In Virginia, driving while intoxicated (DWI) and driving under the influence (DUI) are serious criminal charges (Va. Code §18.2-266). A conviction can result in jail time, high fines, revocation of driving privilege, required alcohol education (ASAP), and required installation of an ignition interlock device. Further, an alcohol related conviction for DWI/DUI will create a permanent criminal record with collateral consequences.
The Virginia DWI law, Virginia Code §18.2-266 reads as follows:
Under the law, there are five different ways a person can be convicted of DWI/DUI.
- Driving with a blood alcohol concentration (“BAC”) higher than .08 (proven with a breath or blood test)
- Driving while under the influence of alcohol (proven by admissions and observations of physical impairment: manner, speech, disposition)
- Driving while under the influence of drugs (proven through blood tests and admissions)
- Driving while under the combined influence of alcohol and drugs (proven with breath and blood tests)
- Driving with specific amounts of particular drugs (proven with blood tests)
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)). 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.
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. On a second offense the administrative suspension last 60 days and on a third or subsequent offense the administrative suspension lasts until the date of trial.
What If I Refuse the Breathalyzer Test?
Unreasonably refusing to take the breath or blood test will result in a charge of refusal under Va. Code §18.2-268.3. A conviction for refusal results in a civil violation on a person’s driving record and is punished with automatic driver’s license revocation for 12 months without the possibility of obtaining a restricted license. Second and third offense refusal charges within 10 years are misdemeanor offenses punishable up to 12 months in jail, up to $2500 fine. Moreover, his driver’s license will be suspended for 3 years without the possibility of a restricted license.
What does the prosecutor have to prove?
To be convicted of a DWI or DUI in Virginia, the Commonwealth must prove the offender was:
- operating a motor vehicle
- while intoxicated or under the influence
- of alcohol or drugs
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. Moreover, if an individual is in the driver’s seat of a vehicle and the keys are in the ignition the court will likely find operation. See Enriquez v. Commonwealth (2012)
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.”
A driver is under the influence if alcohol or drugs have impaired his ability to safely operate a motor vehicle. “Under the influence” means the offender drank enough alcohol or consumed enough drugs to observably affect his speech, manner, muscular movement, disposition, behavior, or general appearance. The 4th Circuit of Appeals has held this requires a showing of physical impairment resulting from intoxication, as opposed to just looking or smelling intoxicated. See US v. Brown (2005).
Additionally, a blood alcohol concentration higher than .08 in Virginia creates a permissive inference the driver was under the influence at the time of the offense (while intoxicated), 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 other words, at blood alcohol levels below .15 the court isn’t required to find intoxication but is allowed to.
But what if there was no chemical breath or blood test? Admission 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 the driving behavior that led to the initial stop can all be used as evidence a driver was under the influence of alcohol.
In Virginia, the prosecutor must prove 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. Breath alcohol and blood tests are commonly used not only as proof that substances were in the driver’s system, but that the levels were high enough to show the driver was under the influence at the time he was operating a motor vehicle.
Challenges to DUI arrests
Reasonable Articulable Suspicion
The United States and Virginia Constitutions protect individuals from unreasonable seizures, namely that the police can’t just stop or detain people without a justifiable reason. If a police officer activates his emergency equipment (lights and sirens) to stop a driver’s vehicle he is seizing (even if only temporarily) the driver and the vehicle. If the police officer cannot articulate a justifiable reason for stopping the vehicle the court will make a finding the seizure (traffic stop) is unconstitutional and likely, the entire DWI prosecution will be dismissed. Committing a traffic infraction in the police officer’s presence will give the officer reasonable articulable suspicion. If the basis of the stop is irregular driving such as driving at a slow speed or weaving with the lane, the police officer will have to make a greater showing for the court to find reasonable articulable suspicion. See Neal v. Commonwealth. Police officers are not allowed to stop vehicles based on “hunches” of criminal behavior or people “looking suspicious.”
Beyond reasonable articulable suspicion, in order for the driver to be arrested for DWI the police must have probable cause the driver was impaired. Police officers establish probable cause for a DWI arrest based on their observations including: erratic driving behavior (i.e. swerving over lines, driving off the road), performance on standardized field sobriety tests, results from a roadside breath test (or preliminary breath test), and other indicators of intoxication such as balance, demeanor, and other signs of physical impairment.
Standardized Field Sobriety Tests: Standardized field sobriety tests are administered by officers to assess whether the driver is impaired. The three most common field sobriety tests are the Horizontal Gaze Nystagmus (HGN) test, the nine step walk and turn, and the one leg stand. These tests were developed by the National Highway Traffic Safety Administration (NHTSA) but if administered or interpreted incorrectly are of limited usefulness and subject to challenge.
Preliminary Breath Test (PBT): The preliminary breath test is a roadside breath test administered at the scene before the driver is arrested for DWI. Police officers are allowed to use PBT results to establish probable cause but such results are not admissible to establish the merits of the government’s case. Va. Code § 18.2-267. The preliminary breath test is voluntary and a driver can refuse to take it; such refusal cannot be used against him in court.
Other Indicators: Glassy or blood shot eyes, slurred speech, general balance, odor of alcohol, and admissions to drinking can all be used to establish probable cause that the driver was impaired.
Underage DUI: A driver can be charged with Underage DWI / 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. One alcoholic beverage may be enough to reach this BAC. See BAC Calculator. This charge is sometimes referred to as “Baby DUI”.
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.
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 or 10 years if the driving results in permanent and significant physical impairment.
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.
DWI (DUI) is a Class 1 misdemeanor but carries mandatory minimum penalties. Here are the required penalties associated with DWI:
- Fines: There is a mandatory minimum fine of $250; maximum of $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 (see below).
- 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.
- 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.
- 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.
Enhanced Mandatory Penalties
Elevated Blood Alcohol Content
- 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. For second offenses the mandatory minimums for elevated BAC are doubled.
Transporting Minor Under 17 Years Old
- If the driver is convicted of a DWI / 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)).
Subsequent DWI Convictions
- 2nd DUI in 5 Years:A second DWI 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, no restricted license until after one year, and Ignition Interlock installation.
- 2nd DUI in 10 Years: A second DWI 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, no restricted license until after four months, and Ignition Interlock installation.
- 3rd DUI in 5 Years:A third DWI 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, and an indefinite driver’s license revocation.
- 3rd DUI in 10 Years:A third DWI 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, and an indefinite driver’s license revocation.
- 4th DUI in 10 Years:A fourth DWI in Virginia in 10 years is a felony punished with a mandatory minimum of 1 year in prison, a mandatory minimum fine of $1000, and an indefinite driver’s license revocation.
Beyond the immediate penalties associated with a DWI, other collateral consequences are also at play. Insurance premiums are likely to increase if convicted. Your education or employment opportunities may be hindered: if you are subject to a background check for employment, security clearance, or immigration, a DWI conviction could affect your future.
If you find yourself charged with DWI in Virginia, contact an experienced Virginia DWI attorney. An initial consultation with a TATE BYWATER attorney is complimentary. We’ll discuss your case and work with you to obtain the best possible outcome. We’re here to help!