Driving While Intoxicated (DWI) / Driving Under the Influence (DUI)

Driving a motor vehicle while intoxicated poses significant danger to you and to others. Additionally the legal ramifications of an arrest for driving under the influence of alcohol and/or illegal drugs are severe. A conviction for driving a motor vehicle while intoxicated may result in license suspension, steep fines, and jail time. All drivers must aware of the laws that may strip them of their right to drive and/or their freedom should they be arrested and charged with driving while intoxicated.

Should you be arrested for driving while intoxicated, your conviction will be based upon the basic D.U.I. statute in the Commonwealth of Virginia – Virginia Code Section 18.2-266. Under this statute, a driver may be convicted for driving while intoxicated on a number of grounds:

VA Code § 18.2-266 - Driving any motor vehicle, engine, or train;

(1) While having a blood alcohol concentration (B.A.C.) of 0.08 percent or more by weight by volume (or 0.08 grams or more per 210 liters of breath as indicated by a chemical test).

(2) While being under the influence of alcohol.

(3) While being under the influence of any drug to a degree which impairs his ability to drive or operate any motor vehicle safely.

(4) While being under the combined influence of alcohol or any drug(s) to a degree which impairs his ability to drive or operate any motor vehicle.

Take note, while driving with a B.A.C. of 0.08 raises a presumption that you are driving while intoxicated, it is not the only basis for a D.U.I. conviction. Instead, a conviction can be based on any of the other three categories if supported by sufficient evidence of your intoxication (field sobriety test, testimony of the arresting officer, etc.).

Moreover, under VA Code § 18.2-266.1, it is unlawful for any person under the age of twenty-one to operate a motor vehicle after consuming alcohol and, in such cases, the B.A.C. legal limit is dropped to 0.02 percent or more by weight by volume.

The Preliminary Breath Test

Most drivers know that police officers will request a driver suspected of driving while intoxicated to submit to a preliminary breath test (P.B.T.). However, the results of these tests are not admissible by the prosecution as evidence during a trial for driving while intoxicated. Instead, this test only determines the probable alcohol content of the driver’s blood. Should the result of the test indicate that the driver’s B.A.C. is above the legal limit, the police officer may place the driver under arrest for driving while intoxicated; however, further evidence of the driver’s intoxication will be necessary to support a criminal conviction. A driver may refuse to submit to this test and his or her refusal may not be used against him in court. (See Virginia Code Section 18.2-267 for more information)


Post-Arrest Chemical Test

In contrast to the preliminary breath test (P.B.T.), as a condition of driving in Virginia, every driver is deemed to have consented to a post-arrest chemical test. Following arrest for driving while intoxicated, the driver is legally obligated to submit to a chemical test (based on blood, breath, or urine) to determine the alcohol and/or drug content of his or her blood.

Refusal to submit to the post-arrest chemical test will result in revocation of the right to drive an automobile in the state of Virginia. Further, evidence of such refusal may be admitted into evidence against the driver during a subsequent trial for driving while intoxicated.

Penalties

Any person convicted for driving while intoxicated shall be guilty of a Class 1 Misdemeanor. The court must revoke the first-time offender’s driver’s license for one year, and can also impose a $2,500 fine and up to one (1) year in jail. A Judge, has discretion to order restricted driving privileges for the year in place of a full suspension. Additionally, all persons convicted of DUI must pay for and complete the Virginia Alcohol Safety Action Program (VASAP), a drunk driving program.

Furthermore, a person convicted of a second offense within ten years after a first offense must serve a mandatory ten (10) day jail sentence. A third offense requires a jail sentence of three (3) months. For a second conviction within five (5) years of a prior offense, there is a mandatory twenty (20) day jail sentence (and six (6) months for a third offense). Fourth offenses within ten (10) years of a prior conviction are subject to a mandatory one year in jail.


*All information in this article is for your personal information only and is not intended as legal advice. This area of the law is very complex. Each case is different and the information contained herein is general. This information is not intended to be legal advice. Nor is this material intended to replace consultation with a professional. Always consult a licensed attorney for your particular case. Nothing herein shall create an attorney/client relationship.