DUI Third Offense in 5 Years in Virginia

November 29, 2015 by Jean Humbrecht

DUI third offense in 5 years in VirginiaVirginia DUI convictions have very serious, mandatory minimum penalties that can affect a driver for several years.  The more DUI convictions a driver has, the worse these penalties become.  This is the third post in a 6 part series discussing penalties for subsequent DUI convictions in Virginia.  This article focuses on the penalties for a DUI third offense in 5 years in Virginia.  It also examines the increased penalties for a DUI third offense in 5 years in Virginia coupled with breathalyzer refusal and the presence of a minor in the car.

For more information on a second Virginia DUI in 5 years, see post 1 in this series. For more information on a second Virginia DUI in 10 years, see post 2 in this series.  For more information on a third Virginia DUI in 10 years, see post 4 in this series.  For more information on a fourth Virginia DUI in 5 years, see post 5 in this series.  For more information on a fourth Virginia DUI in 10 years, see post 6 in this series.
For more general information on DUI convictions in Virginia, click here.

DUI THIRD OFFENSE IN 5 YEARS IN VIRGINIA: A FELONY

A first or second offense DUI in Virginia in 5 or 10 years is a Class 1 misdemeanor.  A third offense DUI within 5 or 10 years, however, is a FELONY.  There is a mandatory MINIMUM confinement of 6 months in jail, a mandatory MINIMUM fine of $1000, and the driver’s license will also be revoked INDEFINITELY.  This means the driver cannot drive AT ALL.  These penalties will be increased if there was a minor under 17 in the car and any penalties for a breathalyzer refusal conviction are in addition to these DUI penalties.

MANDATORY PENALTIES FOR DUI THIRD OFFENSE IN 5 YEARS IN VIRGINIA

  • JAIL: A DUI third offense in 5 years in Virginia is a Class 6 FELONY.  It is punished with up to 5 years in jail and there is a MANDATORY MINIMUM confinement of 6 months in jail.
  • FINES: A DUI third offense in 5 years in Virginia will result in a mandatory minimum fine of $1000 and the fine could be as high as $2500.
  • COURT COSTS: Anyone convicted of a DUI third offense in 5 years in Virginia must pay court costs in addition to any fines.  Failure to pay these court costs will result in driver’s license suspension.
  • DRIVER’S LICENSE SUSPENSION AND REVOCATION: The offender’s driver’s license will be administratively suspended IMMEDIATELY upon being charged with a Virginia DUI if his BAC was over .08 or if the driver is charged with breathalyzer refusal. For a third DUI in Virginia, this suspension will last until the day of trial (Va. Code §46.2-391.2).  If convicted of a DUI third offense in 5 years in Virginia, the driver’s license will be revoked INDEFINITELY.  This means the driver might not EVER be able to driver in Virginia again.  The driver can apply for a restricted license after 3 years (Va. Code §46.2-391(C)(2)) which requires the installation of an Ignition Interlock.  The driver can petition the court to restore his driving privileges after 5 years (Va. Code §46.2-391(C)(1)).  The court, however, does not have to restore anyone’s driving privileges.  Click here for more information on restoration of driving privileges after a third offense DUI in Virginia.
  • VEHICLE FORFEITURE: The driver’s car may be seized and forfeited if he is convicted of a third offense DUI in 5 years in Virginia (Va. Code §18.2-270(C)(4)).  For more information on vehicle forfeiture in Virginia after a DUI conviction, click here.
  • DMV POINTS: The Virginia DMV will add 6 demerit points to the driving record of anyone convicted of a third offense DUI in Virginia.
  • DMV RECORD: The DUI conviction will remain on the driver’s DMV record for 11 years.
  • CRIMINAL RECORD: A conviction for a third offense DUI in Virginia will remain on the driver’s PERMANENT criminal record and he will be a convicted felon.
  • VIRGINIA TRAUMA CENTER FUND: Anyone convicted of a DUI third offense in 5 years in Virginia must pay $50 to the Virginia Trauma Center Fund (Va. Code §18.2-270.01).

TRANSPORTING MINOR UNDER 17

If the driver is convicted of a DUI third offense in 5 years in Virginia while transporting someone 17 or younger, he will serve an additional mandatory 5 days in jail (Va. Code §18.2-270(D)).  There is also a mandatory minimum fine of $500 and the fine could be as high as $1000.  These penalties are in addition to any other fines or jail time resulting from the DUI conviction.  Click here for more information on the penalties for transporting a minor while driving under the influence in Virginia.

BREATHALYZER REFUSAL

A first offense breathalyzer refusal in Virginia will result in a civil penalty and is punished with driver’s license suspension for one year. Second or subsequent refusal charges are crimes.  A second offense breathalyzer refusal in Virginia is a Class 2 misdemeanor.  It is punished with up to 6 months in jail, a fine up to $1000, and the driver’s license will be suspended for 3 years.  A third offense breathalyzer refusal in Virginia is a Class 1 misdemeanor.  It is punished with up to 12 months in jail, a fine up to $2500, and driver’s license suspension for 3 years.  The driver is not able to have a restricted license AT ALL during any suspension for a breathalyzer refusal conviction.

Va. Code §18.2-268(3) states that a driver can be charged with a second or third offense breathalyzer refusal in Virginia if he has had ANY combination of DUI or refusal convictions within 10 years.  This means that a driver can be convicted of a second of third offense refusal even if he has had no prior refusal convictions.  A driver can be be charged with a third offense refusal if that driver has a combination of:

  • 2 prior refusal convictions
  • 1 prior DUI conviction and 1 prior refusal conviction
  • 2 prior DUI convictions and NO PRIOR refusal convictions

This means that a driver charged with a DUI third offense in 5 years in Virginia and breathalyzer refusal will be charged with a third offense refusal, even if it was the driver’s first actual refusal charge.  Any jail time, fines, and the mandatory driver’s license suspension resulting from a refusal conviction will be IN ADDITION TO any penalties imposed due to the DUI conviction.

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

PENALTIES FOR DUI THIRD OFFENSE IN 5 YEARS IN VIRGINIA

DUI Third Offense in 5 Years in Virginia 

  • MINIMUM
    • 6 months jail
    • $1000 fine (plus court costs)
    • Payment to the Virginia Trauma Center Fund
    • Vehicle seizure and forfeiture
    • Indefinite license revocation
      • 3 years before driver can apply for restricted license
      • 5 years before driver can apply for restoration of driving privileges
  • MAXIMUM
    • 5 years prison
    • $2500 fine (plus court costs)
    • Payment to Virginia Trauma Center Fund
    • Vehicle seizure and forfeiture
    • Indefinite license revocation
      • 3 years before driver can apply for restricted license
      • 5 years before driver can apply for restoration of driving privileges

DUI Third Offense in 5 Years in Virginia, First Offense Breathalyzer Refusal

  • MINIMUM
    • 6 months jail
    • $1000 fine (plus court costs)
    • Payment to Virginia Trauma Center Fund
    • Vehicle seizure and forfeiture
    • Indefinite license suspension
      • 6 years before driver can apply for restricted license
      • 6 years years before driver can apply for restoration of driving privileges
  • MAXIMUM
    • 6 years prison
    • $5000 fine (plus court costs)
    • Payment to Virginia Trauma Center Fund
    • Vehicle seizure and forfeiture
    • Indefinite license revocation
      • 6 years before driver can apply for restricted license
      • 6 years before driver can apply for driver’s license restoration

DUI Third Offense in 5 Years in Virginia, Transporting Minor

  • MINIMUM
    • 6 months, 5 days jail
    • $1500 fine (plus court costs)
    • Payment to Virginia Trauma Center Fund
    • Vehicle seizure and forfeiture
    • Indefinite license revocation
      • 3 years before driver can apply for restricted license
      • 5 years before driver can apply for restoration of driving privileges
  • MAXIMUM
    • 5 years jail
    • $2500 fine (plus court costs)
    • Payment to Virginia Trauma Center Fund
    • Vehicle seizure and forfeiture
    • Indefinite license revocation
      • 3 years before driver can apply for restricted license
      • 5 years before driver can apply for restoration of driving privileges

DUI Third Offense in 5 years in Virginia, Transporting Minor, First Offense Breathalyzer Refusal

  • MINIMUM
    • 6 months, 5 days jail
    • $1500 fine (plus court costs)
    • Payment to Virginia Trauma Center Fund
    • Vehicle seizure and forfeiture
    • Indefinite license revocation
      • 6 years before driver can apply for restricted license
      • 6 years before driver can apply for restoration of driving privileges
  • MAXIMUM
    • 6 years prison
    • $5000 fine (plus court costs)
    • Payment to Virginia Trauma Center Fund
    • Vehicle seizure and forfeiture
    • Indefinite license revocation
      • 6 years before driver can apply for restricted license
      • 6 years before driver can apply for restoration of driving privileges

 

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