DUIs, Breathalyzer Testing, and Mandatory Minimums

Driving under the influence of drugs or alcohol (DUI) is a crime in the state of Virginia. Because it encompasses a wide variety of circumstances, Virginia DUI law can get pretty complicated very quickly.

Driving under the influence of drugs or alcohol (DUI) is a crime in the state of Virginia. Because it encompasses a wide variety of circumstances, Virginia DUI law can sometimes be more complicated than other types of crimes.

Understanding the ins and outs of Virginia DUI law can help you prepare a legal defense. Most importantly, you should contact your lawyer as soon as you’re arrested for a DUI. Failing to do so could result in fines, jail time, and the suspension of your license.

What is DUI?

On the surface, a DUI charge is actually quite simple. The Virginia Code defines DUI as driving under the influence of, or in the direct presence of, alcohol or drugs. However, the specifics of your case can often change how the charge plays out in court.

Generally, smaller amounts of alcohol or drugs in your system will result in community service and fines. Larger amounts, on the other hand, can also lead to reckless driving charges and jail time.

Alcohol

Your Blood-Alcohol Content (BAC) at the time of arrest determines whether or not the court considers you “intoxicated.” However, a prosecutor may still charge you with DUI if you refuse a BAC test but are obviously impaired. In Virginia, the legal limit varies per person:

  • If you’re over the age of 21, the limit is 0.08%
  • For individuals under the age of 21, the limit is 0.02%
  • People driving under Commercial Driver’s Licenses (CDLs) instead have a limit of 0.04%

If you are pulled over at, or above, those BAC limits, you can be arrested for DUI.

Drugs

Similar to DUIs, driving while under the effects of drugs (DUID) is also illegal in Virginia. There are actually several ways to get a DUID, but basically the law centers on taking any drug that impairs safe driving. This definition includes over-the-counter drugs as well, so you should be mindful of the side effects of any medicine you take.

The three broad reasons for a DUID charge go as follows:

  • You drove under the influence of any significantly impairing drug.
  • The officer tested you and found both drugs and alcohol in your system.
  • You were caught with small amounts of various illicit drugs in your system that combined to impair your driving.

For more specific numbers on figuring out how much is too much, check out VA Code § 18.2-266.

Open Container

In Virginia, driving with an open alcoholic beverage can result in a DUI conviction, even if your BAC is below the limit.

Although Virginia only applies its open container laws to drivers, not passengers, police officers may treat the presence of any open container in the vehicle as probable cause to investigate further.

Breathalyzer Tests

While a field sobriety test may give an officer probable cause to arrest you, Virginia law does not treat such tests as evidence in court.  Field sobriety tests can include things like walking in a straight line or saying your ABCs backwards, and really come down to the officer’s presence.

For this reason, during a DUI arrest the officer will almost always have you take a breathalyzer test to determine your blood-alcohol content.

Refusal to Submit to a Breathalyzer or Blood Test

Virginia has an “implied consent” law, meaning that you gave consent to take a breathalyzer test when you applied for a Virginia license.

Technically, implied consent only applies after an officer arrests you. However, to arrest you the officer only needs a reasonable suspicion that you’ve been drinking. For this reason, the officer will usually arrest you on the suspicion, and only then ask that you take the breathalyzer or blood test.

If you refuse to take these tests, the court can charge you with another misdemeanor on top of the DUI charge. At that point, a judge may suspend your license for up to three years in addition to your other penalties.

Administrative License Suspension (ALS)

In Virginia, there are a few cases where the court can immediately revoke your license after a DUI stop. These are called administrative license suspensions.

For example, if you’re pulled over and charged with a DUI, or even if you simply refuse a breathalyzer test, you can lose your license automatically for 7 days. For a second DUI offense before your first date in court, you’ll automatically lose your license for 60 days, or until you go to trial, whichever comes first.

Penalties and Mandatory Minimums

The state of Virginia has set a number of penalties and mandatory minimum sentences for both DUIs and DUIDs. What this means is that, if the court finds you guilty of a DUI crime, you can always expect the following penalties.

BAC less than 0.15%

  • First Offense: $250 fine, revocation of license for up to one year.
  • Second Offense: $500 fine, revocation of license for up to three years. If it has been less than ten years since your last conviction, the court must also assign 10 days to one year of jail time.
  • Third Offense (or any Felony DUI): $1000 fine, indefinite revocation of license. If it has been less than ten years since your last conviction, the court may force you to forfeit your vehicle, and will assign you a jail term of at least 90 days.
  • Further Offenses: Similar penalties to the third offense, with an added mandatory jail term of at least one year.

BAC between 0.15% and 0.20%

  • First Offense: $250 fine, revocation of license for up to one year, and a mandatory jail term of at least five days.
  • Second Offense: $500 fine, revocation of license for up to three years, and a jail term of at least ten days.
  • Third or Further Offenses: The same as the third and subsequent offenses for a BAC less than 0.15%.

BAC over 0.20%

  • First Offense: $250 fine, revocation of license for up to one year, and a jail term of at least ten days.
  • Second Offense: $500 fine, revocation of license for up to three years, and a jail term of at least twenty days.
  • Third or Further Offenses: The same as the third and subsequent offenses for a BAC less than 0.15%.

Underage DUI

Finally, any DUI offense involving a passenger under the age of 18 also carries a mandatory five day jail term and a minimum fine of $500.

Further, if the driver charged with the DUI is underage, there are other harsh penalties. Virginia currently has a zero-tolerance policy for underage drinking. If anyone under the age of 21 blows a 0.02% on the breathalyzer test, the penalties are rather harsh.

First, a judge can suspend the minor’s license for up to one year. They will also receive either a fine of at least $500 or 50 hours of community service. In addition, the penalties are given in addition to the normal penalties outlined above.

Note that in every case listed above, we’re only listing the minimum sentences. Judges can order additional time as they see fit, as well as impose several other penalties.

For example, the court may order that you must install an ignition interlock device on your vehicle. Many courts also require offenders to attend Alcohol Safety Action Program (ASAP) classes.

Conclusion

If you are arrested for DUI, it’s important to contact a lawyer as soon as possible. Mandatory minimums are exactly that, and without a lawyer you risk adding additional penalties.

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