Second-Offense DWI/DUI in Virginia: Laws, Penalties, Consequences & More

Virginia statutes make driving while intoxicated a crime. This is officially called a DWI, but sometimes it is referred to as a DUI (driving under the influence). Like most states, the commonwealth of Virginia punishes repeat offenders more harshly than first offenders, and penalties for second DUI offenses include mandatory jail time, fines and driver's license suspension. Anyone operating a motor vehicle in this state should get an overview of the law and understand the criminal consequences for violating it.

Many people consider a DWI as an alcohol-related offense and, without question, drunk driving is part of what the law prohibits. But under Virginia law, the DWI statute also describes a variety of circumstances that can culminate in an arrest.

Driving under the influence of alcohol or drugs is one type of DWI charge in this state. The condition of being "under the influence" means that a person is sufficiently impaired that they cannot drive safely. This can be established by testimony of police officers about how a person behaved while behind the wheel and, also, during field sobriety tests.

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A driver can also violate the statute if a chemical test reveals that they have amounts of alcohol or certain drugs in their systems over the legally allowed limit. These are called "per se" DWIs, meaning that the chemical or breath test result is sufficient, in and of itself, to convict the person of a DWI – no additional evidence of impairment is required. Virginia's per se statute for alcohol is similar to that of other states, making it a violation to drive with a blood alcohol concentration (BAC) of 0.08 percent or above. The BAC legal limit for commercial drivers is 0.04 percent.

The Virginia statute also contains per se violations for exceeding the legal limits for four types of drugs. These include:

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

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Every DWI in Virginia is a crime and subject to criminal penalties, but not every DWI offender is sentenced to the same penalties. The state punishes repeat offenders much more severely than those with a first offense, and sanctions grow more severe with each additional offense. That is, a second DWI incurs more severe punishments than a first, but less than a third, fourth or subsequent offense.

That means that, in general, prior offenses on a driver's record will count against them when it comes to sentencing. However, not every DWI conviction counts as a prior in Virginia. The state has what is called a look-back period, which means that only prior convictions during that period count against a driver for a current DWI.

The look-back period in Virginia is 10 years. A driver might have any number of DWI convictions in the past, but if the most recent one occurred over 10 years before the current arrest, the driver will be charged only with a first offense.

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All of a driver's DWIs within the 10-year period before the current arrest count as priors. If the driver has one prior, they will be charged with a second offense DWI in Virginia. The penalties a driver can get for this conviction include up to a year in jail, and the judge must give the driver the appropriate mandatory minimum jail time.

The mandatory minimum jail time is greater if the prior conviction occurred within five years of the current offense. Minimum jail time also increases for a per se alcohol-based DWI depending on the amount of alcohol in the driver's system. Penalties for second-time offenders include:

• A regular per se DWI (BAC between 0.08 percent and 0.14 percent) carries mandatory minimum jail time of 20 days if the prior was within the past five years, or 10 days if the prior was more than five years ago, but less than 10 years ago.

• If the driver's BAC is at least 0.15 percent, but not more than 0.19 percent, the minimum jail time for a second offense is 30 days if the prior was within the past five years, or 10 days if the prior was more than five years ago, but less than 10 years ago.

• If the driver's BAC is 0.20 percent or above, the minimum jail sentence for a second offense will be 40 days if the prior was within the past five years, or 10 days if the prior was more than five years ago, but less than 10 years ago.

• A driver stopped for a second DWI who is carrying a passenger under the age of 18 will get an additional five days of mandatory jail time.
  

Virginia statutes impose other penalties for a second DWI. These include a criminal fine of between $500 and $2,500, with an additional $500 to $1,000 if a child passenger was in the car. In addition, the court must send the driver to the Virginia Alcohol Safety Action Program, a substance abuse course that is mandatory for all second-offense DWIs. If the driver is determined to be an alcoholic, the court can order either treatment or attendance at 20 hours of education classes.

The driver will also lose their driver's license. For a second offense, the Virginia Department of Transportation issues a driver's license revocation for three years. After the driver gets their license back, they must install an ignition interlock device (IID) and drive with it for at least six months. This is a type of breathalyzer device that attaches to the vehicle and prevents it from starting until the driver blows into it. If the driver passes the breathalyzer test, the car will start. The driver must pay for IID installation and monthly maintenance.

With the IID installed in the vehicle, the driver may be able to get a restricted license. They become eligible after four months of license revocation if the prior conviction was more than five years ago, and 12 months if the prior offense was within five years. This license allows them to drive to and from work, school and substance abuse treatment.

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In the United States, young people are usually permitted to drive at age 16, well below 21, the age when they can legally drink alcohol. For this reason, Virginia statutes provide special rules for "underage" drivers who consume alcohol. These young drivers have stricter alcohol restrictions under the state's zero tolerance law.

That law forbids those under the age of 21 from operating a vehicle with any amount of alcohol in their system. The BAC limit for these drivers is 0.02 percent or above and violation of this statute is a misdemeanor in Virginia. The penalty is loss of driving privileges for a year, plus a mandatory minimum fine of $500. However, if the young driver has a BAC level of over 0.08 percent, they can be charged with a regular DWI, and a second offense would incur the same sanctions as apply to adults.

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