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.