Drunk Driving

What is a DUI?

Driving or operating a motor vehicle under the influence (DUI) includes both driving under the influence of alcohol, as well as driving under the influence of any narcotic drug, any self-administered intoxicant or drug or substance which impairs the ability to drive/operate a motor vehicle, engine, or train safely. That description also includes impairment by medications legally prescribed to you if the medication impairs your driving. Illegal substances which can be the basis for DUI include but are not limited to cocaine, marijuana, methamphetamine, phencyclidine (PCP), and methylenedioxymethamphetamine (MOMA ecstasy).

The law in Virginia includes not only driving but also operating a vehicle under the influence. A vehicle does not need to be in motion. This means that if the keys are in the ignition and you are operating any part of the vehicle (e.g. the head lights, the radio, the heater, etc.) you are operating a motor vehicle and can be charged for DUI.

What happens if I am stopped for driving under the influence?

If an officer doing an investigation or a stop has reasonable suspicion that the person driving or operating a vehicle is under the influence of drugs or alcohol, he must then determine whether there is probable cause to believe that the person is legally impaired.

The officer may ask you to perform several field sobriety tests to measure your balance and response to instructions. The officer may also make notes of your appearance, speech, and demeanor, including noticing an alcoholic beverage in your vehicle or on your person. (Keep in mind that in Virginia having an open container of an alcoholic beverage in the car with you is prohibited.) In addition, the officer may ask you to give a preliminary breath test at the site to determine the level of alcohol in your system. If the preliminary test administered at the roadside registers a blood alcohol concentration of 0.08 percent (by weight by volume) or more, or 0.08 grams or more per 210 liters of breath as indicated by a preliminary breath test, you have met the threshold for being charged.

However, if you are under 21 years old the threshold for being charged is 0.02 (see the zero-tolerance section ahead). The on-site preliminary breath test is not mandatory and a person’s refusal to take such test cannot be used in any prosecution. Also, the preliminary breath test results cannot be admitted into evidence in any prosecution for DWI, however, it can be used as evidence to support the officer’s probable cause determination. There are also roadside tests available for drug impairment.

What happens if I am arrested for DWI?

If the officer determines that there is probable cause to determine that the person driving or operating a vehicle is legally impaired as a result of being under the influence of alcohol or drugs then he will proceed to arrest and take you to the station. Once at the station you will be required to give a breath or blood sample for a chemical test to determine the alcohol and/or drug content of your blood. Failure to do so will result in further charges for “refusal” which carries additional penalties and a one-year loss of license. When you drive on a public street or highway in Virginia, you are implying that you consent to providing a breath and/or blood samples for alcohol or drug content. The result of this test can be used in evidence in any prosecution for DWI.

What does zero tolerance for alcohol for under age 21 mean?

Presumably you are under age 21 when you are reading this information. Virginia has enacted a zero tolerance policy regarding alcohol consumption if you are younger than 21; the technical blood alcohol level is 0.02 or higher. This contrasts with the 0.08 required to charge those over age 21. Conviction for underage DUI includes a mandatory minimum fine of $500 or performance of at least 50 hours of community service, plus suspension of privilege to drive for one year.

What are the penalties for DUI regarding alcohol or drugs for those over 21?

If breath/blood tests provide results showing blood alcohol content at 0.08percent or higher, (see exception for under age 21 above) you’re presumed to be driving while impaired. For first-time convictions DUI is a Class 1 misdemeanor which imposes a mandatory minimum fine of $250, driver’s license suspension for one year, and possible incarceration up to 12 months. However, if the blood alcohol content is at least 0.15, but not more than 0.20 it requires a minimum mandatory 5 days jail sentence and 10 days if the BAC is 0.21 or higher. Subsequent convictions result in increased fines, increased suspension of license, and increased jail confinement. Those found guilty will also be referred to court-approved counseling programs, the cost for which is also the responsibility of the defendant. If you are permitted to have a restricted license, an ignition-interlock system must be installed in your vehicle (this involves a substantial fee) and it applies to those under age 21 as well.

Can my license be suspended before I am convicted?

If you’re arrested for DUI and if you refuse a breath test, or if your breath test indicates 0.02 results or more and you are under 21, you will immediately lose your license for 7 days. This is in addition to other penalties available to be imposed.

What if I am operating a boat or moped or motorcycle or riding lawnmower?

Yes, driving under the influence laws apply to these vehicles/categories as well.

So You’re 18 is presented by the Virginia State Bar Conference of Local and Specialty Bar Associations.
For print copies of So You're 18 contact (804) 775-0521 or [email protected].