRONGER case with a lower BAC.

Conversely, at a .08 or up there is a PRESUMPTION you were driving intoxicated and under the influence of alcohol. With most judges in Virginia, they treat this as a STRONG PRESUMPTION. The closer you are to .08 the better I would say as some judges are receptive to legal defenses, especially with lower BAC levels if the facts of the case are not bad.

VIRGINIA DRINKING AND DRIVING LAWS, PENALTIES FOR DUI IN VIRGINIA

The penalties for Virginia drinking and driving are found in this Virginia DUI law (18.2-270). This is one of the most important Virginia DUI laws and it lays out the penalties for drinking and driving in Virginia. You can think of DUI in Virginia in a layered manner. There is generally a hierarchy of charges from the least serious to the most serious in Virginia DUI law:

1. FELONY DUI, THREE DUI CONVICTIONS WITHIN TEN YEARS (extremely serious charges, usually requires jail)
2. SECOND OFFENSE DUI CONVICTIONS ARE MISDEMEANORS AND NOT FELONIES (very serious charge, often requires jail)
3. FIRST OFFENSE DUI CONVICTIONS ARE MISDEMEANOR (still serious and can still require jail time, but less serious than a second or third offense)

Within each category the BAC level can impact the case significantly and/or the presence or absence of legal defenses. Also, the facts matter. Virginia DUI cases are extremely FACT SENSITIVE to judges and prosecutors. A first offense checkpoint DUI case with no driving behavior and a .08 BAC is different than a first offense where someone was driving 90 mph and wrecked the vehicle and seriously hurt passengers, with a .16 BAC.

Here are some of the important aspects to Virginia DUI law relating to the DUI penalties in Virginia:

FIRST OFFENSE DUI IN VIRGINIA

A Virginia first offense DUI is classified as a class 1 criminal misdemeanor. As such, it carries a maximum fine of $2500, and up to one year in jail. It also requires a license suspension of 1 year and ignition interlock if a restricted license is granted. A fine of $250 is mandatory for first offense DUI in Virginia. There is also a mandatory referral to Virginia Alcohol Safety Action Program (VASAP) which has its own fees and costs.

Thus the range of punishment if you are convicted of a first DUI in Virginia is at a minimum:

1. $250 fine up to $2500 maximum but most locations they do the $250 minimum fine for a first offense
2. referral to VASAP
3. license suspension for 1 year and eligible for restricted driver's license
4. ignition interlock
5. jail time 0 days up to 12 months (elevated BAC convictions require 5 days for .15-.20 and 10 days over .20)

The likelihood of jail time for a first offense is related to how much endangerment there is on a given case, and also what judge/prosecutor you get and if there is a legal defense to your case.

SECOND OFFENSE DUI IN VIRGINIA WITHIN 5 YEARS

Second offense DUI's in Virginia require a mandatory 20 days in jail and that is a mandatory minimum. The maximum is still up to one year, but 20 days are mandatory minimum for a conviction of a second offense DUI within 5 years. In addition, the fine amount that is a mandatory minimum goes up to $500 and the license suspension is for 3 years and not 1 year. You cannot petition for a restricted license right away either. And there is the referral to VASAP.

SECOND OFFENSE DUI IN VIRGINIA WITHIN 10 YEARS

The mandatory minimum jail sentence is 10 days for a second offense DUI in Virginia within 10 years. The license suspension is for 3 years upon conviction and you cannot immediately petition for a restricted license. The fine is a mandatory minimum of $500 although it is a maximum of $2500. There is still a referral to VASAP.

THIRD OFFENSE DUI IN VIRGINIA WITHIN TEN YEARS

Virginia DUI's are the most serious for third offense within ten years. This becomes a class 6 felony, which carries up to 5 years in jail. The license suspension is much more serious and so is the mandatory jail sentence and the fine.

EVERY DUI IN VIRGINIA CAN BE EITHER REDUCED, DISMISSED OR OTHERWISE AMENDED TO A LESSER CHARGE AFTER A TRIAL WITH A JUDGE OR BY AGREEMENT WITH THE PROSECUTOR

It is important to know that just because you stand CHARGED with an offense, you have not been convicted. The location of your Virginia DUI makes a big difference because that determines who your judge is and who your prosecutor will be. Hiring an excellent Virginia DUI lawyer can make a big different to your case. The goal is to poke as many holes as you can in the case and to locate any and all potential legal defenses. This can take creativity and persistence.

However, by locating legal defenses you INCREASE the chances of getting the best outcome possible. Leavitt & Martin has COMPLETELY WON DUI cases before after a full trial in general district court based on legal defenses. And they were SERIOUS DUI cases. We have also had serious DUI CASES reduced or amended to charges such as reckless driving and even improper driving. This can impact careers, dmv points and insurance, and also license suspensions. Every Virginia DUI case is truly unique and hinges on a lot of different factors. A good DUI attorney in Virginia will get as much information as possible and try to locate any and all potential defense to leverage that for a better outcome.