DUI

Driving Under the Influence of alcohol or drugs (DUI) is a serious charge in Virginia.  A conviction for a DUI in Virginia under Va. Code §18.2-266 will result in jail, fines, driver’s license revocation, mandatory enrollment in the Virginia Alcohol Safety Action Program (ASAP) and installation of an Ignition Interlock.  The most serious consequence, though, is a permanent criminal record.


Driving Under the Influence in Virginia

There are 5 ways a driver can be convicted of a DUI in Virginia.  They are listed in Va. Code §18.2-266:

  • DUI in VirginiaDriving with a Blood Alcohol Content (BAC) higher than .08 (Va. Code §18.2-266(i))
  • Driving under the influence of alcohol (Va. Code §18.2-266(ii))
  • Driving under the influence of drugs (Va. Code §18.2-266(iii))
  • Driving under the influence of both drugs and alcohol (Va. Code §18.2-266(iv))
  • Driving with certain amounts of particular drugs in the driver’s system (Va. Code §18.2-266(v))
Driving Under the Influence of Alcohol

Va. Code §182-266(i) and (ii) make it a crime to drive under the influence of alcohol in Virginia.  An offender can be convicted of driving under the influence of alcohol in Virginia with results from a Breathalyzer Test indicating a BAC higher than .08 (Va. Code §18.2-266(i)) or other evidence indicating that he is under the influence of alcohol (Va. Code §18.2-266(ii)).

Driving Under the Influence of Drugs

A driver can also be charged with, and convicted of, a DUI in Virginia if he drove under the influence of drugs.  Additionally, if certain amounts of specific drugs are found in the offender’s blood, the court can infer that the driver was under the influence of those drugs at the time of the offense.  For more information on driving under the influence of drugs in Virginia, click here.

Probable Cause for DUI Arrest in Virginia

Police officers can establish probable cause for a DUI arrest based on the offender’s erratic driving behavior, performance on field sobriety tests, Preliminary Breath Test (PBT) results, and other indicia of intoxication.

Driving Behavior: Certain driving behaviors can indicate impairment due to drugs or alcohol. These driving behaviors include swerving over the lines and driving off of the road.  For more information on driving behavior indicating that a driver may be under the influence in Virginia, click here.

Field Sobriety Tests: Field sobriety tests are divided attention tests used to determine impairment.  The three most common field sobriety tests in Virginia are the Horizontal Gaze Nystagmus (HGN) test, the nine step walk and turn, and the one leg stand.  For more information on field sobriety tests in Virginia, click here.

Preliminary Breath Test (PBT): The Preliminary Breath Test, or PBT, is a roadside breath test used before a suspect is arrested for a DUI. PBT results are used to establish probable cause to arrest a suspect for a DUI in Virginia.  PBTs are voluntary and a driver can refuse to take the PBT and that refusal will not be used against him in court.  PBT results do not come into evidence against the driver, but they can come in if the defendant challenges probable cause to arrest.  For more information on Preliminary Breath Tests in Virginia, click here.

Other Indicators: Glassy or blood shot eyes, slurred speech, an odor of alcohol, and admissions to drinking can all be used to establish probable cause that an offender was driving under the influence in Virginia.

Click here for more information on how an officer develops probable cause to arrest a suspect for a DUI in Virginia.

Proof of DUI in Virginia

To be convicted of a DUI in Virginia, the Commonwealth must prove that the offender was:

  • operating
  • a motor vehicle
  • under the influence
  • of alcohol or drugs
Operation

Operation  in Virginia means driving or being in actual physical control of a motor vehicle. Admissions to driving or testimony that a witness saw the offender driving or operating a motor vehicle can be introduced as proof of operation.

Motor Vehicle

Va. Code §46.2-100 defines motor vehicle as any vehicle “that is self-propelled or designed for self-propulsion except as otherwise provided in this title.  Any structure designed, used, or maintained primarily to be loaded on or affixed to a motor vehicle to provide a mobile dwelling, sleeping place, office, or commercial space shall be considered a part of a motor vehicle.”

Under the Influence

A driver is under the influence if alcohol or drugs have impaired his ability to safely operate a motor vehicle. “Under the influence” means that the offender drank enough alcohol or consumed enough drugs to observably affect his speech, manner, muscular movement, disposition, behavior, or general appearance.

Additionally, a BAC higher than .08 in Virginia creates a permissive inference that the driver was under the influence at the time of the offense, and Blood Drug Content at certain levels for specific drugs allows courts to infer the driver was under the influence of drugs at the time of the offense.

In addition to (or instead of) chemical tests, there a number of other ways the Commonwealth can prove an offender was under the influence of alcohol or drugs while operating a motor vehicle.  Admissions to drinking or taking drugs, an odor of alcohol, appearance of being under the influence (glassy or blood shot eyes, appearing disheveled), slurred speech, and even the driving behavior that lead to the initial stop can all be used as evidence that a driver was under the influence of alcohol.

Alcohol or Drugs

A driver can be convicted of operating a motor vehicle under the influence of alcohol or drugs in Virginia.  The Commonwealth must prove that the offender had alcohol, drugs, or both in his system and that the alcohol or drugs (or combination of alcohol and drugs) impaired his ability to safely operate a motor vehicle.  Breathalyzer tests and blood tests are commonly used not only as proof that the substances were in the driver’s system, but that the levels were high enough to infer that the driver was under the influence at the time he was operating a motor vehicle.

What Happens After A Suspect is Arrested for a DUI in Virginia?

Vehicle Impoundment

breathalyzer refusal in VirginiaWhen a driver is arrested for a DUI in Virginia, the police can impound the vehicle if it is not parked in a safe location and the offender is responsible for the costs of the impoundment. For more information on impoundment of vehicles after DUI arrests in Virginia and how to get a vehicle out of impoundment, click here.

Administrative License Suspension

A driver’s license will be automatically suspended when he is arrested for a DUI in Virginia with a BAC higher than .08 or for refusing to take a breathalyzer test (Va. Code §46.2-391.2). This is called an administrative suspension and will last for 7 days if it is the offender’s first DUI arrest.  For more information on administrative license suspension after an arrest for a DUI in Virginia, click here.

Implied Consent to Breathalyzer or Blood Test

Anyone arrested for a DUI in Virginia is required to take a breath or blood test under the Implied Consent law (Va. Code §18.2-268.2(A)). The Implied Consent law applies if the driver is arrested for:

Additionally, the Implied Consent law only applies if the offense occurred on a public highway and if the driver was arrested within three hours of the offense.  For more information on the implied consent law in Virginia, click here.

Breathalyzer Test and Blood Test

The easiest way to prove that an offender was under the influence of alcohol or drugs while operating a motor vehicle in Virginia is by introducing the Blood Alcohol Content (BAC) or Blood Drug Content (BDC) results from a chemical breath or blood test.  A BAC over .08 allows the Court to infer that the driver was under the influence of alcohol at the time of the offense (Va. Code §18.2-269).  Unlike PBT results, BAC results from these tests can come into evidence against the driver in a DUI trial.   For more information on the difference between Preliminary Breath Tests and Breathalyzer Tests in Virginia, click here.  For information on Breathalyzer Tests in Virginia, click here.  For more information on Blood Alcohol Content in Virginia, click here.

Breathalyzer tests are much more common than blood tests.  Blood tests are used when an officer suspects that the offender is under the influence of drugs (or a combination of drugs and alcohol), if the offender is unable to take a breath test, or if a breath test is unavailable.  The police are required to obtain a search warrant for a blood test only if unreasonable refusal of the test would result in a criminal charge (a second or third offense refusal within 10 years).

For more information on breathalyzer tests in Virginia, click here.

For more information on DUI-related blood tests in Virginia, click here.

What If I Refuse the Breathalyzer Test?

Unreasonably refusing to take the breathalyzer test or blood test will result in a charge of refusal under Va. Code §18.2-268.3.  A conviction for breathalyzer refusal is punished with automatic driver’s license revocation for 12 months without the possibility of a restricted license.  Second and third offense refusal charges within 10 years are crimes.  The offender faces jail, high fines, and his driver’s license will be suspended for three years without the possibility of a restricted license at all.

For more information on breathalyzer refusal in Virginia, click here.

Mandatory Penalties for DUI Virginia

A DUI in Virginia is a Class 1 misdemeanor.  It is punished with mandatory minimum penalties, including fines, jail time, driver’s license suspension, enrollment in Virginia ASAP, and Ignition Interlock, among others.

 

  • Fines: There is a mandatory minimum fine of $250 and the fine could be as high as $2500.
  • Jail: A DUI in Virginia is punished by up to 12 months in jail.  High Blood Alcohol Content (BAC) or driving with a minor in the car will result in mandatory minimum jail time.
  • Driver’s License Revocation: A Virginia driver’s license will be revoked for one year after being convicted of a DUI in Virginia (Va. Code §18.2-271.A).  Second and subsequent convictions within 10 years will result in longer periods of driver’s license revocation. The driver can apply for a restricted license which will allow him to drive to a limited number of places at specific times during the day.  For more information on obtaining a restricted license after a conviction for a DUI in Virginia, click here.
  • ASAP: A driver convicted of a first or second DUI in Virginia is required to enroll in and complete the Virginia Alcohol Safety Action Program (ASAP).  ASAP requires weekly classes, payment of fees, and random drug and alcohol testing.
  • Ignition Interlock: An Ignition Interlock system must be installed in any car registered in the driver’s name for at least 6 months without any violations.  For more information on Ignition Interlock requirements and penalties, click here.
  • DMV Points: The DMV will add 6 demerit points to the offender’s Virginia driving record.
  • Criminal Record: A conviction for a DUI in Virginia will remain on the offender’s permanent criminal record and can never be expunged.

Increased Penalties and Mandatory Minimum Punishments

Elevated Blood Alcohol Content, transporting a minor during the offense, and subsequent convictions add increased mandatory minimum penalties.

High Blood Alcohol Content (BAC)A DUI in Virginia with High BAC Will Result in Mandatory Jail Time and Fines

BAC readings between .15 and .20 will result in a mandatory minimum of 5 days in jail.  BAC levels higher than .20 are punished with a mandatory minimum of 10 days in jail.  Second and subsequent offenses have increased mandatory minimum jail time with a high BAC.   For more information on Blood Alcohol Content (BAC) in Virginia, click here.

Transporting Minor Under 17 Years Old

If the driver is convicted of a DUI in Virginia while transporting someone 17 or younger, there is an additional mandatory minimum of 5 days in jail and an additional mandatory minimum fine of $500 (Va. Code §18.2-270(D)).  For more information on the penalties for transporting a minor while driving under the influence in Virginia, click here.

Mandatory Penalties for Subsequent Convictions
A conviction for a second or subsequent DUI in Virginia within 5 or 10 years will have increased and mandatory minimum penalties:
  • 2nd DUI in 5 Years: A second DUI in Virginia in 5 years is punished with a mandatory minimum of 20 days in jail, a mandatory minimum fine of $500, driver’s license revocation for 3 years, ASAP, Ignition Interlock installation, and payment to the Virginia Trauma Center Fund.  For more information on the penalties for a DUI second offense in 5 years in Virginia, click here.
  • 2nd DUI in 10 Years: A second DUI in 10 years in Virginia is punished with a mandatory minimum of 10 days in jail, a mandatory minimum fine of $500, driver’s license revocation for 3 years, ASAP, Ignition Interlock, and payment to the Virginia Trauma Center Fund.  Click here for more information on the penalties for a second offense DUI in 10 years in Virginia.
  • 3rd DUI in 5 Years: A third DUI in Virginia within 5 years is a felony and is punished with a mandatory minimum of 6 months in jail, a mandatory minimum fine of $1000, indefinite driver’s license revocation, vehicle seizure and forfeiture, and payment to the Virginia Trauma Center Fund.  Click here for more information on the penalties for a third offense DUI in 5 years in Virginia.
  • 3rd DUI in 10 Years: A third DUI in Virginia in 10 years is a felony and is punished with a mandatory minimum of 90 days in jail, a mandatory minimum fine of $1000, indefinite driver’s license revocation, vehicle seizure and forfeiture, and payment to the Virginia Trauma Center Fund.  For more information on the penalties for a third offense DUI in 10 years in Virginia, click here.
  • 4th DUI in 10 Years: A fourth DUI in Virginia in 10 years is a felony punished with a mandatory minimum of 1 year in prison, a mandatory minimum fine of $1000, indefinite driver’s license revocation, vehicle seizure and forfeiture, and payment to the Virginia Trauma Center Fund.  Click here for more information on the penalties for a fourth DUI conviction in 10 years in Virginia.

Other DUI Charges in Virginia

Underage DUI:  A driver can be charged with Underage DUI in Virginia under Va. Code §18.2-266.1 if he consumed any alcohol and operated a motor vehicle or if he operated a motor vehicle with a BAC higher than .02.   For more information on charges of Underage DUI in Virginia, click here.

Commercial Driver DUI: Driving a commercial motor vehicle while under the influence of alcohol or drugs is a separate crime under Va. Code §46.2-341.24.  For more information on a Commercial Driver DUI in Virginia, click here.

DUI Maiming: If an offender causes serious bodily injury to a person resulting in permanent and significant physical impairment as a result of driving while intoxicated, he can be convicted of DUI Maiming under Va. Code §18.2-51.4.  This offense is punished with up to 5 years in prison.  For more information on a DUI Maiming charge in Virginia, click here.

DUI Involuntary Manslaughter: A driver can be charged with DUI-related Involuntary Manslaughter under Va. Code §18.2-36.1 if he caused the death of another person while driving under the influence of alcohol.  This offense is punished with up to 10 years in prison. Additionally, if the driver’s conduct showed a reckless disregard for human life, he can be charged with aggravated involuntary manslaughter.  This offense is punished with up to 20 years in prison.  For more information on DUI-related involuntary manslaughter, click here.

Other Consequences of a Conviction for a DUI in Virginia

In addition to all of the immediate penalties for a DUI in Virginia, there are a myriad of other potential consequences.  Employment and educational opportunities could be lost, security clearances can be at stake, and there could also be immigration consequences if the offender is not a United States citizen.  Most importantly, a conviction will remain on a driver’s permanent criminal record and cannot be expunged.  If the conviction is for a third or subsequent DUI, or certain other DUI charges (such as involuntary manslaughter DUI or DUI Maiming), the offender will be a convicted felon, resulting in a loss all of the rights associated with a felony conviction in Virginia.