Virginia DWI/DUI Laws, Fines & Penalties

Every state enacts its own laws making drunk driving a crime, and no two are exactly alike. Even the titles are different. Virginia calls its law "driving while intoxicated," so DWI is the official abbreviation. However, since the statute makes driving under the influence a violation, many commentators use the abbreviation DUI to describe the law and the offense.

Anyone driving in the commonwealth of Virginia needs to know more than just the title of the law. It's important to get an overview of the actions that constitute a DWI in Virginia and the fines and penalties that apply to violations.

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The state of Virginia makes it a crime for an individual to drive while drunk or drugged. The law is codified in Virginia Statutes Section 18.2-266. That law, entitled "Driving motor vehicle, engine, etc., while intoxicated," describes several different prohibited driving behaviors, including impairment DWIs and "per se" DWIs.

These illegal driving behaviors do not simply apply to cars and trucks. The statute specifies that its terms apply to anyone driving or operating any motor vehicle, engine, train, boat, motorcycle and even moped in Virginia.

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The difference between impairment DWIs and per se DWIs is that the former requires evidence of impaired driving while the latter relies solely on chemical testing. Impairment DWIs are described in the Virginia law as driving while under the influence of:

• alcohol
  
• any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature
  
• any combination of alcohol and drugs

The level of being under the influence is also specified in the statute: It must be "to a degree which impairs ability to drive or operate any motor vehicle, engine or train safely." In order to establish this, the prosecutor must present evidence to the judge or jury that establishes that the person imbibed alcohol or used drugs and that, as a result, their ability to drive safely was impaired.

Usually that evidence includes police officer testimony as to how the individual was driving and how they performed on road sobriety tests when they were stopped. Since these are criminal violations – misdemeanors or felonies – the standard of proof is beyond a reasonable doubt.

"Per se" is a Latin phrase meaning "in and of itself". A per se violation is one that is sufficient, in and of itself, to justify a conviction if not disproved. Per se DWIs in Virginia are those based on the results of chemical tests showing the level of alcohol or drugs in a person's system. Virginia statutes set out legal limits for alcohol as well as for four types of drugs.

The legal limit for alcohol is not simply a set number of drinks, as many people think. Rather, it is the percentage of alcohol in a person's system. This is termed blood alcohol concentration (BAC) and is usually tested with a breathalyzer. A driver with a BAC of 0.08 percent or higher is guilty of a per se DWI in Virginia. For commercial drivers, the legal limit is a BAC of 0.04 percent and for drivers under 21 years old, it is 0.02 percent.

All states have per se DUI or DWI statutes involving alcohol. Virginia is one of the few states that also has per se violations for certain drugs. These are measured not by blood alcohol content but by milligrams of drug per liter of blood, and violations are determined by blood testing. The four per se drug legal limits are:

• 0.02 milligrams of cocaine per liter of blood.
  
• 0.1 milligrams of methamphetamine per liter of blood.
  
• 0.01 milligrams of phencyclidine (PCP) per liter of blood.
  
• 0.1 milligrams of 3,4-methylenedioxymethamphetamine (MDMA) per liter of blood.

Anyone driving in Virginia after drinking alcohol or taking drugs might prefer not to take a chemical test. This is especially true because it is so much easier for a prosecutor to convict a driver of a per se DWI than an impairment DWI. One blood test or breathalyzer test that shows a result over the legal limit is all that is required, so why wouldn't a driver simply decline to take the test?

In order to make the option of refusal less appealing, the Virginia legislature enacted an implied consent law. This law is based on the premise that it is a privilege, not a right, to drive on public roads, streets and highways in the state. The legislature has conditioned this privilege on a driver's consent to take a chemical test if stopped by law enforcement for drunk or drugged driving. A driver doesn't need to consent to this directly and individually; under the statute, drivers express implied consent by simply driving on the roads in Virginia.

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If a driver violates the implied consent law, they are subject to administrative sanctions. These take the form of loss of driving privileges. Their driver's license will be automatically suspended, and the initial suspension is not dependent on being convicted of the criminal charge of DWI.

These administrative driver's license suspensions apply when a driver refuses to take a chemical test, regardless of what happens in court. If the driver is not charged criminally, or even if they are charged with DWI, these administrative sanctions still apply.

The length of the license suspension for refusal to take a chemical or breath test depends on prior driving history. If this is the driver's first refusal in 10 years, the full suspension is for one year. If the driver has one or more prior refusals in the past 10 years, the total license suspension is three years. A driver can ask for an administrative hearing to contest the license suspension if they feel they have evidence that can disprove the refusal charge.

In Virginia, a person arrested for a DWI violation is entitled to a trial at which they can present any relevant defenses. If convicted of a DWI offense, they can expect a variety of criminal sanctions to apply. The statutes give the court a range of penalties, but also set out the minimum fines or jail time that will apply.

Criminal penalties for driving while intoxicated include these sanctions:

• Jail time and/or probation.
• Monetary fines.
• License revocation.

• Mandatory alcohol education, assessment and treatment.

• Mandatory use of an ignition interlock device (IID), a type of breathalyzer that only allows the car to start if the driver blows into it and shows they are not intoxicated.
  

• Vehicle impoundment.

Not every driver convicted of a DWI will get the same penalties. Like most states, Virginia considers repeat offenders to be more serious violators than first offenders. Therefore, first offenders get the least serious sanctions. Second offenders get more serious penalties, and third or fourth offenders are penalized even more harshly.

The court determines whether an offender has prior offenses by using the statutory look-back period of 10 years. For example, if a driver had one prior conviction in the past 10 years, the current DWI is a second offense. A driver with three priors in the past 10 years faces a fourth offense.

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First offenders face less severe penalties than repeat offenders. There is no minimum jail time for a first offense, and the minimum fine is $250. The maximum jail sentence is a year, while the maximum fine is $2,500. The court determines the appropriate punishment from the circumstances of the offense.

The individual's license is suspended for a year, and, if they are able to get a restricted license, they must install an IID on every vehicle they drive and keep it on for six months.

Second offenders face 10 days of mandatory jail time, with a maximum jail term of a year. The minimum criminal fine is $500, and the license suspension is three years. Third offenders will go to jail for at least 90 days and can be sent to jail for up to five years. The minimum fine is $1,000, and the potential license suspension is permanent.

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In addition to a person's driving history, the circumstances of the violation can also impact DWI penalties in Virginia. Two common aggravating circumstances include an extremely elevated BAC level and driving drugged or drunk with a child passenger in the vehicle.

The BAC level for a regular per se violation in Virginia is 0.08 percent. A driver who tests at this level or higher can get a DWI. But if that BAC level is 0.15 percent or higher, it is considered an aggravating circumstance, and higher penalties apply.

The minimum jail time for a driver with a BAC of between 0.15 and 0.20 percent is at least five days in jail, even for a first offense. If their BAC is over 0.20 percent, the minimum goes up to 10 days of jail time.

A second aggravating circumstance occurs when a driver is found to be violating the DWI statute while carrying a child passenger, that is, a passenger 17 years or younger. An individual driving drunk or drugged with a child passenger will get an additional five days of mandatory jail time, an additional fine and a larger bill for the substance abuse program.

It is a distinct hardship to have a driver's license suspended. An individual with a suspended license cannot drive to work or to school. They cannot go shopping or drive to a medical appointment; they may be responsible for taking kids to school or parents to doctor appointments. That is why Virginia makes it possible in some circumstances for a driver with a DWI license suspension to get a restricted or hardship license.

Recent amendments to the statute have made it easier for a first offender to get a hardship license. A driver with a BAC of under 0.15 is eligible to ask the court for a restricted license if they install an ignition interlock device (IID) on their vehicle and keep it there for one year. Drivers who don't meet these criteria might still be granted a restricted license if they attend an alcohol abuse program, agree not to drink alcohol and use a remote alcohol monitoring device.

Does this apply to drivers who refuse a chemical test? Yes, in most ways. A driver who refuses to allow a blood or urine chemical test can petition the court for a restricted license but must wait until 30 days after the conviction to do so. They will be required to install an IID in their vehicle and to complete an alcohol safety program.

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