Virginia DUI: What You Need to Know
The information contained here was written by experienced Virginia DUI attorney Andrew Flusche and was last updated in June of 2021.
Are you facing a DUI charge in Virginia? If so, I am sure you are worried about what you could be facing. Let’s take a look at the facts.
An Overview of DUI in Virginia
- In Virginia, driving under the influence occurs when you drive or operate any motor vehicle while your blood alcohol concentration is 0.08 percent or higher.
- Virginia Code § 18.2-266 makes DUI / DWI a class 1 misdemeanor, which is a significant criminal charge.
- Potential penalties for a first-offense DUI in Virginia include, a fine of up to $2,500, a jail sentence of up to 12 months, and a license suspension of up to 12 months.
If you have been charged with a DUI in Virginia, I am here to help. Please don’t hesitate to contact me to discuss your defense.
If I am unable to help you, I will refer you to a qualified attorney in your area who can.
Keep reading for answers to your most pressing questions about your Virginia DUI charge.
Virginia DUI: Answers to Your Questions
Jump-to the information you need:
What Are the Penalties for DUI in Virginia?
The biggest factor in determining jail time for a DUI is what your blood alcohol content is proven to be.
In Virginia, if you’re found guilty of a first offense Virginia DUI and the blood alcohol is .15 to .20, the law requires that the judge gives you at least 5 days of jail.
If your blood alcohol content was over .20, the law requires at least 10 days in jail. If your blood alcohol was below .15, there is no mandatory jail.
If you’re found guilty of DUI in Virginia, you’ll have to do VASAP – Virginia Alcohol Safety Action Program.
There’s, unfortunately, no way around this requirement if you’re convicted, even if the DUI was only for prescription medication!
Some courts might not require VASAP upon pain of going to jail; however, you would have to complete VASAP to clear your license with the Virginia DMV.
VASAP is normally a minimum of 10 weeks of classes – two hours per class. Depending upon your record and substance abuse history, you may have to do additional things such as therapy and AA meetings.
Jail is definitely one of the top questions people have about their Virginia DUI charge. Are you going to jail, and if so, how much time might you get?
Even setting aside the mandatory jail due to your blood alcohol content, you can still get jail – or more jail than the mandatory minimum.
One big factor around Fredericksburg that can give you jail time is if your case involved an auto accident. Some prosecutors push hard for jail in those cases.
How Long Does a First Offense DWI Stay On Your Record?
If you’re charged with a DUI in Virginia, you need to know that it’s a Class 1 misdemeanor. It’s the most serious level of misdemeanor there is in Virginia.
Clients and potential clients routinely ask me how long this offense will stay on their record. Unfortunately, the news is that it will be on your criminal record forever.
A Virginia criminal history covers your entire life, so a misdemeanor conviction on your criminal history will be there forever.
The good news is that a DWI only stays on your Virginia driving record for 11 years. If someone is just looking at your Virginia driving transcript, then the DWI conviction will only be there for 11 years.
That’s still a long time, but at least it’s not the rest of your life.
How Do I Get my License Back Before the Trial?
If you are charged with Virginia DUI, you will have a 7-day suspension of your license for a first offense – or a 60-day suspension for a second offense.
After the pre-trial suspension is over, you should be able to pick your license up in person at the clerk’s office. They will sometimes mail it to you as well.
If the clerks don’t have your license or it gets lost in the mail, you can request a re-issue of your license from the Virginia DMV.
Can I Get My Virginia DUI Reduced to “Wet Reckless”?
Many clients understand that they may not beat their case completely, but they’re trying to see if they can at least get a break from a DUI conviction.
Lots of websites and online forums talk about getting a Virginia DUI reduced to a “wet reckless” outcome to achieve exactly that goal.
A “wet reckless” is a slang term for convicting you of reckless driving but adding punishments such as VASAP and license suspension because you were originally charged with DUI.
Unfortunately, this isn’t usually possible in the courts around Fredericksburg,Stafford, Spotsylvania, King George, and Caroline.
In the courts where I practice, the prosecutors normally want a DUI conviction if they can prove it. To try to avoid the DUI, we normally have to fight the case head-on.
What If the Officer Doesn’t Have a Video?
Many people are used to shows like CSI and Law & Order where video and other physical evidence are often used to prove the state’s case. Unfortunately, real criminal cases aren’t usually based on the video.
In most Virginia DUI cases, there will be no video. Many cruisers aren’t equipped with video, and they often malfunction. Also, sometimes the video is angled in a way that you’re not even on it.
The lack of video does NOT help us. In fact, I believe that it often hurts the defense.
Most judges lean toward believing whatever the law enforcement officers say in court, so they don’t need the video to establish their case.
However, video can help us to show that the facts aren’t as bad as they might sound – and sometimes the officer might be completely mistaken in their testimony. But if there’s no video, we won’t have a way to demonstrate that.
Can We Win If the Officer Didn’t Read Me My Rights?
Your Miranda rights or “warnings” are only required if you are being interrogated while in custody. And then, the remedy for not reading your rights to you is that any answers you give are not admissible in court.
How does this apply to a Virginia DUI? Usually, the police will get all the evidence they need for their case before you’re actually in custody.
They ask you about where you’re coming from, what you drank, when your last drink was, etc. Then they have you do field sobriety tests and the handheld breath test. Only after all that are you normally placed into custody.
That’s when your Miranda rights should be read to you. But if the officer forgets to read your rights to you, there may not be any harm to the Commonwealth’s case.
The only remaining evidence they usually need after your arrest is to prove your blood alcohol content, and Miranda doesn’t really apply to that test.
With that said, there are some cases where the officer continues to ask questions after you’re arrested. If they haven’t read your rights to you, then we can hopefully exclude any answers that you gave.
Will I Be Able To Drive To Work?
If you are found guilty of first offense DUI, Virginia law requires that your Virginia license (or privilege to drive in Virginia) is suspended for one year.
The good news is that in most courts you’d be immediately eligible for a restricted driver’s license to let you drive for work, school, childcare, church, etc.
You would have to install an ignition interlock on whatever vehicle you’re driving for the first six months, but at least you’d be able to drive.
Virginia law now allows you to have a more flexible restricted license if your blood alcohol level was below .15.
You can opt to drive anywhere you’d like during the restriction period, as long as you have an ignition interlock installed the whole time.
A second-offense DUI conviction in Virginia makes it more difficult to get to work. Your license would have to be suspended for 3 years.
Depending on how long ago your first offense was, you’d be able to get a restricted license after 4 or 12 months. You might be walking for a year.
DUI vs. DWI in VA: What’s the Difference?
DUI and DWI in VA are basically interchangeable slang terms for the same basic offense: Operating an engine under the influence of something.
People often ask me what the difference is between DWI and DUI in Virginia. Frankly, there isn’t any difference in my opinion. They are both just slang terms for the same thing.
Virginia law, under section 18.2-266, prohibits operating a motor vehicle–any kind of engine, or even a train–if you’re under the influence of drugs or alcohol, or any kind of substance that alters your abilities to drive or operate the vehicle safely.
So it’s a very broad statute. DUI covers the operation of just about any kind of engine, under pretty much any circumstances when your abilities are impaired.
That could be due to alcohol, which is most common, it could be due to drugs such as marijuana, or it could be due to medicine your doctor gave you. Even a prescription medicine could be a DUI.
Why Do We Call them DUI or DWI?
Frankly, I use the term DUI just because it’s easier to say. DWI is a bit more cumbersome, so I just call it DUI.
The Virginia courts, on your paperwork, if you’re charged with a violation under 18.2-266, typically write DWI. What that stands for is Driving While Intoxicated, so that’s usually an alcohol charge.
However, as I said, the statute covers basically driving under the influence of just about anything, so that’s where DUI comes from Driving Under the Influence.
So if you have a drug charge, for example, there is actually another acronym you might see called DUID, which is Driving Under the Influence of Drugs.
But as you can see, it’s all under the same statute. It’s all prohibiting operating an engine while under the influence of something. That’s why I typically just refer to all in shorthand as DUI and many attorneys and defendants do as well.
There is really no distinction. DUI, and DWI, it’s all the same type of charge, and it’s really the same offense.
There are different little things the Commonwealth may have to prove, such as what actually was in your system, but in every case, they have to prove operation, and that you were actually under the influence of something.
So no matter what it’s called, DUI or DWI, it’s certainly a serious charge and you’re still facing the same penalties, which would be a one-year loss of license, depending on the actual case, perhaps some jail and that kind of thing.
So you definitely want to talk with an experienced DUI/DWI attorney about your case.
Recent Case Result: Spotsylvania DWI Dismissed on Appeal
(Cases depend upon unique facts. Past cases do not guarantee future outcomes.)
THE STORY:
Jane hired our firm for a serious Spotsylvania DWI charge related to a vehicle accident. We immediately knew that the Commonwealth would have trouble proving that Jane was actually intoxicated at the time of the alleged driving.
The discovery process revealed several weaknesses in the government’s case against Jane. It was not clear that she was even the driver of the vehicle to begin with. And the government investigators could not explain about two hours of time between the accident and when they encountered Jane. Had she been drinking during that time?
The original trial judge in General District Court did not think there was reasonable doubt in Jane’s case, but she exercised her right to appeal to the Circuit Court. In Virginia, that appeal provides a brand new trial with a different judge.
On appeal, we fought many issues including Jane’s arrest itself, the admissibility of the breath certificate, and finally whether or not Jane consumed alcohol between the accident and her arrest.
CASE OUTCOME:
The judge acquitted Jane because there was reasonable doubt whether or not she was actually intoxicated at the time of the driving.
[INFOGRAPHIC] VIRGINIA’S MOST SHOCKING DUI STATISTICS
1.4% of Virginians have reported that they drove while drunk in the past 30 days. Not only is driving a vehicle while impaired a serious crime, it puts your life and the lives of others in danger.
Drunk Driving in Virginia
Alcohol-related crashes account for about 30% of all traffic fatalities in the state of Virginia. The US Centers for Disease Control and Prevention (CDC) reports that from 2003-2012, 2,613 people were killed in crashes involving a drunk driver in Virginia.
Although driving becomes illegal when a person is impaired with a blood alcohol concentration (BAC) of .08 percent or greater—or .04 percent for commercial drivers—any level of impairment can be very dangerous.
Alcohol-Related Incident Statistics
The Virginia Department of Motor Vehicles reported that in 2016, there were 7,482 alcohol-related crashes in Virginia. 252 of these crashes were fatal, 3,325 of these crashes resulted in injuries, and 3,905 of these crashes resulted in property damage.
The majority of people who were involved in an alcohol-related crash in 2016 were between the ages of 21 and 35. 365 teenagers, aged 15-19, were injured in alcohol-related crashes and 8 teenagers, aged 15-19, were killed in alcohol-related crashes. Additionally, males were about four times more likely than females to die in an alcohol-related crash.
There were 19,925 people convicted of a DUI in Virginia in 2016. These people had an average BAC of 0.1452, which is well above the legal limit of 0.08. Of those convicted of a DUI, almost 70 percent were male.
What Happens If I Refuse the Chemical Test Offered by the VA Police?
The answer to that question depends on the type of test the officer asked you to take.
Preliminary Breath Test (PBT)
Law enforcement officers in Virginia can ask you to take a preliminary breath test or PBT for short. Virginia’s DUI law allows the officer to give you the PBT as part of an investigation into drunk driving.
The investigating officer usually asks people to take the PBT on the side of the road before asking them to take field sobriety tests.
The officer will ask you to blow into a machine that supposedly measures the amount of alcohol in your breath.
You DO NOT have to take this test. In fact, you can — and should — refuse this test. No good can come if you take it. The officer will only use the result to build a case against you.
Also, the police cannot use your refusal to take the PBT against you in court. In addition, there’s no penalty in Virginia for refusing the PBT.
PBTs are notoriously unreliable, which is why police officers can only use them to find probable cause for arrest.
The chances of you taking the test and passing are minimal if you’ve had a drink or two. Also, the officer will keep investigating if you pass the test anyway.
Breathalyzer or Blood Tests
Virginia law treats breathalyzers and blood tests differently than PBTs.
In Virginia, you “consent” to taking a chemical test if a police officer arrests you for DUI. Of course, you never actually consent to take the breathalyzer or blood test.
Rather, Virginia law “implies” you consented to take a chemical test when you drive on a public way in the Commonwealth.
Under Virginia’s implied consent law, you cannot “unreasonably refuse” to take a chemical test after a DUI arrest.
Unreasonable refusal means that you refused to take a chemical test if the police had probable cause to arrest you for DUI and they offered the test within three hours of the arrest.
The officers must give you rights regarding chemical tests as well.
Unreasonably refusing a chemical test violates Virginia law. A person’s first refusal to take a chemical test is a civil infraction.
The penalty results in a suspension of your driving privileges for one year. Virginia law treats subsequent refusals as misdemeanor offenses.
There’s one additional consequence for refusing a chemical test: the prosecution can admit your refusal against you at trial.
Do I Have a Defense If I Take a Chemical Test?
Yes. You are not automatically guilty if you take a chemical test. The Commonwealth must prove that the police followed correct procedures to administer the test.
Also, the prosecution has to prove the device was in working condition at the time you gave the sample. Furthermore, the Commonwealth has to prove the test is reliable.
A highly experienced DUI defense lawyer in Virginia will scrutinize all the evidence to give you the best defense possible, even if you “failed” a chemical test, meaning your test results were 0.08% or higher.
Having a skilled DUI Virginia defense lawyer examine your case may help you come up with other defenses as well.
You could knock out all the evidence if you successfully argue that the police had no justification to pull you over in the first place, for example.
I Have a DUI from Another State—Can that Be Used Against Me?
Yes. The Commonwealth can use evidence of an out-of-state DUI conviction to prove that the court should treat you as a repeat offender.
If you have a second offense within five years, then the court must sentence you to jail for 30 days but no longer than one year. Twenty days out of the 30 are mandatory. The judge must also impose a $500 fine.
If, however, your first DUI was between five and 10 years ago, then your possible punishment is a $500 fine and 30 days in jail, and you must serve 10 days in jail before release.
A conviction of 10 years or older will not qualify to classify you as a repeat offender. However, the judge could impose a maximum sentence of one year without any mandatory time.
Keeping your record clean is important because the penalties for repeat offenders are harsh.
I can devise a personalized strategy to defend your DUI case and minimize your risk of becoming a repeat offender.
