Virginia DWI Laws and the Penalties for a Conviction

In Virginia, "driving while intoxicated" (DWI)—sometimes called "driving under the influence" (DUI)—is a criminal offense with serious consequences. The penalties of a DWI conviction often depend on whether you have prior convictions. But other factors—like a high blood alcohol concentration (BAC) or getting into an accident—can increase the penalties.

What Are Virginia's DWI Laws?

Virginia's DWI laws prohibit all motorists from driving or operating a motor vehicle:

• while under the influence of drugs or alcohol
• with a BAC of .08% or more
• with a blood concentration of .1 milligrams per liter or more of methamphetamine
• with a blood concentration of .02 milligrams per liter or more of cocaine
• with a blood concentration of .01 milligrams per liter or more of phencyclidine (PCP), or
• with a blood concentration of .1 milligrams of 3,4-methylenedioxymethamphetamine (MDMA) per liter of blood.

(Va. Code § 18.2-266 (2025).)

What Does "Under the Influence" Mean?

Under the above law, Virginia DWIs can be based on:

• proof of actual impairment by alcohol or any drug, or
• the amount of alcohol or a specific drug in the driver's blood (called a "per se" DWI).

In an impairment DWI case, a chemical test isn't needed to be convicted. Instead, the prosecutor needs to show that the motorist was "under the influence" of alcohol or drugs.

In Virginia, the definition of "under the influence" is slightly different for alcohol than it is for drugs. "Under the influence of alcohol" means that alcohol affected the motorist's "manner, disposition, speech, muscular movement, general appearance or behavior" in a way that's observable. (Clemmer v. Commonwealth, 208 Va. 661 (1968).)

On the other hand, "under the influence of drugs" means that a drug impaired the person's ability to operate or drive a vehicle safely. (Va. Code § 18.2-266 (2025).)

So, in alcohol DWIs, the prosecution just needs to show that the driver was visibly impaired—proving they couldn't drive safely isn't required. But drug DWIs require evidence that the motorist's actual ability to drive safely was impaired.

In reality, despite these different definitions, alcohol and drug-impairment DWIs generally require the same type of evidence for a conviction. To prove a driver was under the influence of alcohol or drugs, the prosecution typically will use the following kinds of evidence:

• the motorist's statements about using drugs or alcohol
• erratic driving, and
• poor performance on field sobriety tests.

The prosecutor will use the testimony of the arresting officer, but can also use other witnesses, such as other drivers or people who witnessed the driver drinking before driving.

Per Se DWIs

Generally, a drunk or drugged driving offense based on the specific level of a substance in the driver's system—as opposed to the driver's level of impairment—is known as a "per se" DWI. The amount of alcohol that will put someone past the legal limit depends on several factors, including gender, body size, and the number and strength of drinks.

Unlike some other states, Virginia has per se drug DWI laws. As noted above, a driver can be convicted of a DWI for having specific blood levels of cocaine, methamphetamine, PCP, or MDMA. (But remember that a drug DWI also can be based on impairment by any drug—not just those listed in the per se statute.)

The prosecution will use breath or blood test results to prove a per se DWI. The police—or medical personnel for a blood test—must follow specific steps for the test to be legally valid. So it's often a good idea to consult with a DWI attorney to ensure that the test was conducted properly.

A Person Can Be Convicted of a DWI Without Driving

Despite the name "driving while intoxicated," 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. While driving is enough for a conviction, it isn't required. (Va. Code § 18.2-266 (2025).)

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. (Enriquez v. Commonwealth, 283 Va. 511 (2012).)

Penalties for a First DWI Conviction

DWI penalties depend on several factors. Penalties include mandatory jail sentences for elevated BACs and drivers with previous DWI convictions.

A first DWI conviction—unless it involves an accident causing serious injury or death—is a class 1 misdemeanor. The driver generally faces:

• up to 12 months in jail
• up to a $2,500 fine, including a $250 mandatory minimum fine, and
• a 1-year license suspension.

(Va. Code §§ 18.2-11, 18.2-270, 18.2-271 (2025).)

A driver who is convicted of a first DWI can obtain a restricted license. However, the restricted license will include an ignition interlock device (IID) requirement for 12 months. (Va. Code § 18.2-270.1 (2025).)

A first offender generally will be placed on unsupervised probation and will have to complete the Virginia Alcohol Safety Action Program. (Va. Code § 18.2-271.1 (2025).)

Penalties for a Second DWI Conviction

The punishment for a second DWI depends on how long it's been since the driver's first DWI. If the driver commits the second DWI more than 10 years after the first DWI, it's treated as a first offense.

A second DWI conviction within 10 years is a class 1 misdemeanor with the following penalties:

• up to 12 months in jail, including a 10-day mandatory minimum jail sentence (20 days if the second offense is within 5 years of the first)
• up to a $2,500 fine, including a $500 mandatory minimum fine
• a 3-year license suspension, and
• a minimum 12-month IID requirement.

(Va. Code §§ 18.2-11, 18.2-270, 270.1, 18.2-271 (2025).)

For a second offense, the IID requirement applies regardless of whether the driver gets a restricted license. (Va. Code § 18.2-270.1 (2025).)

A second offender generally will be placed on unsupervised probation and will have to complete the Virginia Alcohol Safety Action Program. (Va. Code § 18.2-271.1 (2025).)

Penalties for a Third-Offense DWI

A third DWI conviction within 10 years is a class 6 felony. The driver will face the following penalties:

• up to 5 years in prison, including a 90-day mandatory minimum sentence (6-month mandatory minimum if it's the third DWI within 5 years)
• up to a $2,500 fine, including a $1,000 mandatory minimum fine
• an indefinite license revocation, and
• a minimum 12-month IID requirement.

(Va. Code §§ 18.2-10, 18.2-270, 270.1, 18.2-271 (2025).)

For a third offense, the IID requirement applies regardless of whether the driver gets a restricted license. (Va. Code § 18.2-270.1 (2025).)

The court generally will place an offender on a period of probation to be served after the offender serves the mandatory minimum jail sentence.

Increased Penalties for a High BAC or Minor Passengers

Unlike many states, Virginia imposes mandatory minimum fines and jail sentences for an elevated BAC and having a minor passenger in the vehicle.

Penalties for an Elevated BAC

Drivers will receive the following mandatory minimum sentences for having an elevated BAC:

• 5 days in jail for a BAC between .15 and .20 for a first DUI
• 10 days in jail for a BAC above .20 for a first DUI
• 10 days in jail for a BAC between .15 and .20 for a second DUI, and
• 20 days in jail for a BAC above .20 for a second DUI.

(Va. Code § 18.2-270 (2025).)

Penalties for Having a Minor Passenger

The penalties for a DWI are more severe if the offense involved minor passengers. If a child 17 or younger was in the vehicle, the driver will receive a 5-day mandatory minimum jail sentence plus a fine of $500 to $1,000. The fine and jail sentence will be on top of any other fines or jail terms the law requires. (Va. Code § 18.2-270 (2025).)

Mandatory Minimum Sentences Can't Be Reduced

A judge has no authority to reduce or suspend a mandatory minimum sentence. In other words, if you have minor passengers or a BAC of .15 or above, you'll have to serve jail time. (Va. Code § 18.2-12.1 (2025).)

When Is a DWI a Felony in Virginia?

As noted above, a third DWI within 10 years is a felony. But once a driver is convicted of a felony DWI, all subsequent DWI convictions will also be felonies. (Va. Code § 18.2-270 (2025).)

A DWI can also be charged as a felony if the offense involved injuries or death.

DWI Involving an Injury

A DWI involving serious bodily injury to another person is a class 6 felony (class 4 felony if the injuries are "permanent and significant"). People convicted of a class 6 felony face up to 5 years in prison and up to $2,500 in fines. A class 4 felony carries 2 to 10 years in prison and a fine of up to $100,000. A person convicted of either a class 4 or class 6 DWI causing bodily injury will face a license revocation for at least 5 years. (Va. Code §§ 18.2-10, 18.2-51.4, 46.2-391 (2025).)

DWI Involving a Death

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 10 years in prison and a maximum of $2,500 in fines. But particularly egregious cases that are categorized as "aggravated vehicular manslaughter" carry heavier penalties, including up to 20 years in prison and a 1-year mandatory minimum prison sentence. A person convicted of either type of vehicular manslaughter will face a license revocation for at least 5 years. (Va. Code §§ 18.2-10, 18.2-36, 18.2-36.1, 46.2-391 (2025).)

Implied Consent and Refusing a Blood or Breath Test

Virginia's "implied consent" laws require all drivers lawfully arrested for a DWI to submit to a blood test, breath test, or both. (Va. Code § 18.2-268.2 (2025).)

Motorists who refuse testing face a license suspension even if they're never convicted of a DWI charge in court. A first offense is a civil offense, and the penalty is a one-year license suspension. (Va. Code § 18.2-268.3 (2025).)

Underage (Baby) DWI

A driver who's younger than 21 can be charged with a baby DWI for operating a vehicle with a BAC of .02% or more. A baby DWI is a class 1 misdemeanor and generally carries up to a $2,500 fine (including a mandatory minimum fine of $500 or 50 hours of community service) and a license suspension of 1 year. (Va. Code § 18.2-266.1 (2025).)

Plea Bargaining and Getting Help From an Attorney

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—though it's by no means guaranteed. A wet reckless is a reckless driving offense that involves drugs or alcohol. A wet reckless conviction generally carries less severe penalties than a DWI, but a court can, in addition to the other penalties, order the motorist to complete an "alcohol safety action program" as a condition of probation. (Va. Code § 46.2-392 (2025).)

Because the consequences of a DWI conviction are serious, you should think about getting in touch with an experienced DWI lawyer. A qualified DWI attorney can explain how the law applies to your situation and potentially can find holes in the prosecution's case. A lawyer can help you decide on the best course of action—whether it's a plea bargain or contesting the charges at trial.