Virginia DUI/DWI Laws and Conviction Penalties

In Virginia, the consequences 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.

This article covers the basics of Virginia's DWI laws and the penalties for different types of convictions.

What Are Virginia's DWI Laws?

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:

• 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 (2023).)

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.

Impairment DWIs

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

What Does "Under the Influence" Mean?

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 (2023).)

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.

How Does the Prosecution Prove Impairment?

To prove a driver was under the influence of alcohol or drugs, the prosecution typically will use the following kinds of evidence:

• the person admitting to using drugs or alcohol
• erratic driving
• poor performance on field sobriety tests, and
• other signs of alcohol or drug use.

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 a number of 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 DUI also can be based on impairment by any drug—not just those listed in the per se statute.)

How Virginia's DWI Law Defines "Driving"

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. While driving is enough for a conviction, it isn't required. (Va. Code § 18.2-266 (2023).)

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).)

What Are the Penalties for a DWI in Virginia?

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

Penalties for a High BAC

Unlike many states, Virginia imposes mandatory minimum fines and jail sentences for an elevated BAC. Specifically, drivers will receive the following mandatory minimum sentences:

• 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 (2023).)

A judge has no authority to reduce or suspend a mandatory minimum sentence. In other words, if you have a BAC of .15 or above, you'll have to serve jail time. (Va. Code § 18.2-12.1 (2023).)

Penalties for a First-Offense DWI

A first DWI conviction—unless it involves an accident causing serious injury or death—is a 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 one-year license suspension.

(Va. Code §§ 18.2-270; 18.2-270.1; 18.2-271 (2023).)

A driver who is convicted of a first DWI can obtain a restricted license. However, the restricted license will include a six-month ignition interlock device (IID) requirement. (Va. Code § 18.2-271.1 (2023).)

Penalties for a Second-Offense DWI

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 first offense.

A second DWI conviction within 10 years is a 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 three-year license suspension, and
• a minimum six-month IID requirement.

(Va. Code §§ 18.2-270; 18.2-270.1; 18.2-271 (2023).)

For a second offense, the IID requirement applies regardless of whether the driver gets a restricted license. (Va. Code § 18.2-271.1 (2023).)

Penalties for a Third-Offense DWI

A third DWI conviction within ten years is a 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 six-month IID requirement.

(Va. Code §§ 18.2-270; 18.2-270.1; 18.2-271 (2023).)

For a third offense, the IID requirement applies regardless of whether the driver gets a restricted license. (Va. Code § 18.2-271.1 (2023).)

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 (2023).)

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

Injuries. A DWI involving serious 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.) (Va. Code § 18.2-51.4 (2023).)

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 ten 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. (Va. Code §§ 18.2-36; 18.2-36.1 (2023).)

When There Were Minor Passengers

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 (2023).)

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. Motorists who refuse testing face license suspension even if they're never convicted of a DWI charge in court. (Va. Code § 18.2-268.3 (2023).)

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 misdemeanor and generally carries up to a $2,500 fine (including a mandatory minimum fine of $500) and a license suspension of one year. (Va. Code § 18.2-266.1 (2023).)

Plea Bargaining in Virginia DWI Cases

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 carries the same penalties as a normal reckless driving conviction except the 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 (2023).)

Getting Help With Your Virginia DWI

As you can see, the consequences of a DWI conviction are serious. If you've been arrested for or charged with driving while intoxicated, get in touch with an experienced DWI lawyer. A qualified DWI attorney can explain how the law applies to the facts of your case and help you decide on the best course of action.