In Virginia, the consequences of a DWI conviction depend primarily on the number of prior convictions you have. This article covers the basics of Virginia's DWI laws and the penalties for a first, second, third, and felony conviction.
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 se 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 the number and strength of drinks.
For a first DWI conviction within ten years (older DWIs don't count), the driver generally faces a misdemeanor charge and:
However, the IID requirement is just a condition of obtaining a restricted license during the suspension.
For a second DWI conviction within ten years, the driver generally faces a misdemeanor charge and:
For a second offense, the IID requirement applies regardless of whether the driver seeks to obtain a restricted license.
For a third DWI conviction within ten years, the driver generally faces a felony charge and:
For a third offense, the IID requirement applies regardless of whether the driver seeks to obtain a restricted license.
As noted above, a third DWI within 10 years is a felony. But once a driver is convicted of a felony DWI, all subsequent convictions will also be felonies.
A DWI can also be charged as a felony if the offense involved injuries or deaths. A DWI involving serious injury to another person is a class 6 or class 4 felony. Offenders convicted of a class 6 felony face one to five years in prison and up to $2,500 in fines. A class 4 felony carries two to ten years in prison and a fine of up to $100,000.
Causing the death of another person while driving under the influence is considered "vehicular manslaughter," a class 5 felony. A conviction generally carries up to ten years in prison and a maximum of $2,500 in fines. But particularly egregious cases that are categorized as "aggravated vehicular manslaughter" carry enhanced penalties, including up to 20 years in prison.
The penalties listed above can be more severe if the offense involved either minor passengers or a BAC that's at least .15%. Depending on the circumstances, the presence of these factors can result in higher fines and more jail time.
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 license suspension even if they're never convicted of a DWI charge in court.
A driver who's under the age of 21 can be charged with an underage DWI for operating a vehicle with a BAC of .02% or more. An underage DWI is a misdemeanor and generally carries $500 to $2,500 in fines and a license suspension of seven (first offense) or 60 days (subsequent offenses).
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.