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May 1 2018

Virginia – s DUI Guide

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I just got arrested for a Commonwealth of Virginia DUI charge. What happens now?

ISSUE ONE:The Virginia Implied Consent / Administrative License Suspension Proceeding: Under Virginia law, any person who operates a motor vehicle upon a highway in the Commonwealth of Virginia shall be deemed, as a condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, if he is arrested for violation of Virginia’s DUI statute or of a similar ordinance within three hours of the alleged offense. This law is known as Virginia s implied consent statute.

Pursuant to Virginia implied consent law, your Virginia license (or your right / privilege to drive in Virginia if you re not a Virginia license driver) was most likely suspended for anywhere from seven to 60 days for failing (BAC 0.08 percent or greater) or refusing a breath test.

You may challenge this suspension by filing a motion for reviewof administrative suspension of driver s license / driving privilege with the general district court. Keep in mind that filing the motion does not mean the suspension will be overturned; rather it means that the suspension may be overturned. Also, this motion and has nothing to do with the DUI charge itself (see below).

ISSUE TWO:The Virginia DUI / Refusal Offense: Separate from the administrative license suspension proceeding is the criminal charge for driving under the influence or DUI and / or the charge of refusal to submit.

The charge of DUI. Under Virginia law, it is unlawful for any person to drive or operate any motor vehicle, engine, moped, or train if:

you have blood alcohol concentration (BAC) of 0.08 percent or more ; or

while you are under the influence of alcohol ; or

while you are under the influence of any narcotic drug(s) or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs your ability to drive or operate any motor vehicle, engine or train safely; or

while you are under the combined influence of alcohol and any drug or drugs to a degree which impairs your ability to drive or operate any motor vehicle, engine or train safely.

Each year, about 31,000 people are convicted of DUI offense in Virginia.

The charge of Refusal to Submit. It is also unlawful for a person who is arrested for a violation of Virginia DUI laws or of a similar ordinance to unreasonably refuse to have samples of his blood or breath or both blood and breath taken for chemical tests to determine the alcohol or drug content of his blood as required by Virginia implied consent law. A first violation is a civil offense and a second or greater violation is a misdemeanor offense.

It is unlawful for minors (persons under 21 years of age) to drive or operate a motor vehicle with a BAC of 0.02 percent or more.

Important: The implied consent / administrative license suspension proceeding and the criminal DUI / refusal to submit case are completely separate from one another.

Will my Virginia driver license be revoked / suspended?

RELATED TO ISSUE ONE ABOVE: Your Virginia driver license (or your right to drive in Virginia if you do not have a valid Virginia license) may be suspended in the administrative license suspension for failing or for refusing a chemical test. This suspension generally lasts from seven to sixty days. Again, you may challenge this administrative suspension by filing a motion with the court. Filing the petition will not necessarily overturn the suspension; rather, it merely provides with a chance to overturn the suspension.

RELATED TO ISSUE TWO ABOVE: If you are convicted of the Virginia DUI charge. you will also lose your license (or your right / privilege to drive in Virginia if you don t have a valid Virginia license) for a year or more. This revocation is separate and distinct from the statutory summary suspension. Talk to your Virginia DUI lawyer for possible suspension and revocation lengths for your situation.

For a first refusal to submit conviction the court will also suspend your driving privileges for one year. This suspension period is in addition to the implied consent / administrative suspension period.

Also keep in mind that your license can be suspended for a variety of reasons unrelated to a VA DUI arrest e.g. reckless driving, drug offenses, eluding a police officer etc.

What is the difference between a DUI, DWI, OWI, DUII, DWAI, OUI, OUIL, etc.

These terms are all acronyms that refer to the offense commonly known as drunk driving. Different states have different names for the crime. For example, in New York the charge is known as driving while intoxicated or DWI. Ohio uses the term OVI; Oregon uses DUII (driving under the influence of an intoxicant).

Virginia law refers to both driving. while intoxicated (DWI) and driving. under the influence (DUI). § 18.2-266. The terms refer to the same crime. The terms DWI and DUI are used interchangeably in Virginia and throughout this website.

What happens if I get caught driving on a suspended license / driving after forfeiture of license?

Driving while your license is suspended or revoked for a Virginia DUI offense should be avoided as it is a new crime. Penalties include fines, jail time, and an additional license suspension or revocation. A third offense of driving after forfeiture of license within 10 years is generally charged as a felony crime with a potential prison sentence and a substantial fine.

I really need to drive. Will I be able to get a restricted / occupational / conditional / probationary permit?

If your driving privileges are suspended or revoked by the court for a Virginia DUI offense, Virginia law may permit you to petition the court for restricteddriving privileges on or after the conviction date. For a first DUI conviction, the court may grant restricted driving privileges at the time of your conviction. For a second DUI conviction, the court may grant restricted driving privileges a fter one year waiting period, if your second DUI offense was within the five years of your first DUI. If your second DUI conviction is between five and ten years from your first conviction, there is a four month waiting period before the court may grant you restricted driving privileges. For a third DUI conviction, the court has the authority to grant restricted driving privileges after three years.

How important is my breath / blood test result?

If you have a trial, your chemical test result will be one of the primary pieces of evidence used to prove impairment. The higher your blood / breath alcohol content (BAC), the more difficult it is to beat the DUI charge. If you are convicted of the DUI offense, BAC s greater than 0.15 percent and 0.20 percent can result in greater penalties. Refer to the table below.

In addition, Virginia law directs that certain presumptions are made based on your blood / breath alcohol content. Under Virginia law, if your BAC measures 0.05 percent or less, it shall be presumed that you were not under the influence of alcohol intoxicants at the time of the alleged offense. If your BAC measures in excess of 0.05 percent but less than 0.08 percent, such facts will not give rise to any presumption that you were or were not under the influence of alcohol intoxicants at the time of the alleged offense, but the chemical test result may be considered with other competent evidence in determining your guilt or innocence. If your BAC measures 0.08 percent or greater, is presumed that you were under the influence of alcohol intoxicants at the time of the alleged offense.

Is a DUI / DWI offense in Virginia a misdemeanor or felony charge?

In Virginia, a DUI is usually a misdemeanor crime. However, a third or greater DUI offense within 10 years is a felony crime. Felony DUI offenses are quite serious and carry the possibility of significant jail or prison time. A first refusal to submit charge is a civil (non-criminal offense). A subsequent refusal to submit is a misdemeanor crime.

What type of penalties might I face if I am convicted of a Virginia DUI charge?

Upon conviction of an Virginia DUI offense, a defendant can receive a variety of penalties including a requirement to enter and complete the Virginia Alcohol Safety Action Program (VASAP). A range of minimum penalties is set forth below:


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