The laws in Virginia make drunk driving a crime. Some commentators call a violation of the law a DUI and call the first violation a first-offense DUI. However, the actual name of the law is Driving a Motor Vehicle While Intoxicated, so the violation is technically a DWI. A first-offense DWI is a misdemeanor, and potential penalties include jail time. Anyone driving in this state should get an overview of the law and penalties.
Driving While Intoxicated in Virginia
Whether you call it a DUI (driving under the influence) or a DWI, getting charged with a violation of the drunk/drugged driving laws in Virginia is a serious matter. The statute sets out a variety of circumstances that can support a DWI charge.
Like most other states, Virginia makes it a crime for an individual to drive while under the influence of alcohol or drugs, termed impairment DWIs. The state also makes it a violation for an individual to drive with specified amounts of these substances in their system. This type of violation is termed a "per se" DWI. The state's per se DWI statute for alcohol is similar to those in other states – it makes it a violation to drive with a blood alcohol concentration (BAC) of 0.08 percent or above.
The state statute is unusual in that it describes per se violations for exceeding the legal limits for certain drugs too. These limits include: 0.02 milligrams of cocaine per liter of blood; 0.10 milligrams of methamphetamine per liter of blood; 0.10 milligrams of 3,4-methylenedioxymethamphetamine (MDMA) per liter of blood; and 0.01 milligrams of phencyclidine (PCP) per liter of blood.
Impairment or Per Se DWI Under Virginia Law
Even for a first-offense DWI, the prosecution has an easier time proving a per se DWI than one based on impairment. For the latter, the prosecutor must show that the person's use of alcohol or drugs resulted in sufficient impairment that the driver was unable to operate a motor vehicle safely. This involves witness testimony about how the driver acted in and out of the car.
This type of evidence is not required for a per se DWI. Rather, the prosecutor need only show the results of a chemical test establishing that the individual's BAC level was at or above the limits set out in the statute. The driver's degree of impairment is not relevant.
Chemical testing in Virginia can include breathalyzer or blood tests. The former is most common for testing alcohol, while the blood test is required for drug testing.
Implied Consent Laws and Test Refusal in Virginia
The state of Virginia has enacted an implied consent law that requires anyone arrested for a DWI to submit to a blood and/or breath test when asked to do so by law enforcement officers. Those who refuse to take a test when stopped for a DWI face administrative sanctions in the form of license suspensions. A first-offense refusal is punished by a driver's license suspension for a year; a second-offense carries a three-year driver's license revocation.
The severity of the punishment for a DWI in Virginia depends in large part on the driver's past history of convictions. These penalties are fixed by statute. Someone charged with a first offense faces lesser sanctions than a second offender. Each subsequent offense in a driving record increases the potential penalties.
Although someone stopped for a DWI may be termed a first offender, that doesn't mean that the violation is necessarily the person's initial drunk/drugged driving offense. Virginia has a 10-year look-back period. That means that only the past 10 years of driving history is relevant. A driver might have any number of DWI convictions in the past and still be a first offender as long as the most recent DWI conviction occurred over a decade before the current arrest.
Penalties for First-Offense DWI
The Virginia DWI statute sets out a range of penalties that a judge can use in sentencing a first offender. These include: jail time, fines, loss of driving privileges, mandatory attendance at a driver's education course, and mandatory use of an ignition interlock device or IID. An IID is a type of breathalyzer that attaches to a vehicle. In order for the car to start, the driver must blow into it, confirming that they are not under the influence.
The statute sets a mandatory minimum fine of $250 for a first-time DWI offender, but the actual fine is not limited to that amount. Depending on the circumstances, a first-offender DWI fine can be as high as $2,500.
While there is no mandatory minimum jail sentence for a first offender in Virginia without the existence of aggravating circumstances, the court can send the driver to jail for up to a year if circumstances warrant it. The driver will also lose their license. The criminal suspension period is one year, and this is in addition to any administrative loss of license for violating the implied consent rules.
Restricted Driver's Licenses in Virginia
The driver may be able to obtain a restricted license that permits them to drive to work and school. A first offender can apply to the court for a restricted license if they install an IID in every vehicle they own or drive and commit to driving with the device for an entire year.
A driver whose BAC tested at 0.15 percent or above is not eligible for this, but may be permitted to obtain a restricted license if they enroll in the Virginia Alcohol Safety Action Program (VASAP), an alcohol education and evaluation program, and obtain any recommended treatment or therapy. Six months of IID use are also required.
Aggravating Circumstances for DWI
Some circumstances are considered aggravating and will increase jail time and other DWI penalties. One aggravating circumstance is an extremely high blood alcohol concentration. As described above, a BAC of 0.08 percent or higher is a violation of the DWI statute.
If the driver's test results show a BAC of 0.15 percent or higher, they will face jail time and higher fines. Drivers with a BAC of between 0.15 and 0.20 percent must serve at least five days in jail; with a BAC of over 0.20 percent, the minimum jail time goes up to 10 days. Only after the minimum time is served can a driver be eligible for probation.
It is also an aggravating circumstance for a DWI driver to be carrying a child passenger, that is, an individual under the age of 18 years old. If there is a child passenger, the DWI driver must serve an additional five days of mandatory jail time. In addition, the Virginia Alcohol Safety Action Program costs will be higher. Generally, the VASAP is paid for by the driver and costs between $250 and $300, but in the case of a juvenile passenger, there is an additional $500 to $1,000 fine.
Underage Drivers in Virginia
Drivers under the age of 21 years have additional alcohol restrictions. Since these drivers are not old enough to drink in Virginia, the state has enacted a zero tolerance law forbidding these young drivers from getting behind the wheel with any amount of alcohol in their system. They violate this if chemical testing shows that their BAC is 0.02 percent or above. The penalty is loss of driving privileges for a year, plus a mandatory minimum fine of $500.
- Code of Virginia: Section 18.2-266 Driving Motor Vehicle, Engine, etc. While Intoxicated
- DUI Driving Laws: Virginia Drunk Driving Laws, Penalties, and Consequences
- FindLaw: Virginia DUI Laws
- Hampton Roads Law Team: 4 New Virginia DUI Laws in Effect July 2020
- DUI Driving Laws: Virginia First Offense DUI
- Virginia DMV: Virginia DUI Laws
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.