Last updated on May 23rd, 2019
In Virginia, driving under the influence (DUI) is a criminal offense that can affect more than just your driving privileges. If you’re convicted of DUI you could lose your job, your license, and possibly your freedom.
However, not all DUI charges lead to convictions, and there are actually several ways you can fight the charges against you.
In this ultimate guide, we’ll discuss everything you need to know about DUI arrests, convictions, and penalties in Virginia.
- DUI and DWI Laws in Virginia: The Basics
- What are the Penalties for DUI and DWI in Virginia?
- Penalties for Special Cases of DUI
- Hit and Run While Driving Under the Influence
- What to do After Being Arrested for DUI in Virginia
- How to Fight a DUI Charge in Virginia
DUI and DWI Laws in Virginia: The Basics
Virginia’s DUI laws can be summarized in a few key points:
- Virginia’s DUI laws apply to both drugs and alcohol.
- You can be charged with DUI even if you have a blood alcohol concentration (BAC) that’s lower than the legal limit (0.08%).
- Virginia uses a “zero tolerance” law to punish minors who drive while under the influence of alcohol.
- It is illegal to refuse to take a breathalyzer test in Virginia after being arrested, or if the refusal is deemed to have been unreasonable.
- The DMV will either suspend or revoke your license after you’re arrested and charged with DUI.
We’ll explain each of these points in more detail below.
Virginia Code § 18.2-266 – Driving Under the Influence of Drugs or Alcohol
At their most basic level, Virginia’s DUI laws are actually quite simple.
Specifically, the Virginia Code makes it illegal for any person to drive or operate a vehicle:
- While they have a blood alcohol concentration (BAC) of 0.08 percent or more (or have more than 0.08 grams or more per 210 liters of breath as indicated by a breathalyzer test).
- While “under the influence of alcohol” (i.e. driving while intoxicated to the degree that it impairs their ability to drive).
- While under the influence of any drug, legal or illegal, or any combination of drugs, “to a degree which impairs [their] ability to drive.”
- While under the influence of a combination of both drugs and alcohol to a degree which impairs their ability to drive.
- While they have a blood alcohol concentration (BAC) of any of the following substances at a level equal to or greater than:
- 0.02 milligrams of cocaine per liter of blood.
- 0.1 milligrams of methamphetamine (“Meth”) per liter of blood.
- 0.01 milligrams of phencyclidine (“PCP”) per liter of blood.
- 0.1 milligrams of 3,4-Methylenedioxymethamphetamine (“Ecstasy”) per liter of blood.
- 0.02 milligrams of cocaine per liter of blood.
As you can see, while two of these laws note specific BAC levels which can lead to a DUI conviction, the Virginia Code allows for the arrest and conviction of any individual who drives while significantly impaired by alcohol or drugs.
Legal Limits and BAC in Virginia
As noted above, your blood alcohol concentration (BAC) is the main factor that determines whether you are driving under the influence of alcohol.
As you can see in points (2), (3), and (4) above, operating a vehicle while “impaired” is enough to arrest someone for DUI. This applies to alcohol, drugs, and any combination of the two.
Generally, the officer will pull you over and arrest you on the suspicion that you are driving under the influence. If their testing equipment then shows that you have a BAC of 0.08 percent or more, that reading is sufficient evidence to convict you of DUI by itself.
On the other hand, if your BAC is lower than the legal limit, the Commonwealth Attorney will instead have to show that you were significantly impaired by drugs or alcohol for the charges to stick.
Generally, they will do so through a combination of several pieces of evidence, such as testimony from the officer, dashcam footage, or an abnormally high (though not illegal) BAC level (such as 0.06 or 0.07 percent).
Virginia’s Zero Tolerance Law
You should also note that Virginia uses a “zero tolerance” law to punish minors who choose to drink and drive.
There are essentially 3 key differences between this law and Virginia’s normal DUI law:
- The zero tolerance law only applies to minors who illegally consume alcohol.
- The legal limit for minors is 0.02%. However, any amount of alcohol in their system can result in DUI charges.
- The penalties for violating this section are lower and include a $500 fine or community service in addition to the normal license revocation.
It’s also important to note that this Code section only applies to minors who have a BAC of between 0.02 and 0.08 percent.
If, for example, a 20-year-old was arrested with a BAC of 0.11, they would most likely be charged under the normal DUI statute.
Field Sobriety Tests and Breathalyzer Testing
If an officer pulls you over in Virginia on the suspicion of DUI, they may ask you to perform a series of field sobriety tests. These tests can range from saying your ABCs to walking in a straight line.
The officer can use the result from this test as probable cause to arrest you, but the results of the field sobriety test without additional evidence will likely not be sufficient to
For this reason, the officer will almost always ask you to take a breathalyzer or blood test to find out what your current BAC level is.
You should note that there is a distinction between taking a test before and after being arrested in Virginia.
If an officer tries to give you a preliminary breathalyzer test before charging you with DUI, you have the right to refuse this test.
However, after an officer charges you with DUI, the Virginia Code states that you must consent to breathalyzer or blood testing to determine the drug or alcohol content of your blood. This is called the “implied consent” law.
The “implied consent” law state that by driving on Virginia roads you are consenting to blood or breathalyzer testing if you are pulled over for DUI. In a way, the act of driving itself implies consent.
In this way, you should remember that it is outright illegal to refuse breathalyzer or blood testing after an arrest. For a first offense, doing so could result in the loss of your license for 12 months in addition to any other penalties related to the original DUI charge.
DUI Convictions and License Suspension
Many people don’t realize that the court can immediately suspend your license after you’re arrested for DUI.
This is called an Administrative License Suspension (ALS), and it usually lasts for either a week for a first offense (60 days for a second offense) or until the date your trial, whichever comes first.
Similarly, if a judge convicts you of DUI they will also either suspend or revoke your license.
If you’re convicted of DUI in Virginia, the effect this conviction will have on your license will depend on how many offenses you’ve committed:
- First offense of DUI – License suspension for 12 months
- Second offense of DUI – License suspension for 3 years
- Third or subsequent offense of DUI – Indefinite license revocation (minimum of 3 years for a restricted license and 5 years to reapply for a full license)
What are the Penalties for DUI and DWI in Virginia?
The penalties for driving under the influence in Virginia depend on many factors, such as the driver’s age, BAC level, and their number of prior convictions.
However, the two most important are your age and whether or not this is your first offense.
In almost every case, a DUI conviction will lead to at least a fine, the loss of your license, driving safety classes, and either jail time or community service.
If you’re a visual learner, check out our infographic on DUI Penalties in Virginia.
What are the Penalties for a First Offense of DUI?
Virginia is tough on drinking and driving, even if it’s your first offense.
The first DUI conviction is a Class 1 misdemeanor, which means a fine of up to $2,500 and/or up to 12 months in jail. As noted above, you will also lose your driving privileges for 7 days after your arrest.
After a conviction for DUI, the judge may also assign additional penalties to your sentence, such as:
- Suspending your driver’s license for up to 1 year.
- Requiring that you take classes through the Virginia Alcohol Safety Action Program (VASAP).
- Assing you community service.
- Requiring the installation of an Ignition Interlock Device (IID) in your car for at least 6 months.
While the actual penalties you’ll face will depend heavily on the specifics of your case, your sentence will usually include the mandatory license suspension, the installation of an IID in your vehicle, and enrolment in VASAP classes.
Additionally, you should note that VASAP normally costs around $400 to complete in full, in addition to any other fines the judge may assign.
What are the Penalties for a Second Offense of DUI?
The penalties for a second conviction of DUI will depend on how long it’s been since your first conviction.
If you are convicted of a second offense of DUI, you will most likely face all of the following:
- The judge will suspend your driver’s license for at least 3 years.
- A fine of at least $500.
- A prison sentence of between 30 days and 12 months.*
- Mandatory Virginia Alcohol Safety Action Program (VASAP) classes.
- The installation of an Ignition Interlock Device (IID) after you regain your license.
If this is your second offense in 5 years, you’ll also have a mandatory jail sentence of 20 days. If it’s been between 5 and 10 years since your last offense, you’ll face a minimum of 10 days in jail.
* There is a difference between the sentence a judge assigns you and the actual amount of time you’ll spend in jail.
For example, they could assign you a sentence of 30 days with 20 suspended, leaving you with only 10 days in jail, as per the mandatory minimum referenced in the paragraph above.
What are the Penalties for a Third or Subsequent Offense of DUI?
If you’re convicted of three instances of DUI within 10 years, the charge becomes a Class 6 felony. If you’re convicted, you can expect the following penalties:
- A mandatory, indefinite revocation of your license.
- A fine of between $1,000 and $2,500.
- A mandatory jail sentence of between 90 days and 5 years (depending on the case).
- Mandatory participation in VASAP classes.
- The loss of certain rights, such as the right to vote or own firearms.
For any offense after the third, you’ll have to spend a mandatory minimum of 1 year in jail.
Penalties for Special Cases of DUI
In addition to the normal penalties outlined above, the Virginia Code also lists several penalties for special cases of DUI. We’ll outline each of these special cases below.
Additional Penalties for Higher BAC Levels
The BAC legal limit for alcohol is 0.08%. However, if you’re caught with a significantly higher BAC, you will face several penalties in addition to the ones listed in the section above.
For a BAC of between 0.15% and 0.20% you’ll face:
- First Offense: A mandatory fine of $250, the revocation of your license for up to one year, and a mandatory jail term of at least 5 days.
- Second Offense: A mandatory fine of $500, the revocation of license for up to three years, and a jail term of at least 10 days.
If your BAC is higher than 0.20% the consequences are slightly higher:
- First Offense: A mandatory fine of $250, the revocation of your license for up to one year, and a jail term of at least 10 days.
- Second Offense: A mandatory fine of $500, the revocation of your license for up to three years, and a jail term of at least 20 days.
Penalties for Violating Virginia’s “Zero Tolerance” Law
As stated earlier, it only takes a trace of alcohol for someone under the age of 21 to be charged with DUI in Virginia. After all, they’re under the drinking age and can’t legally drink in the first place.
Violating Virginia’s zero tolerance law is a Class 1 misdemeanor, punishable with:
- The loss of their driving privileges for up to 1 year.
- A $500 minimum fine or 50 hours of community service.
- 6 demerit points on their driving record.
Getting an underage DUI is serious. It’s a criminal charge that can stay on your record forever. A DUI on your record can affect future opportunities such as getting a loan, applying for a
If you’re charged with an underage DUI, you’ll want to get a lawyer to help you reduce the charges as much as possible.
Out-of-State DUI Consequences
If you receive a DUI in Virginia, but you live in a different state, the state of Virginia can revoke your driving privileges. However, they can only suspend your privileges in Virginia, not in your home state. Also, the officer can’t immediately take away your physical license (the card), like they can for a Virginia resident.
It’s important to note, however, that the Virginia Department of Motor Vehicles can communicate the DUI charge and resulting suspension to your home state. The DMV in your home state can then decide what actions to take against you.
If you’re a Virginia resident, and you get a DUI in a different state, that state will likely inform the Virginia DMV about the charge. In most cases, the court will suspend your license in Virginia as well.
However, you may be able to fight the charges if the DUI laws in the other state are different or more stringent than Virginia’s laws. If you decide to fight an out-of-state DUI charge, it’s important to consult a lawyer to discuss your options.
Virginia DUI Convictions and Commercial Driver’s Licenses (CDLs)
Finally, it’s important to note that Virginia’s DUI laws are much harsher for individuals who hold commercial driver’s licenses.
For example, while the normal “legal” BAC level is 0.08% in Virginia, CDL drivers can receive a DUI with a BAC of 0.04% or more. Additionally, if a CDL driver is convicted of driving under the influence more than once they can lose their CDL forever.
In a similar
Hit and Run While Driving Under the Influence
In Virginia, a
If you’re involved in an accident and then leave the scene (also called “hit and run”), you will be charged with a crime.
If you’re under the influence of drugs or alcohol at the time of the accident, you’ll face charges for both hit and run and DUI. This can result in a
DUI leaving the scene of an accident can also result in other serious charges as well. These can include reckless driving, bodily harm, or vehicular homicide.
Liability for Getting into an Accident While Intoxicated
According to the Virginia Department of Motor Vehicles, you have a 1 in 6 chance of getting into an alcohol-related crash sometime in your life. Therefore, you should understand the consequences of an accident while driving under the influence.
An accident while intoxicated could result in DUI, reckless driving, and bodily harm charges. The charges will depend on the level of damage or injury, and the driver’s BAC. Also, the charges for an alcohol-related crash will be harsher if you’ve had a previous DUI.
What to do After Being Arrested for DUI in Virginia
The DUI laws in Virginia are tough, but judges have some discretion in sentencing.
The judge in your case will listen to your argument and consider all the factors in your case before reaching a decision about your punishment. That’s why the first steps you take after your DUI arrest are crucial.
Step 1: Avoid Common DUI Mistakes
Virginia has some of the harshest penalties for DUI in the country, so you’ll want to avoid giving up your case before it even begins.
There are several common mistakes you should avoid both during and after your arrest for driving under the influence.
- Don’t talk to the police about your case without an attorney present,
- Don’t refuse to take a breathalyzer test after being arrested, and
- Always treat DUI as a serious crime that will affect your life for years to come.
Step 2: Speak with a Lawyer Immediately
Even the Virginia Department of Motor Vehicles recommends hiring a lawyer, especially if this is your third offense, or if you have a history of traffic violations.
A lawyer will help you understand the charges against you, what penalties you face, and what your options are for fighting them and getting the charges reduced.
Most criminal defense attorneys offer free consultations, so there is very little risk in asking for advice about your case.
Step 3: Understand Your Administrative License Suspension
As we stated earlier, the court will likely suspend your license immediately after your arrest. If you are charged with DUI in Virginia, the officer will take your physical license card away and forward it to the court.
However, if you have an out-of-state driver’s license, you will get to keep the physical driver’s license with the understanding that you cannot drive during the suspension period.
It is incredibly important that you avoid driving during your administrative license suspension.
Even if you have to get to work or school, driving without a license is a serious crime in Virginia that will only make your situation worse.
Step 4: Go to Your Arraignment
After you’re arrested and charged with DUI, you may be released on bail or recognizance prior to your arraignment. Whether you are released depends on the seriousness of the charge, whether you’re a repeat offender, and whether they see you as a flight risk.
If you are released prior to your arraignment, it’s with the understanding that you will show up in court on your arraignment date.
If you don’t show up for your arraignment, the court will issue a warrant for your arrest. In this case, you’ll be arrested and will need to file a request with the court to release you on bond again.
This will require proof that you will not fail to appear again, or a compelling argument explaining why you did not appear for your previous court hearing.
Step 5: Prepare Your Defense
If you were wise enough to contact a lawyer right after your DUI arrest, you will already have a strategy for fighting the charges against you.
After you go to your arraignment, listen to the charges, and make your plea, you and your lawyer will have the information you need to consider your options and what defense you will make.
For example, your lawyer may advise you to make a plea deal to try and reduce the charges. Alternatively, there may have been violations of the rules of evidence and procedure at the time of the arrest that can fuel a strong argument at trial.
Whatever your defense, the judge will set the date for your trial at the arraignment, and your lawyer will help navigate you through your options.
How to Fight a DUI Charge in Virginia
There are many ways you can fight a DUI charge in Virginia, from making a plea deal to challenging the arrest itself.
The specific strategy you choose will depend heavily on your case, but we’ll list a few of the most common defenses below.
Presumption of Guilt in Virginia
The Virginia Code states that if you take a breathalyzer test in Virginia, and your BAC comes up as 0.08% or higher, there is a “rebuttable presumption” that you are guilty of driving under the influence of alcohol.
Essentially, this means that this test is sufficient evidence to convict you of DUI by itself. Put another way, instead of the prosecution proving that you were driving under the influence, you need to show that the test itself was wrong in some way.
For example, you could challenge the accuracy of the breathalyzer machine or the reliability of a field sobriety test, or state that your BAC was lower when you were driving than it was when you took the breath test.
Understanding Arrest Procedures
Police officers in Virginia
- They must have a reason to stop you (such as if you were driving erratically or speeding).
- They must have some reason to believe you were drinking (such as smelling alcohol on your breath, or if you fail
a fieldsobriety test or preliminary breathalyzer test).
- The officer must read you your rights after detaining or arresting you.
Also, remember that the police must have probable cause (direct evidence) that a crime has been committed before they can search your person or your vehicle.
If the police ask to search your vehicle without probable cause, you should politely refuse.
Striking a Plea Deal
More than 90% of all cases in Virginia end as a result of a plea bargain. Most cases of DUI also follow this trend, as many individuals choose to make a plea deal instead of fighting the charges in court.
Negotiating a felony to a lower misdemeanor charge or trying to get a charge dismissed through a plea deal can be a wise decision.
There are three common ways that a charge can be negotiated:
- Negotiating a reduced sentence.
- Negotiating a reduced charge.
Of course, it’s better to come from a position of strength. If your lawyer can show that you have a good case for possible dismissal or leniency, you have a better chance of making a deal with the prosecutor.
The plea bargain can happen at any time (even right before the trial) and can be either formal (in writing) or informal (an impromptu conference).
Virginia DUI laws are tough, even if you’re a first-time offender. The penalties for drinking and driving depend on many factors, including the driver’s age, BAC, and the number of previous convictions.
If you’re charged with driving under the influence in Virginia, you need to take the charges seriously and hire a lawyer to help you.
A lawyer will make sure that the officer followed proper procedure in your arrest. They also may be able to negotiate a lesser charge or lighter sentence, depending on the circumstances of the arrest.