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VIRGINIA DUI/DWI

Virginia DUI/DWI laws are complex covering over 24 sections of the Virginia Code beginning at §18.2-266 to §18.2-271.4. Virginia’s penalties for a DUI/DWI have increased in severity within the past several years to include the potential of mandatory jail time for certain types of offenses, even for those individuals with no prior criminal history. Virginia defines a DUI/DWI as the following:

It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article, (ii) while such person is under the influence of alcohol, (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, (iv) while such person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, or (v) while such person has a blood concentration of any of the following substances at a level that is equal to or greater than: (a) 0.02 milligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c) 0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood. A charge alleging a violation of this section shall support a conviction under clauses (i), (ii), (iii), (iv), or (v).

While Virginia no longer distinguishes between Driving Under the Influence and Driving While Intoxicated, the above statute outlines a subtle difference between the two forms of "drunk driving." A conviction can be obtained for Driving While Intoxicated under subsection (i) of the above statute where it is shown that the person’s blood alcohol concentration is .08 percent or greater. The two methods used by the Commonwealth to establish an individual’s blood alcohol concentration for the purpose of establishing a DWI conviction include taking a breath sample with a breathylizer machine or through a blood sample test. On the other hand, where taking a breath or blood sample is not available, a conviction for Driving Under the Influence can be obtained where it is shown that the individual has consumed enough alcohol or other substance “…to observably affect his manner, disposition, speech, muscular movement, general appearance or behavior” as outlined in Virginia Code §4.1-100. Thus, a typical DUI/DWI case can be analyzed from one of three perspectives select:

Breath Cases

Blood Cases

Refusal Cases

Since DUI/DWI cases can be very fact intensive, the key to approaching them is to know the right questions to ask and how to make sense of the evidence. An attorney who understands DUI/DWI cases will know the importance of:

• The driver’s alcohol consumption
• Basis for the officer stopping the car
• Any statements made by the driver to the officer
• The field tests conducted by the officer
• The driver’s performance on the tests
• Results of any roadside breath test
• Basis for the officer’s arrest
• The official breath test results
• Procedures followed by the officer in administering the breath test
• Compliance with Virginia Code requirements regarding breathylizer certification
• Compliance with Virginia Code requirements regarding operator certification  

The penalties for DUI/DWI cases vary depending upon the driver’s BAC as established by a blood or breath test and whether this is a DUI/DWI first or subsequent offense. The various penalties, both judicial and otherwise, can include:

• Jail
• Fine
• License suspension
• Required Alcohol and Substance Abuse Program (ASAP)
• Vehicle ignition interlock
• DMV points
• Increase insurance premiums or even policy cancellation
• DUI/DWI conviction record
• Potential negative impact on a security clearance
• Additional penalties for commercial drivers

For a detailed summary outlining the judicial penalties for a DUI/DWI conviction Select here

Individuals under the age of 21 and with a BAC between .02-.07 may be charged with a different offense referred to as a “baby dui.” For more information Select here

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