Virginia officially uses the term “driving while intoxicated” (DWI) instead of “driving under the influence” (DUI). However, lots of people (including attorneys) still use DWI and DUI interchangeably to refer to drunk or drugged driving.
Virginia’s DWI laws prohibit all motorists from driving or operating a motor vehicle:
Generally, a person is considered “under the influence” if the substances (alcohol and/or drugs) ingested impair the person’s ability to operate or drive a vehicle safely. (Virginia has similar laws that outlaw boating under the influence.)
Virginia also has “zero tolerance” laws making it illegal for underage drivers (those under 21 years old) to get behind the wheel with a BAC .02% or more.
In Virginia, a motorist can get a DWI even if the car wasn’t actually in motion: The statute defines DWI as “driving” or “operating” a vehicle while under the influence or with a prohibited blood concentration of drugs or alcohol. So while driving is sufficient for a conviction, it isn’t required.
The Virginia Supreme Court has said that a person operates a vehicle by being in “actual physical control” of the vehicle. And while the court hasn’t precisely defined what “actual physical control” means, it did say that a person who’s seated in front of the steering wheel with the keys in the ignition comes under the definition and can be convicted of a DWI.
Generally, a drunk driving offense based on BAC—as opposed to the driver’s level of impairment—is known as a “per se” DWI. (Unlike some other states, Virginia also has per drug DWI laws, as noted above.) The amount of alcohol a person must drink to reach the legal limit depends on a number of factors, including gender, body size, and number and strength of drinks.
Virginia DWI penalties vary based on the circumstances of the case. But the range of allowable penalties depends, in large part, on the number of prior convictions the defendant has. In Virginia, a DWI conviction will stay on your record and count as a prior for ten years. Here are what the potential sentences generally look like for a first, second, and third DWI.
|
Jail |
Up to 12 months |
10 days to 12 months |
90 days to 5 years |
|
Fines |
$250 to $2,500 |
$500 to $2,500 |
$1,000 to $2,500 |
|
License Suspension |
1 year |
3 years |
Indefinitely |
| 6-month minimum as a condition of obtaining a “restricted license” |
6-month minimum |
6-month minimum |
Virginia’s “implied consent” laws require all drivers lawfully arrested for a DWI to submit to a blood and/or breath test. Motorists who refuse testing face the following license suspensions periods.
|
1st Offense |
2nd offense |
3rd Offense |
|
|
License Suspension |
1 year |
3 years |
3 years |
For purposes of determining what is a second or third refusal, prior DWI and refusal convictions within the past ten years count.
If you get charged with a DWI in Virginia, you might be hoping to get the charge dismissed altogether. However, unless the court throws out evidence that’s critical to prove the charge, it’s unlikely a prosecutor will agree to a complete dismissal.
But in some cases, a reduction to a “wet reckless” charge is possible. A wet reckless is just a reckless driving offense that involves drugs or alcohol. A wet reckless carries the same penalties as a normal reckless driving conviction except the court can, in addition to the other penalties, require the motorist to complete an “alcohol safety action program” as a condition of probation.
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