Criminal defense attorney Jay P. Mykytiuk is prepared to defend your rights if you are facing charges for a Virginia DUI.
DUI Law in Virginia
Virginia is notorious for its tough criminal justice system, and the state’s impaired driving laws are no exception. There are a few different types of impaired driving/DUI laws in Virginia; Virginia Code § 18.2-266 breaks these laws up into three main categories: Driving Under the Influence of Alcohol (DUI), Driving While Intoxicated (DWI), and Driving Under the Influence of Marijuana/Other Drugs (DUID). Each of these charges carries the same maximum penalty, but defendants with prior offenses or whose Blood Alcohol Content (BAC) crosses certain thresholds will face additional punishment.
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Virginia DUI Offense Limit
If you are pulled over on suspicion of intoxication, the officer might ask you to take a test to identify whether there’s alcohol in your system. In Virginia, it is unlawful to operate a motor vehicle if you have a BAC of .08 or more per 210 liters of breath or if a judge determines that you were under the influence of alcohol. A breath test determines whether your BAC was over the legal limit, and a judge determines whether you were under the influence.
The police cannot force you to take a breath test. However, if it is proven that you unreasonably refused to take the blood or breath test, your license will be automatically suspended for a year, even if you are not convicted of an impaired driving offense. This also means that you will not be eligible for a restricted license, which typical first-time offenders may receive. If you are pulled over again and refuse to take the test for a second time, you will face an automatic license suspension of three years and you could be charged with a class 1 misdemeanor. Just remember: you have a right to remain silent — use it, and then contact a DUI lawyer as soon as possible.
DWI vs DUI Virginia
In Virginia, a DUI is simply driving under the influence. There is no BAC level that needs to be met for these serious traffic offenses. If an officer observes you driving in a manner that indicates you might be impaired, they will pull you over. The officer will then ask you to perform sobriety tests that will help the officer decide whether you are impaired.
A DWI is what people commonly think of as drunk driving. If you were operating a vehicle with a Blood Alcohol Concentration of .08 or above, you are guilty of DWI. An officer will pull you over initially for a DUI in VA, and if your BAC is found to be over .08 during the officer’s investigation, you will be charged with a DWI.
Virginia DUI First Offense Penalties
A first-offense DWI, DUID, or DUI charge is a class 1 misdemeanor—the most serious type of misdemeanor—in Virginia. If you are convicted of one of these charges, you could face up to one year in jail and a fine of up to $2,500.
However, in 2020 Virginia put new legislation into effect which granted drivers convicted of a first DUI offense the option to keep their driver’s license if they use an Ignition Interlock Device (IID) for a year. Before that change, penalties for a first DUI included a one-year license suspension while granting a restricted license in some cases.
But, certain criteria have to be met. For example, the conviction has to be for a first-time DUI, blood alcohol concentration (BAC) has to be .15 or less. In addition, a request to the court for granting a restricted license has to be made.
Under new Virginia DUI laws, there is also a change regarding violating the implied consent law. Those who refuse a blood or urine chemical test have to wait 30 days after conviction to petition a restricted license from the court.
Additional First Offense DUI Penalty Virginia
In addition to criminal penalties, you will be required to complete the Virginia Alcohol Safety Action Program (VASAP) in order to have your license reinstated. If you are granted a restricted driver’s license, you will be required to have an ignition interlock device installed on any vehicle that is registered to you.
Virginia DUI and DWI Enhancements
While many first offenders will avoid jail time, it is always a possibility. Based on the specific circumstances of your case, you may be facing mandatory jail time regardless of your first offender status.
These factors include:
- Elevated Blood Alcohol Content (BAC): A .08 BAC is what is required to charge a person with DWI. If you are convicted of a DWI and your BAC was between .15 and .20, you will be sentenced to a mandatory minimum of 5 days in jail. The mandatory minimum increases to 10 days if your DWI results in a BAC over .20.
- Minor in the Vehicle: If you had a minor under the age of 18 in your vehicle at the time of your arrest and you are convicted of an impaired driving offense, you will be sentenced to a mandatory minimum of 5 days in jail, as well as be fined up to $1,000.
What Is the Punishment for DUI in Virginia?
Virginia breaks up punishments for a second impaired driving offense into two categories: second within 10 years and second within 5 years. If convicted of a second impaired driving offense, you will be required to equip your vehicle with an ignition interlock device for the first 6 months after your driver’s license is given back to you.
Second and Third Virginia DUI Penalties
If you are convicted of a second impaired driving offense within 10 years of your first, you face a mandatory minimum sentence of 10 days and up to 12 months in jail. You will also face a fine of up to $2,500 and your license will be suspended for 3 years. If your BAC was between .15 and .20, you face a mandatory minimum jail sentence of 20 days. If your BAC was above .20, you face a mandatory minimum of 30 days in jail.
If you are convicted of a second impaired driving offense within 5 years of your first, you face a mandatory minimum jail sentence of 20 days and up to 12 months. You will also face a fine of up to $2,500 and your license will be suspended for 3 years. If your BAC was between .15 and .20, you face a mandatory minimum jail sentence of 30 days. If your BAC was above .20, you face a mandatory minimum of 40 days in jail.
If you are convicted of a third impaired driving offense in Virginia, your driver’s license will be revoked indefinitely (possibly permanently). In addition, a third impaired driving offense is charged as a felony, not a misdemeanor. This means larger mandatory fines (minimum of $1,000) and prison sentences.
If you are convicted of a third impaired driving offense within 10 years, you face a mandatory minimum sentence of 90 days and up to 5 years in prison. If you are convicted of a third impaired driving offense within 5 years, you face a mandatory minimum sentence of 6 months and up to 5 years in prison. For either of these convictions, you will also face a permanent forfeiture of your vehicle in addition to the loss of your driver’s license.
How Long Will a DUI Offense in Virginia Stay on an Individual’s Record?
A criminal conviction for a Virginia DUI or a DWI offense will lead to a permanent criminal record. Virginia doesn’t allow expungement of a criminal conviction involving drunk driving offenses. On the other hand, a DWI or DUI arrest can be sealed if that case is dropped or dismissed.
When it comes to DMV records, a DUI conviction will stay on a driver’s record for 11 years. It is a six-point offense. Although that may not seem like a lot, if you receive a certain amount of points in a year, the Virginia Department of Motor Vehicles (DMV) may impose penalties such as driver’s license suspension.
How Can a Lawyer Help with DWI/DUI Charges
As you can see, Virginia treats a drunk driving offense as well as driving while intoxicated offense very seriously. For example, having two or more previous DWI charges in five years can result in a felony DWI charge that can’t be expunged from an individual’s criminal record. A felony DWI, for instance, brought about by having two or more previous DWI charges in a five-year period, cannot be expunged from your criminal record.
If you are charged with DUI or DWI in Virginia and hope you may get charges dismissed, bear in mind Virginia courts may not agree to a complete dismissal. However, in some cases, you can get your charges reduced to a wet reckless – reckless driving offense involving alcohol or drugs.
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