Being charged with a DUI can have serious consequences. Knowing the law and your options are essential, which is why we created this guide to being charged with a DUI in Virginia. Let’s jump right in.

The Law

According to Virginia code § 18.2-266, a first offense driving under the influence conviction is a class 1 misdemeanor, which can be punished by a fine of up to $2,500, a jail sentence of up to one year, and a one-year license suspension. Clearly, these penalties reveal the severity with which this crime is viewed.

How are penalties determined?

If you’re convicted there are a number of penalties that you can face, and these are determined by the particulars of your case.

Virginia requires that those convicted of a DUI complete a Virginia Alcohol Safety Action Program (VASAP). Unfortunately, there’s no way around this requirement, if you intend to use your license again.

Even if the substance involved in your DUI wasn’t alcohol, you will still have to complete the program. Typically, VASAP is a 2-hour-per week class, and you must take 10 classes to fulfill the requirement.  If you are convicted of a DUI with a high BAC (.15 or above), you may be required to complete additional treatment classes beyond the 20 hour VASAP program.

Most people charged with a DUI want to know whether they have to go to jail. Jail time is typically given based on the blood alcohol content (BAC) in your blood. For a first-time offender, a BAC under .15 requires no jail time. BAC between .15-.20 requires at least 5 days jail time, and a BAC over .20 requires at least 10 days. Keep in mind that these are minimums.

Additional jail time can be given for extenuating circumstances, such as involvement in an auto accident or injuries to others. Some prosecutors push for jail time in these cases.  A conviction for a second or subsequent DUI carries enhanced penalties outlined in Virginia Code 18.2-270.

Can Lack of Video Evidence Get My Case Thrown Out?

While this works on TV, lack of video evidence is generally insufficient to dismiss a charge for DUI. Do not count on the lack of a video to absolve you of these charges. Many DUI stops do not have any video evidence.  For example, the Alexandria Police Department, as of 2019, does not have dash-cams outfitted in its vehicles.  Some Virginia State Troopers also do not have dash-cams.  Park police (relevant to federal DUI stops on the George Washington Parkway and other federal enclaves) and airport police also do not have dash-cams.  Fairfax, Arlington, and Loudoun police cars do have dash-cams.  It can be very jurisdiction dependent as to whether there will be a dash-cam or body-cam available to review.

What if I Didn’t Have My Rights Read?

Miranda rights are required to be read if there is an interrogation or questioning while you’re in custody.  This allows your answers, while in custody, to be admissible in court if you knowingly, voluntarily, and intelligently waived your rights under Miranda. If you were not interrogated, the lack of your rights being read won’t affect much.

Much of the evidence taken by officers in DUI cases takes place before you’re taken into custody. Field sobriety tests and questioning when you’re pulled over.  There can be situations, however, where a person will be in fact, or in effect, in custody during a DUI stop and Miranda can be implicated.  The seminal DUI case from the U.S. Supreme Court on whether Miranda is implicated during a DUI stop is Berkermer v. McCarty.

If the evidence of statements and field sobriety tests has been gathered in the proper manner, it is not affected by the reading of rights or the lack thereof. Now, after they have decided to place you under arrest, forgetting to read you your rights can result in your further statements being inadmissible.

When Will I Be Able to Drive?

Although state law requires a one year driver’s license suspension, a restricted license is typically granted to a first offender providing permission to drive to work, school, child care, or other important events.

However, Virginia law, since 2012, requires any car registered to you to be fitted with an ignition interlock for a minimum of six months. It needs to be calibrated monthly. You’d be restricted, but at least you would be able to drive to and from your job. 

Another DUI conviction would result in a three-year suspension. You would not be eligible for a restricted license for twelve months if the DUI offense occurred within five years of a prior DUI offense and four months if the new DUI offense occurred with 10 years of the prior DUI offense.  On a third offense DUI, your license is indefinitely revoked–see Virginia Code 46.2-391 et seq for specifics regarding restoration after revocation for a third or subsequent offense DUI.

Is there a difference between a DUI and a DWI?

The short answer is no. Basically, the statute that describes what includes what we call a DUI prohibits operating any machine with an engine when you are under the influence of alcohol or drugs, legal or illicit. Vehicles include trains, buses, and personal vehicles. A person taking medication prescribed by a doctor can still be charged with the crime of operating a motor vehicle under the influence.  However, involuntary intoxication can be a defense to a DUI charge–that is, if the person was not informed of the effects of a drug or was otherwise intoxicated involuntarily (such as being given a drink spiked with a drug).

In some cases, a charge will be listed as DWI for alcohol, DUI or DUID (driving under the influence of drugs), but they all fall under the same law, and they are typically treated as such.

 Guide to DUI in Virginia

If you’re facing a DUI charge in Virginia, we hope this guide begins to answer your questions.