Va. Code §18.2-266.1 is the Underage Driving Under the Influence (DUI) statute in Virginia. It states that a driver under the age of 21 can be convicted of Underage DUI in Virginia if he operated a motor vehicle after illegally drinking alcohol or if he had a Blood Alcohol Content (BAC) higher than .02 but less than .08.
The difference between Underage DUI in Virginia (Va. Code §18.2-266.1) and a DUI (Va. Code §18.2-266) is that an offender can be convicted of Underage DUI simply by evidence that he drank any alcohol and operated a motor vehicle, whereas a conviction for a DUI requires proof of actual impairment or a BAC at a level that infers impairment (.08 or higher). For more information on a Virginia DUI under Va. Code §18.2-266, click here.
Proof of Underage DUI in Virginia
To convict an offender of Underage DUI in Virginia under Va. Code §18.2-266.1, the Commonwealth must prove that the offender either illegally consumed alcohol (that he was less than 21 years old and drank alcohol) and operated a motor vehicle or had a BAC higher than .02 but less than .08 and operated a motor vehicle. BAC evidence can be introduced through breathalyzer test results. If there is no proof of a BAC, the offender can be convicted simply by proof that he drank any alcohol and proof that he drove. The Commonwealth does not need to prove impairment to convict an offender of an Underage DUI in Virginia. The Commonwealth must also prove that the offender was under 21.
Implied Consent to Breathalyzer or Blood Test
The Implied Consent Law (Va. Code §18.2-268.2) requires all drivers in Virginia to submit to a breath or blood test after being arrested for a DUI or Underage DUI. An unreasonable refusal to take a breath or blood test is a separate offense (Va. Code §18.2-268.3) that is punished with 1 year of driver’s license suspension with no possibility of a restricted license.
Penalty for Underage DUI in Virginia
Once a driver is arrested for Underage DUI in Virginia, his driver’s license will be administratively suspended for 7 days if he had a BAC higher than .02 or if he refused a breathalyzer test (Va. Code §46.2-391.2(A)(i)). The administrative suspension period increases to 60 days for a second offense or until the day of trial for a third or subsequent offense. For more information on administrative license suspension in Virginia after a DUI arrest, click here.
Underage DUI in Virginia (Va. Code §18.2-266.1) is a Class 1 misdemeanor. The driver will be punished with either a mandatory minimum fine of $500 or a mandatory minimum of 50 hours of community service and his driver’s license will be forfeited for one year. Additionally, the DMV will add 6 demerit points to the offender’s Virginia driving record. The driver is eligible to participate in the Virginia Alcohol Safety Action Program (ASAP) and may petition the court for a restricted license. Granting the offender a restricted license is up to the discretion of the judge.
For more information on obtaining a restricted license in Virginia after a DUI conviction, click here.
Underage DUI in Virginia: The Statute (Va. Code §18.2-266.1)
A. It shall be unlawful for any person under the age of 21 to operate any motor vehicle after illegally consuming alcohol. Any such person with a blood alcohol concentration of 0.02 percent or more by weight by volume or 0.02 grams or more per 210 liters of breath but less than 0.08 by weight by volume or less than 0.08 grams per 210 liters of breath as indicated by a chemical test administered as provided in this article shall be in violation of this section.
B. A violation of this section is a Class 1 misdemeanor. Punishment shall include (i) forfeiture of such person’s license to operate a motor vehicle for a period of one year from the date of conviction and (ii) a mandatory minimum fine of $500 or performance of a mandatory minimum of 50 hours of community service. This suspension period shall be in addition to the suspension period provided under § 46.2-391.2. The penalties and license forfeiture provisions set forth in §§ 16.1-278.9, 18.2-270 and 18.2-271 shall not apply to a violation of this section. Any person convicted of a violation of this section shall be eligible to attend an Alcohol Safety Action Program under the provisions of § 18.2-271.1 and may, in the discretion of the court, be issued a restricted license during the term of license suspension.
C. Notwithstanding §§ 16.1-278.8 and 16.1-278.9, upon adjudicating a juvenile delinquent based upon a violation of this section, the juvenile and domestic relations district court shall order disposition as provided in subsection B.