Virginia’s DWI Laws and Conviction Penalties

As in other states, driving while intoxicated (DWI) is illegal in Virginia. But each state, including Virginia, has its own way of defining the offense and penalizing DWI offenders.

This article explains in layman's terms when a person can be convicted of impaired driving in Virginia. For people facing DWI charges, this article covers some of the penalties that can result from an arrest or conviction as well as some options for avoiding or reducing certain penalties.

Virginia's DWI Laws

To get a DWI conviction in court, the prosecutor must prove that the accused was driving or operating a motor vehicle:

• while "under the influence" of drugs or alcohol
• with a blood alcohol concentration (BAC) of at least .08%, or
• with an unlawful drug concentration in his or her system.

In other words, a DWI conviction can be based on BAC, actual impairment, or a failed drug test.

What It Means to Drive or Operate a Vehicle Under Virginia's DWI Laws

Most people are pretty clear on what "driving" means. But a DWI conviction in Virginia doesn't require actual movement of the vehicle.

Virginia courts have interpreted "operation" to mean being in actual physical control of a vehicle that's on a highway or engaging the machinery of the vehicle that, alone or in sequence, will activate the motive power of the vehicle. In other words, a person that has the present ability to engage the vehicle can be convicted of a DWI offense.

Factors of consideration in determining whether a driver was operating a vehicle include things like whether the keys were in the ignition, whether the driver was located in the driver's seat, whether the engine was running, and whether the driver was awake or asleep.

How Virginia Law Defines "Intoxication"

To convict a driver of a DWI, the prosecutor must also show that the person was "intoxicated." Prosecutors essentially have three ways to prove intoxication in Virginia.

DWIs Based on Actual Impairment

Prosecutors can prove actual impairment by showing that the consumed alcohol or drugs observably affected the behavior, disposition, speech, and general manner of the driver. To prove impairment, prosecutors might use evidence like the testimony of the arresting officer, expert witness testimony related to the effects of the substances the driver ingested, and test results showing what substances the driver had in his or her system.

Per Se Alcohol DWI Charges

All states have "per se" DUI laws that allow prosecutors to prove intoxication based purely on the driver's BAC. In Virginia, the BAC limit is .08%. When a prosecutor proves the driver had a BAC of .08% or more, proof of actual impairment isn't required for a DWI conviction.

Per Se Drug DWI Charges

Virginia, unlike most other states, also has a per se drug DWI law. This law allows prosecutors to establish driving intoxication by proving the driver had a prohibited level of certain drugs in his or her system. These drugs include methamphetamine, cocaine, and PCP.

Penalties for a 1st or 2nd (Misdemeanor) DWI in Virginia

The penalties for a DWI conviction depend primarily on the number of prior DWI convictions within the last ten years. Generally, a first or second DWI conviction in will be a misdemeanor offense.

Jail and Fines for Virginia Misdemeanor DWI Convictions

The fines and jail time for a first and second DWI conviction are as follows.

Substance Abuse Evaluations for Virginia DWI Offenders

All persons convicted of DWI in Virginia must complete the Virginia Alcohol Safety Action Program (VASAP). Based on an initial alcohol and drug assessment, the participant will be prescribed a tailored treatment program. This program can include inpatient treatment or alcohol education classes (minimum 20 hours). The participant must pay for the program costs of $300 to $400.

Virginia DWI Probation

After serving the minimum mandatory jail term, offenders usually must complete a period of probation. Probation can last for up to one year. During probation, the offender must comply with all VASAP requirements. The court can also impose additional requirements such as abstaining from drug and alcohol use, maintaining gainful employment, and attending a victim impact panel.

Virginia's DWI Aggravating Circumstances

The penalties for a DWI conviction are more severe if the offense involved young passengers or an especially high BAC level. A driver can also face enhanced penalties if he or she has a prior conviction that occurred within the past five years.

Enhanced DWI Penalties for Child Passengers

An impaired driver who was transporting a minor passenger will be fined an additional $500 to $1,000 and serve a minimum five days in jail.

Enhanced DWI Penalties for Drivers With Recent DWI Convictions

A driver with a DWI conviction within the last five years must serve at least 20 days in jail before release.

Enhanced DWI Penalties for an Excessive BAC

If the driver's BAC was .15% or higher, the minimum jail requirement will be increased. The table below outlines the minimum jail periods for DWIs involving an excessive BAC.

Virginia's Felony (3rd Offenses, Injuries, and Deaths) DWI Penalties

A DWI can be charged as a felony if the offender has at least two prior convictions within the last ten years. Once a person is convicted of felony DUI (including impaired vehicular manslaughter or assault) all future DUI offenses will be considered felonies.

A felony DWI generally carries one to five years in prison and $1,000 to $2,500 in fines. At least 90 days must be served in jail prior to probationary release and the offender must complete the VASAP. A third-offense DWI that occurs within five years of the prior two carries at least six months in jail.

License-Related Penalties for Virginia DWI Offenses

Impaired driving generally results in some sort of driver's license penalties. The duration and type of penalty depend on the driver's BAC, criminal history, and cooperation with law enforcement.

License-related penalties can result from a DWI arrest and/or conviction.

Virginia's Implied Consent Law

During the DWI investigation, the officer will often request the driver to submit to a blood or breath test to determine the presence of any alcohol or drugs. Virginia's implied consent law states that all drivers lawfully arrested for a DWI are required to comply with testing. Refusal to comply can result in separate driver's license penalties.

Refusing a Chemical Test in Virginia

When a driver arrested for DWI refuses to submit to a lawful chemical test, the arresting officer will serve a citation notice to the driver and report the refusal to the court. For a refusal, the court will generally suspend the driver's license for one year.

A test refusal will generally be a misdemeanor criminal offense if the driver had a prior DWI conviction or test refusal. A conviction carries a three-year driver's license suspension. If the refusal was of a breath test, the offender will also face up to one year in jail and a maximum $2,500 in fines.

The suspension period for a test refusal will run consecutively (back-to-back) to any other suspension the driver might receive for a DWI conviction.

Immediate Suspension for Test Failure or Refusal

When a driver refuses testing or submits to but fails a test, the officer will issue an immediate suspension notice. This driver's license will be suspended for seven days for a first offense and 60 days if the offender has a prior test failure or DWI. Drivers with at least two prior refusals or failures will be suspended until the criminal charges are resolved.

License Suspension for a DWI Conviction

Drivers convicted of DWI will also face license penalties. Upon receiving the DWI conviction report and reviewing the driver's record, the Department of Transportation (DOT) will:

• suspend the driver's license for one year for a first offense
• revoke the driver's license for three years for a second offense, and
• revoke the driver's license permanently for a felony DUI conviction.

After five years, a permanently revoked driver can petition for license reinstatement.

Ignition Interlock Requirements in Virginia

For a second or subsequent DWI conviction, drivers are required to use an ignition interlock device (IID) for at least six months prior to license reinstatement. During the restriction, the driver is permitted to operate a vehicle only if equipped with an IID.

Getting a Hardship License in Virginia

Drivers suspended for a DUI conviction are generally able to apply for a restricted driver's license. The restricted license requires the holder to install and maintain an ignition interlock device on any operated vehicles as well as complete VASAP. Repeat offenders must complete at least four months (three years for felony DWIs) of the revocation prior to applying for the hardship license.

The IID hardship license is not available for drivers suspended due to a chemical test refusal.

Virginia's Underage DWI Laws

Virginia's "zero tolerance" policy prohibits any person under the age of 21 from driving a vehicle with a BAC of .02% or more. A conviction is a misdemeanor and can but generally doesn't result in jail time.

Jail and Fines for Virginia Underage DWI Convictions

As a misdemeanor, a conviction carries a fine of $500 to $2,500 and up to 12 months in jail. The fine may be reduced by instead performing community service.

License Suspension for Underage DWIs in Virginia

For underage drivers, a BAC sample of .02% or more will result in an immediate seven-day license suspension. This suspension lasts 60 days for a second offense and until the criminal trial for a third offense. If convicted, the driver faces a one-year license suspension.

Suspended drivers are eligible for a restricted license but must complete the VASAP and install an IID.

Talk with a Virginia DWI Lawyer

Virginia is tough on impaired driving and doesn't offer diversion programs like many other states. However, a qualified DWI lawyer can assess your case and let you know what options you have. Getting legal assistance is important anytime you're facing criminal charges.