Being arrested for driving under the influence, or “DUI” as it is commonly known, is possibly one of a driver’s worst nightmares. While most individuals are certainly cautious, a DUI can happen to anyone. According to the National Highway Traffic Safety Administration’s (NHTSA) data, fatalities related to drunk driving accidents have decreased by 57% between 1982 and 2014. This is in large part due to states increasing both enforcement and penalties for drunk driving. Virginia DUI laws are some of more strict DUI laws in the country.
What are the DUI laws in Virginia?
In Virginia, the terms driving under the influence (DUI) and driving while intoxicated (DWI) are interchangeable. DUI laws in Virginia are set forth beginning in Virginia Code Section 18.2-266 and extend through Virginia Code Section 18.2-273. The Virginia Code states that it is considered against the law for anyone to drive or operate any motor vehicle, engine, or train with a blood alcohol concentration (BAC) of 0.08% or higher and/or if an individual is under the influence of alcohol, any narcotic drug, or a combination of alcohol and drugs or any other intoxicant or drug that impairs their ability to operate a motor vehicle safely. It is important to note that the definition of motor vehicle and engine as they relate to Virginia drunk driving statutes also includes the operation of a boat or other watercraft and mopeds. In Virginia, if there is the possibility of you operating a motor vehicle it could lead to a DUI arrest in some instances (such as sitting in your vehicle with your keys in your pocket or sleeping in your car while it is running with a BAC of 0.08% or higher). In most cases, a DUI in Virginia is considered a misdemeanor offense however, there are several circumstances where a DUI could be charged as a felony, such as a third or subsequent DUI offense, or a DUI in which someone was injured or killed.
Virginia DUI laws also include a “zero tolerance policy” for anyone under 21 years of age caught driving under the influence. Because an individual under the age of 21 cannot legally buy or consume alcohol, the BAC legal limit for underaged drinking and driving is 0.02%. Regardless of age, if an individual is caught driving on a DUI suspended or restricted license, they can be charged with a DUI if their BAC is 0.02% or higher. Additionally, if you hold a Commercial Driver’s License (CDL), you are automatically held to a higher standard regarding drinking and driving. Those who hold a CDL can be legally charged with DUI even if they are found to have a lower legal alcohol limit than other drivers. CDL holders who register a BAC at or above 0.04% can be charged with a Class 3 misdemeanor. Further, if you are convicted of DUI in Virginia with minor children as your passengers, there are added consequences for your actions.
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What Happens When You are Stopped by Law Enforcement for a Suspected DUI?
Imagine, you are at a work function, a social event, a beach gathering, a family picnic, brunch with friends; you have had a few glasses of wine over several hours and do not feel impaired, or your designated driver did not follow through and had a few drinks of their own. Whatever the reason, you make the decision to get behind the wheel of your vehicle and drive yourself home. You have nearly made it to your destination and for reasons perhaps unknown to you in your current state, you see flashing lights in your rearview mirror. Your stomach drops and your heart starts to pound, you know this is bad, but now what?
The Initial Stop
When you are stopped for a suspected DUI, it is usually because you have shown signs of impairment (like swerving, drifting, etc.), or you’ve committed a more minor traffic infraction. Occasionally, police will set up sobriety checkpoints to screen for drunk drivers on the road. Traffic stops generally begin with the officer requesting to see your license and registration. It is during this initial interaction where signs of impairment will first be noted by law enforcement. These observations will be noted on the police report the officer will complete following the arrest.
If you have been stopped for suspicion of DUI in Virginia, a police officer will perform a series of field sobriety tests as well as request that you submit to a breathalyzer test. These tests are conducted to determine if an arrest for DUI should be made.
Field Sobriety Tests
The NHTSA has approved three main field sobriety tests that are used by law enforcement during a DUI traffic stop. These tests include the walk-and-turn test, the one-leg stand test, and the horizontal gaze nystagmus test. The horizontal gaze nystagmus test, also known as an eye test, is administered because when an individual is impaired by alcohol, their eyes jerk involuntarily and, as a result, it is very noticeable. This test is given to observe the involuntary jerking of the driver’s eye movements. These tests can hurt you, but they rarely help. There are no mandatory penalties for refusing to perform field sobriety tests in Virginia DUI stops. Additionally, the officers are trained to note how well you can follow their instructions, i.e., concentrate, during the administration of the tests. These observations can also be used against you in court and can often be more harmful than the test performance itself.
Breathalyzer and Blood Tests
There are two types of breath tests which will occur during a Virginia DUI traffic stop, the preliminary test, and the official test. The preliminary breath test is taken roadside at the time of the stop using a handheld portable breathalyzer. The official test is administered upon your arrival to the police station or jail using the Intox EC/IR II testing device. Roadside breath tests aid law enforcement in confirming there is enough evidence of intoxication to make an arrest for driving under the influence of alcohol. It is the official breath test administered at the police station or jail that is used in court to prove a driver is guilty of driving under the influence. Legally, you may refuse blowing into the handheld portable breathalyzer without consequences; however, you cannot refuse to blow into the Intox EC/IR II without penalty.
There are also a number of different ways a DUI arrest can yield a blood test. For instance, if a person is arrested under suspicion of a DUI and the officer suspects that drugs are a component of whatever it is that has impaired the driver, then officers will automatically default to a blood test because there is no way for a breath test to analyze drug content in a person’s body. Breath tests can only check for alcohol in your system.
Challenging a Virginia DUI field sobriety test, breathalyzer test, and/or blood test is possible as a defense in DUI cases. An experienced Virginia DUI lawyer can provide more information regarding these defenses based on the specific events which occurred in a DUI arrest.
If you are arrested for a DUI in Virginia, you will be read your Miranda Rights, placed in handcuffs, put in the back of the police car, and taken to the local police station or jail. Additionally, if there is no one capable of driving your vehicle home, it may be towed and impounded. At the police station or jail, you will be given the official breathalyzer test, fingerprinted, and have a mug shot taken. You may be processed and released with a court date to respond to the charges against you or held until you are able to appear in court, depending upon the situation. If you are arrested for DUI a third or subsequent time within a period of five years, you will not usually be granted bail while you await trial on the charges against you.
Following your arrest for DUI, your license will be subject to what is known as an Administrative License Suspension. For a first-time offender with a BAC of 0.08% or higher, your driver’s license will automatically be suspended for seven days. A second DUI offense and/or breath test refusal will result in an automatic license suspension of 60 days or until you go to trial, whichever comes first. Third offenses result in license suspension until trial.
If you are arrested, know your rights. If you are questioned by the police, you are entitled to exercise your Fifth Amendment right to remain silent and your Sixth Amendment right to counsel. You should exercise these rights by stating you wish to remain silent and by contacting an experienced Virginia DUI lawyer as soon as you are able to do so following your DUI arrest.
The Initial Appearance
Your first court appearance is what is commonly referred to as the initial appearance or arraignment. At this court date, the judge will state what you have been charged with, ask you if you would like to hire an attorney, and provide you with the date for your trial. In some instances, if you have already hired an attorney and they have contacted the court, you may not have to appear for the arraignment and a trial date will just be set.
What are the Penalties for a DUI in Virginia?
The consequences you face in your drunk driving case can depend on your BAC at the time of your offense. The penalties incurred may include but are not limited to:
- Fees and fines ranging from $250 to $2,500.
- Mandatory suspension of your driver’s license. If your license is suspended for a DUI related offense, you may be eligible for a restricted license that will allow you to go to work among other places at the judge’s discretion.
- The possibility of having to perform community service.
- The possibility of mandatory jail time.
- Mandatory installation of an ignition interlock device (IID). An IID is a handheld, in-vehicle breathalyzer. It is installed to prevent the vehicle from starting until a breath test is taken and passed. A first offense DUI conviction requires an IID be installed on at least one vehicle and any vehicles you operate as a condition of any restricted driving privileges, usually for a period of at least six months.
- Completion of the Virginia Alcohol Safety Action Program (ASAP). Upon conviction of DUI, you will be referred to the ASAP in your area where education, intervention, and treatment services will be evaluated and assigned to you at your own expense. Virginia ASAP includes classes held over 20 hours during a 10-week period if you are assigned to complete alcohol education.
- A criminal record. A DUI in Virginia is a misdemeanor in most instances however, there are several circumstances where a DUI could be charged as a felony. If you are arrested for driving under the influence in Virginia, it will be reported to the Central Criminal Records Exchange by law enforcement at the time of your arrest.
- Insurance increases. In Virginia, a person convicted of a DUI is required to file an FR44, which is essentially a guarantee to the Virginia DMV that “high risk” drivers are maintaining the required auto insurance coverage. Your insurance liability limits must be $50,000 or higher per person, $100,000 or higher per accident, and $40,000 or higher for property damage. It also means that if you cancel your policy, the DMV is notified, your license is re-suspended, more fines are imposed, and the timing for the FR44 requirement is reset. Virginia requires most DUI offenders to file an FR44 for three years.
- If you are under the age of 21, and register a BAC of 0.02% or greater, the Zero Tolerance Law when it comes to underage drinking and driving applies to you. You will incur a $500 minimum fine and a one-year license suspension. In some instances, completion of at least 50 hours of community service can be an acceptable substitute for the fine.
There are certain situations where your penalties can be increased. These include committing property damage, driving with a minor, having an elevated BAC, or refusing to cooperate with law enforcement when asked to complete a breathalyzer test.
- If your BAC was anywhere from 0.15% to 0.20%, the penalty will include a mandatory five days in jail. A BAC greater than 0.20% comes with a mandatory 10 days in jail.
- Conviction of any DUI offense where a minor passenger was in the vehicle with you at the time of the offense carries an additional mandatory five-day jail sentence in addition to all other fines and jail sentences as well as an additional fine of at least $500 to $1,000.
- Unreasonably refusing the official breath test or blood test will result in an immediate one-year license suspension for the first offense. A second breath or blood test refusal will result in a suspension of your license for a three-year period and is also considered a Class 1 misdemeanor.
How Can an Experienced Virginia DUI Lawyer Help?
An experienced Virginia DUI defense attorney will have the knowledge and skills to help you understand your legal options and work to develop a defense strategy and complete the discovery process to vigorously defend you against the charges you face. Some of the more common defenses against a DUI in Virginia include but are not limited to:
- Lack of reasonable suspicion.
- Lack of probable cause.
- Challenges to the DUI field sobriety tests.
- Challenges to the horizontal gaze nystagmus test.
- Challenges to the breath test.
- Challenges to the blood test.
- Challenges to an officer’s testimony.
- The rising blood alcohol defense.
- A violation of your constitution rights.