The Virginia DUI Guide

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I just got arrested for a Commonwealth of Virginia DUI charge.  What happens now?

 

ISSUE ONE:  The Virginia Implied Consent / Administrative License Suspension Proceeding:  Under Virginia law, any person who operates a motor vehicle upon a highway in the Commonwealth of Virginia shall be deemed, as a condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, if he is arrested for violation of Virginia’s DUI statute or of a similar ordinance within three hours of the alleged offense.  This law is known as Virginia's implied consent statute.

 

Pursuant to Virginia implied consent law, your Virginia license (or your right / privilege to drive in Virginia if you're not a Virginia license driver) was most likely suspended for anywhere from seven to 60 days for failing (BAC 0.08 percent or greater) or refusing a breath test. 

 

You may challenge this suspension by filing a "motion for review of administrative suspension of driver's license / driving privilege" with the general district court.  Keep in mind that filing the motion does not mean the suspension will be overturned; rather it means that the suspension may be overturned.  Also, this motion and has nothing to do with the DUI charge itself (see below). 

 

ISSUE TWO:  The Virginia DUI / Refusal Offense:  Separate from the administrative license suspension proceeding is the criminal charge for driving under the influence or DUI and / or the charge of refusal to submit.

 

The charge of DUI.  Under Virginia law, it is unlawful for any person to drive or operate any motor vehicle, engine, moped, or train if:

  • you have blood alcohol concentration (BAC) of 0.08 percent or more; or

  • while you are under the influence of alcohol; or

  • while you are under the influence of any narcotic drug(s) or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs your ability to drive or operate any motor vehicle, engine or train safely; or

  • while you are under the combined influence of alcohol and any drug or drugs to a degree which impairs your ability to drive or operate any motor vehicle, engine or train safely.

Each year, about 31,000 people are convicted of DUI offense in Virginia.

 

The charge of Refusal to Submit.  It is also unlawful for a person who is arrested for a violation of Virginia DUI laws or of a similar ordinance to unreasonably refuse to have samples of his blood or breath or both blood and breath taken for chemical tests to determine the alcohol or drug content of his blood as required by Virginia implied consent law.   A first violation is a civil offense and a second or greater violation is a misdemeanor offense.

 

It is unlawful for minors (persons under 21 years of age) to drive or operate a motor vehicle with a BAC of 0.02 percent or more.

 

Important:  The implied consent / administrative license suspension proceeding and the criminal DUI / refusal to submit case are completely separate from one another. 

 

Will my Virginia driver license be revoked / suspended?

 

RELATED TO ISSUE ONE ABOVE:  Your Virginia driver license (or your right to drive in Virginia if you do not have a valid Virginia license) may be suspended in the administrative license suspension for failing or for refusing a chemical test.  This suspension generally lasts from seven to sixty days.  Again, you may challenge this administrative suspension by filing a motion with the court.  Filing the petition will not necessarily overturn the suspension; rather, it merely provides with a chance to overturn the suspension.

 

 

 

RELATED TO ISSUE TWO ABOVE:  If you are convicted of the Virginia DUI charge, you will also lose your license (or your right / privilege to drive in Virginia if you don't have a valid Virginia license) for a year or more.  This revocation is separate and distinct from the statutory summary suspension.  Talk to your Virginia DUI lawyer for possible suspension and revocation lengths for your situation.

For a first refusal to submit conviction the court will also suspend your driving privileges for one year. This suspension period is in addition to the implied consent / administrative suspension period.

Also keep in mind that your license can be suspended for a variety of reasons unrelated to a VA DUI arrest e.g. reckless driving, drug offenses, eluding a police officer etc.

 

What is the difference between a DUI, DWI, OWI, DUII, DWAI, OUI, OUIL, etc.?

 

These terms are all acronyms that refer to the offense commonly known as "drunk driving."  Different states have different names for the crime.  For example, in New York the charge is known as driving while intoxicated or DWIOhio uses the term OVI; Oregon uses DUII (driving under the influence of an intoxicant).

Virginia law refers to both driving . . . while intoxicated (DWI) and driving . . . under the influence (DUI). 
§ 18.2-266.  The terms refer to the same crime.  The terms DWI and DUI are used interchangeably in Virginia and throughout this website.

What happens if I get caught driving on a suspended license / driving after forfeiture of license?

 

Driving while your license is suspended or revoked for a Virginia DUI offense should be avoided as it is a new crime.  Penalties include fines, jail time, and an additional license suspension or revocation.  A third offense of driving after forfeiture of license within 10 years is generally charged as a felony crime with a potential prison sentence and a substantial fine.

 

I really need to drive.  Will I be able to get a restricted / occupational / conditional / probationary permit?

If your driving privileges are suspended or revoked by the court for a Virginia DUI offense, Virginia law may permit you to petition the court for restricted driving privileges on or after the conviction date.  For a first DUI conviction, the court may grant restricted driving privileges at the time of your conviction.  For a second DUI conviction, the court may grant restricted driving privileges after one year waiting period, if your second DUI offense was within the five years of your first DUI.  If your second DUI conviction is between five and ten years from your first conviction, there is a four month waiting period before the court may grant you restricted driving privileges.  For a third DUI conviction, the court has the authority to grant restricted driving privileges after three years.

How important is my breath / blood test result?

If you have a trial, your chemical test result will be one of the primary pieces of evidence used to prove impairment.  The higher your blood / breath alcohol content (BAC), the more difficult it is to beat the DUI charge.  If you are convicted of the DUI offense, BAC's greater than 0.15 percent and 0.20 percent can result in greater penalties.  Refer to the table below.

In addition, Virginia law directs that certain presumptions are made based on your blood / breath alcohol content.  Under Virginia law, if your BAC measures 0.05 percent or less, it shall be presumed that you were not under the influence of alcohol intoxicants at the time of the alleged offense.  If your BAC measures in excess of 0.05 percent but less than 0.08 percent, such facts will not give rise to any presumption that you were or were not under the influence of alcohol intoxicants at the time of the alleged offense, but the chemical test result may be considered with other competent evidence in determining your guilt or innocence.  If your BAC measures 0.08 percent or greater, is presumed that you were under the influence of alcohol intoxicants at the time of the alleged offense.

Is a DUI / DWI offense in Virginia a misdemeanor or felony charge?

 

In Virginia, a DUI is usually a misdemeanor crime.  However, a third or greater DUI offense within 10 years is a felony crime.  Felony DUI offenses are quite serious and carry the possibility of significant jail or prison time.  A first refusal to submit charge is a civil (non-criminal offense).  A subsequent refusal to submit is a misdemeanor crime.

 

What type of penalties might I face if I am convicted of a Virginia DUI charge?

 

Upon conviction of an Virginia DUI offense, a defendant can receive a variety of penalties including a requirement to enter and complete the Virginia Alcohol Safety Action Program (VASAP).  A range of minimum penalties is set forth below: 

 


VIRGINIA DUI / DWI PENALTY CHART

VA CONVICTION TYPICAL SENTENCING PENALTIES
FIRST DUI OFFENSE
(misdemeanor)
  • for BAC under .15 %, jail possible but not required;
  • for BAC of 0.15 % or greater see Note 2 below;
  • one year Virginia license revocation;
  • ignition interlock required for BAC of .15 % or greater;
  • $250+ fine.
SECOND DUI OFFENSE
(misdemeanor)
  • if your prior conviction is within 5 - 10 years of current conviction, at least 10 days jail (if your BAC is .15% or greater see Note 3 below);
  • if your prior conviction is within the past 5 years, at least 20 days jail (if your BAC is .15% or greater see Note 3 below);
  • three year Virginia license revocation;
  • ignition interlock device required;
  • $500+ fine.
THIRD DUI OFFENSE
Three offenses within 10 years
(felony)
  • at least 90 days jail; however . . .
  • if its your third conviction within the past 5 years, at least 6 months jail required;
  • indefinite Virginia license revocation;
  • ignition interlock device required;
  • $1000+ fine.
FOURTH DUI OFFENSE
Four offenses within 10 years
(felony)
  • minimum one year confinement;
  • indefinite Virginia license revocation;
  • ignition interlock device required;
  • $1000+ fine.
FIRST VA REFUSAL TO SUBMIT
(civil offense)
  • one year Virginia license suspension.
SECOND VA REFUSAL TO SUBMIT
Prior DUI conviction or refusal conviction
(misdemeanor)
  • three year Virginia license suspension;
  • other penalties as well.
THIRD VA REFUSAL TO SUBMIT
Two or more prior DUI or refusal convictions
(misdemeanor)
  • three year Virginia license suspension;
  • other penalties as well.

Note 1.  Conviction of any Virginia DUI offense involving a child passenger (age 17 or younger) in the vehicle at the time of the offense carries an additional mandatory five day jail term in addition to all other penalties.  You may also be assessed an additional fine of at least $500 to $1000.  A second Virginia DUI offense with a child (17 or younger) in the vehicle carries and additional 80 hour community service requirement in addition to other penalties.

Note 2.  Upon conviction of a first VA DUI offense, if the person's blood alcohol level was at least 0.15, but not more than 0.20, he shall be confined in jail for mandatory minimum period of 5 days.  If the BAC is more than 0.20 percent, a mandatory minimum period of 10 days must be imposed.

Note 3.  Upon conviction of a second VA DUI offense within 10 years of a prior offense, if the person's blood alcohol level was at least 0.15, but not more than 0.20, he shall be confined in jail for an additional mandatory minimum period of 10 days.  If the level was more than 0.20, an additional mandatory minimum period of 20 days shall be imposed.

Will my defense lawyer be able to plea bargain / negotiate my Virginia DUI charge down to another (lesser) offense?

Possibly.  Plea bargaining and charge reduction are two areas that any experienced Virginia DWI / DUI lawyer would discuss with the prosecutor on the client's behalf. 

Will a Virginia DUI go on "my driving record?"

Yes.  A DUI conviction will go on your Virginia driving record.  You cannot expunge a Virginia DUI conviction.

How much jail / prison time will I have to do if I am convicted of a DUI in Virginia?

The amount of incarceration (jail or prison) received will depend on a number of factors, including (but not limited to) the following:

•  your prior driving record especially your DUI / DWI history in the past 10 years (including any DUI's and DWI's outside of Virginia);

•  your level of intoxication / BAC (BAC of 0.15 % or greater and 0.20 % or greater can generate more jail time);

•  whether there was a collision involved;

•  whether there was an injury to another person in any accident;

•  which Virginia court your case is in;

•  what judge you are sentenced by;

•  whether there was a passenger in your car (especially a child passenger).

 

I am licensed to drive in a state other than Virginia and I was cited for a DUI in Virginia.  Will my driver license be suspended / revoked?

Virginia only has the authority to suspend or revoke your right to drive in the Commonwealth of Virginia.  However, Virginia and 44 other states and the District of Columbia (Washington DC) have adopted an agreement known as the "Driver License Compact."  Virginia will report a DUI conviction to the home state of the driver (assuming the home state has also adopted the Compact).  Your home state will then generally take action to suspend or revoke your license.

This also works in reverse.  If you are a Virginia licensed driver and you are convicted of a DUI / DWI / OWI charge in another state, the Commonwealth of Virginia will revoke your license if it learns of the conviction. 

I just moved to Virginia but I had a DUI / DWI in my former state.  Will I be able to get a driver's license in Virginia?

If you are applying for a Virginia driver's license and your driving privilege / license is suspended, revoked, or disqualified in another state, you must first reinstate your driving privileges in that state before you can obtain a Virginia driver's license.

Will I have to install an Ignition Interlock System on my car?

 

An ignition interlock device (IID) is a breath alcohol measurement device that is connected to a motor vehicle ignition.  In order to start the motor vehicle, a driver must blow a breath sample into the device which then measures alcohol concentration.  If the alcohol concentration exceeds the startup set point (0.02 percent) on the interlock device, the motor vehicle will not start.  Periodic "rolling retests" are required through the drive in order to prevent cheating.

 

You will likely have to install an ignition interlock device if you're convicted of a DUI and your BAC exceeded 0.15 percent or if you are convicted of a second or greater DUI offense.  Talk to your Virginia DUI lawyer about whether the IID requirement applies to your situation.

What will a Virginia DUI do to my insurability?

If your insurance company finds out about your Virginia DUI one of two things are likely to happen.  Either your Virginia insurer will raise your rates or you may be cancelled or non-renewed.  Your insurance company will absolutely learn of your DUI / DWI if you have to file an FR-44.

What is an FR-44 / Financial Responsibility Insurance?

An FR-44 is a form from an Virginia licensed insurance company certifying that you have purchased liability insurance that meets the Commonwealth's minimum required coverage limits.  The FR-44 provides proof to the Virginia DMV that you are insured.  If you cancel your insurance or the insurance company cancels your policy before your suspension period is over, the company must notify the DMV that the insurance is canceled. 

FR-44 financial responsibility certification is required on or after January 1, 2008 for Virginia DUI convictions.  Prior to this date, SR-22 insurance was required.  FR-44 liability insurance coverage limits are double the SR-22 insurance coverage limits:

  • Bodily injury / death of one person $50,000
  • Bodily injury / death of two or more persons $100,000
  • Property damage $40,000

The new FR-44 double minimum coverage requirements apply to persons convicted of Virginia DUI offenses on or after January 1, 2008, as well as persons previously convicted of Virginia DUI offenses that are required to file an SR-22 certification beyond December 31, 2008.  The Virginia DMV will suspend the driving privilege of anyone who does not comply with this requirement by filing an FR-44 certification prior to January 1, 2009.

What happens if I was on probation for another offense when I was arrested for my Virginia DUI charge?

Committing a new offense while you're on probation for a previous crime creates two problems.  First, you face the new Virginia DUI charge.  Second, you face a probation violation hearing for failing to obey all laws.  The most serious scenario is when you receive a new VA DUI offense when you're already on probation for a previous DUI conviction.  When this happens, its in your best interest to speak to an Virginia DUI lawyer as soon as possible.

I'm not a United States citizen.  Will a Virginia DUI / refusal conviction result in my removal from this country?

Probably not.  Typical, run of the mill Virginia DUI and refusal to submit convictions (no priors) are not considered crimes of moral turpitude or aggravated felonies resulting in removal.  It is important to consult an experienced immigration lawyer about your situation just as you should consult with an experienced Virginia criminal defense lawyer about your pending VA DUI / refusal charge. 

Keep two points in mind.  First, it is very important to answer honestly all questions about prior arrests / convictions on immigration and Visa applications and forms.  Lying on these forms is often considered more serious than any DUI / refusal conviction.  Second, non-citizens must take extra care not to drive on a suspended or revoked license. 

Are there special concerns for licensed pilots who get arrested for a Virginia DUI offense?

 

Yes.  The FAA has special reporting requirements for certain Motor Vehicle Actions including Virginia DUI convictions and certain administrative license suspensions.  Learn more here.

I missed my Virginia court appearance.  What do I do now?

Failing to appear (FTA) for court is to be avoided.  When you miss a court appearance, bad things follow.  At a minimum, the Virginia court typically issues a warrant for your arrest (known as a bench warrant).  Talk to an attorney as soon as possible.  Often, your only option is to turn yourself in on the outstanding warrant.  A new court date will then be scheduled.

Can I represent myself in court on my Virginia DUI and other criminal charge(s)?

Yes.  You have an absolute constitutional right to represent yourself on any criminal charge no matter how serious including a Virginia DUI charge.  Keep in mind that VA DUI defense is a complex area of the law as shown by the information in this website.  If you cannot afford to hire your own attorney, you definitely should apply for court appointed counsel to represent you.  You have no right to court appointed counsel at the implied consent license proceeding.

Copyright 2013, 2012, 2011, 2010, 2009

 

Websites, including this one, provide general Virginia DUI information but do not provide legal advice or create a lawyer / client relationship.  General information cannot replace legal advice specific to your case, problem, or situation.  Consult qualified Virginia Drunk Driving attorneys for advice about any specific problem or DUI DWI charge that you have.  Virginia attorneys are governed by the Virginia Rules of Professional Conduct.  This website may be considered an advertisement for services under these Rules.  Information contained in this website is believed to be accurate but is not warranted or guaranteed in any way.  No attorney associated with this website is specialized or certified in any way.  Every legal matter is different. The outcome of each legal case depends upon many factors, including the facts of the case, and no attorney can guarantee a positive result in any particular case.

 

Virginia DWI lawyers provides drunk driving (DUI) and criminal defense assistance to the cities of Richmond, Chesapeake, Newport New, Arlington, Hampton, and Virginia Beach.

 

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