DWI / DUI Defense in Virginia

What happens when you’re charged with DUI in Virginia

Driving Under the Influence and Driving While Intoxicated mean the same thing in Virginia. Both are defined under § 18.2-266, and both carry the same consequences. For most people, a first DUI is a Class 1 misdemeanor — up to 12 months in jail, up to $2,500 in fines, and a one-year license suspension. Penalties get more severe at higher BAC levels and for repeat offenses, and certain circumstances can elevate the charge to a felony.

The first court date is usually the arraignment. The judge confirms you’re the person on the summons, reads the allegation, tells you that jail is on the table, asks whether you’ll hire an attorney, and sets your next court date. In most jurisdictions, if you’ve already hired us, we can either appear for you or get the arraignment waived altogether.

The case after that turns on what happened at each step of the stop. The Commonwealth almost always has the officer’s testimony, the dashcam, the body camera, and either a breath or blood test result — but what they have, and how well it stands up in court, depends on whether reasonable suspicion supported the pull-over, whether the field sobriety tests were administered properly, whether probable cause supported the arrest, and whether the breath or blood test was administered correctly. The cases that get reduced or dismissed are usually the ones with a real procedural or constitutional issue at one of those steps — or where mitigation makes a reduction possible despite the evidence.

That’s where we focus. We file discovery to see what evidence the Commonwealth actually has, read your case for what it is, identify what can be challenged, and walk you through your real options. We don’t guarantee outcomes — Rule 7.1 prohibits it — but we’ll give you an honest assessment of where your case sits, what the realistic outcomes are, and a written quote for the full fee before you decide to hire us. The consultation is free, and so is the quote.

The questions below cover the full chronology of a DWI / DUI stop in Virginia, what the tests actually measure, what your defenses look like, and what to expect from the rest of the case.

How we defend DWI / DUI cases

The first thing we do on any DWI / DUI case is file discovery. We want everything the Commonwealth has — the officer’s narrative, the dashcam, the body camera, the breath certificate or blood test paperwork, the operator’s logs for whatever machine was used, the maintenance records on that machine, the field sobriety test notes. A real defense starts with knowing exactly what the Commonwealth can actually prove, and that means seeing the evidence rather than guessing at it.

From there, we read your case at each step of the stop. Was there a legitimate basis for the stop, or was it pretextual? Did the officer follow the standardized administration protocols on the field sobriety tests, or did he run them the way he always runs them? Was the breath test machine in service and properly calibrated when it was used on you? Was the operator certified at the time? If it was a blood draw, who handled the sample, how was it stored, and is the chain of custody documented? DWI / DUI cases get reduced or dismissed when one of these answers is wrong — and they’re wrong more often than you might think.

Where the evidence holds up, we shift to mitigation. Some judges and prosecutors will reduce a DUI charge to a lesser offense, or impose a lighter sentence within the same charge, when a defendant has done the work to show the court who they actually are: VASAP enrollment ahead of the hearing, alcohol treatment, a clean record before this case, community service, letters of support. We help our clients prepare the strongest mitigation package the case allows, because the same set of facts can potentially produce a different outcome in front of a judge who sees evidence of accountability than one who doesn’t.

Is there a difference between Driving Under the Influence (DUI) and Driving While Intoxicated (DWI) in Virginia?

No, the terminology is often used interchangeably in Virginia and the basis of the offense is defined under Virginia Code § 18.2-266. Although some states may draw a distinction between the two and may make one less serious than the other, Virginia does not.

The language of § 18.2-266 encompasses both operating a vehicle under the influence of alcohol or drugs, specifically defining the act of driving while intoxicated as operating a vehicle while your blood alcohol content is 0.08 grams or more per 210 liters of breath; under the influence of alcohol, under the influence of any narcotic or other self-administered intoxicant, under the influence of some combination of narcotic and alcohol, or while the blood concentration of certain narcotics is at or above certain levels.

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

In most cases, a DWI / DUI in Virginia is classified as a misdemeanor offense. However, certain circumstances enhance the penalty to a felony. For example, a third offense within a 10-year period will result in the charge being a Class 6 felony. If someone was injured or died as a result of your driving while intoxicated or driving under the influence, the charge can also be categorized as a felony.


What are the consequences for a DWI / DUI conviction in Virginia?

The consequences for a DWI / DUI conviction can be harsh:

First Offense:

  • Criminal record
  • Fine up to $2,500
    • Mandatory minimum of $250
  • 12-month suspension of your driver’s license
    • You may be eligible for a restricted license at the discretion of the court
    • If and when a restricted license is granted, ignition interlock will be required for at least six months.
  • Up to 12 months in jail
    • 5 days are mandatory if your Blood Alcohol Content (BAC) is greater than 0.15% and not higher than 0.20% at the time of arrest
    • 10 days are mandatory if your BAC is greater than 0.20% at the time of arrest
  • Vehicle impoundment
  • Restitution to the locality for the cost of law enforcement
  • Completion of the Virginia Alcohol Safety Action Program (VASAP) which is typically a 10-week program of evaluation, education, and treatment

Second Offense:

  • A second offense carries enhanced penalties beyond those of a first offense
  • Fine up to $2,500
    • Mandatory minimum of $500
  • 3-year suspension of your driver’s license
    • If the prior offense was more than 5 but less than 10 years ago, you may be eligible for a restricted license 4 months after your conviction.
    • If the prior offense was less than 5 years ago, you may be eligible for a restricted license one year after your conviction.
    • If and when a restricted license is granted, ignition interlock will be required
  • Up to 12 months in jail
    • 10 days are mandatory if the prior offense was within 10 years
    • 20 days are mandatory if the prior offense was within 5 years
    • 10 additional days are mandatory if your BAC is above 0.15% and not higher than 0.20%
    • 20 additional days are mandatory if your BAC is above 0.20%
  • Completion of VASAP

Third and Subsequent Offenses:

  • A third or subsequent offense carries further enhanced penalties beyond those of a second offense.
  • If the prior offenses were within 10 years of this offense, it will likely be prosecuted as a Class 6 felony.
  • Mandatory indefinite suspension of your driver’s license
    • No restricted license until your license is restored
  • Mandatory minimum fine of $1,000
  • Up to 5 years in prison
    • 90 days are mandatory if your third offense was within 10 years of your prior offenses
    • 6 months are mandatory if your prior offenses were within 5 years
    • 1 year is mandatory upon your 4th+ conviction within 10 years.
  • If you are the sole owner of your car, it will be subject to forfeiture

Underage DWI and DUI Offenses:

  • If you are under 21 years old, you cannot purchase, possess, or consume alcohol. Violation of this law can result in its own separate charge.
  • Virginia has a zero tolerance policy so if you are under 21 years old and are convicted of a DWI or DUI, the court will impose the same penalty as they would for those 21 years old and older.
  • If you are charged with a DWI or DUI under § 18.2-266.1 (Persons under age 21 driving after illegally consuming alcohol; penalty) and are found to have a BAC between 0.02% and 0.08%, the Court penalty will include a suspension of your driver’s license for one year and a mandatory minimum of $500, or require that you complete at least 50 hours of community service.

Can I refuse to take a sobriety test when the officer pulls me over in Virginia?

Yes, and it’s often a good idea to exercise your right to refuse the field sobriety tests.

It’s important to draw the distinction between refusing to perform field sobriety tests and refusing to submit to a breath or blood test once you have been arrested. Much of the confusion comes from not knowing that there are typically two breath tests — the Preliminary Breath Test administered on the side of the road, and the blood or breath test administered after you have been arrested.

Here’s the chronology of a typical DWI / DUI arrest:

  1. The officer pulls you over for whatever reason, whether it is because your driving behavior establishes reasonable suspicion that you are impaired or for some other traffic offense.
  2. The officer asks you for your license and registration. While doing so, the officer is looking for clues as to your level of impairment. Are you emitting an odor of alcohol? Are you slurring your words? Are you having trouble understanding and following directions, or unable to quickly produce the requested documents? You should not refuse to comply with these requests. You can remain silent, but you do have to provide your license, registration, and insurance to the officer when requested to do so.
  3. The officer may then ask you to step out of your car. Again, this is not something you should refuse to do. The Supreme Court has been clear on this issue for years, ruling that the officer can require that you step out of your car when you are pulled over for allegedly violating a traffic law. You can and probably should remain silent, but you must follow these instructions.
  4. At this point, the officer may start asking you about alcohol consumption or just tell you that they suspect you may be impaired or intoxicated. Anything you say to the officer can be used against you. Miranda warnings are another issue, and the admissibility of these statements depends on the unique circumstances of the arrest. Most defense attorneys would argue that the stop itself is an arrest under Miranda and any statements you make prior to the Miranda warning are inadmissible, but that is a complex issue that warrants a separate discussion.
  5. This is when the field sobriety tests start, and you can refuse to perform these tests. These are completely voluntary, and for all intents and purposes, performing these tests is allowing the officer to strengthen the evidence against you.
  6. The standard field sobriety tests commonly accepted as providing a scientific correlation between your performance on the tests and impairment are the one-leg stand, the nine-step walk and turn, and the horizontal gaze nystagmus test. Many officers will often ask you to perform non-standard tests that have no scientific correlation between performance and impairment or intoxication, but in most cases the judges are going to let them testify to their observations of your performance despite the lack of scientific correlation. Again, these are all voluntary, and refusal to perform them often puts you in a better spot to defend yourself. That being said, the Virginia Supreme Court has decided that refusal to perform the tests is circumstantial evidence tending to show your awareness that your consumption of alcohol would affect your ability to perform such tests, but does not show a consciousness of guilt. In virtually all cases, the consequences of performing these tests drastically outweigh whatever benefit you’re hoping to achieve by showing the officer that you are not impaired or intoxicated.
  7. Often, the officer will now offer what is called a Preliminary Breath Test, which is not admissible in court and cannot be used against you. What is often left out is that this is not the test that triggers a § 18.2-268.2 (Implied Consent) or § 18.2-268.3 (Penalties for Refusal) violation for failure to submit to a blood or breath test post-arrest. The sole purpose of the Preliminary Breath Test is to establish evidence of alcohol and probable cause to arrest you on suspicion of a DWI / DUI.
  8. At this point, the officer will decide whether they have probable cause to arrest you. If you performed the field sobriety tests and preliminary breath test, you probably have given the officer enough evidence to warrant an arrest. At this point, you will likely be read Miranda warnings, handcuffed, and taken to the jail.
  9. Once you are at the jail or even while you are in the police car, the officer will begin the post-arrest process of reading you implied consent and advising you that failure to submit to a breath or blood test will result in a separate charge and license suspension.
  10. This second breath test is the one that carries the consequence of a license suspension. Whether it is a good or bad idea to refuse this test depends on a wide variety of factors and the area is entirely too complex to fully expound here. Some attorneys feel that it’s always a good idea to refuse, because there are enhancements in penalties for DWI / DUI convictions for elevated blood alcohol levels — if your BAC is above 0.15 you face mandatory jail time, and if you refuse at the jail then there isn’t a BAC level to trigger mandatory time. Others feel that refusing and getting charged with refusal gives the prosecutor a bargaining chip to use in obtaining a guilty plea to the DWI / DUI — for example, “I’ll drop the refusal and let the defendant get a restricted license on a guilty plea to the DWI / DUI.” There isn’t a hard-line piece of advice to give on this, as the facts and circumstances of each case are incredibly unique. If you’ve already been charged, give us a call and we’ll go over what steps you can take now to best position yourself for court.

Are there other enhancement penalties for things like having my kids in the car, having an accident, or injuring or killing another person while driving?

Yes, there are certain circumstances that can elevate a DWI / DUI charge into something much more serious.

If your kids are in the car with you and you are arrested for a DWI / DUI in Virginia, you may be charged with a felony for child endangerment. If you seriously injure or kill another person while driving under the influence or driving while intoxicated, you may also be charged with a felony. An accident itself doesn’t automatically elevate the charge, but the circumstances of the accident often produce evidence the Commonwealth will use against you, and any injury that resulted from the accident becomes part of the case.

If my license is suspended for a DWI / DUI, how will I get to work?

The Virginia Code requires that the Court suspend the driver’s license of anyone convicted of a DWI / DUI in Virginia. That being said, the Court is authorized to permit a restricted license in certain circumstances. Possible restrictions include:

  • Transportation to and from work
  • Transportation to and from VASAP meetings
  • Transportation during working hours
  • Transportation to and from school
  • Transportation to and from medical appointments
  • Transportation for a minor child under your care
  • Transportation for child visitation
  • Transportation to and from court, probation services, or other court-required programs
  • Transportation to and from a place of worship
  • Transportation to and from child support programs or appointments
  • Transportation to and from jail
  • Transportation to and from work release programs
  • Other restrictions as specified by court order

Keep in mind that the judge will require that you install an ignition interlock device for part or all of the time that you are operating with a restricted license, and that failure to comply with or driving outside of your restrictions can result in a separate criminal charge and/or loss of your restricted privileges.

Alternatively, first-time DWI / DUI offenders with a BAC under 0.15 can receive a restricted license allowing driving anywhere, anytime, provided an ignition interlock device is installed for 12 consecutive months. In this case, your license would not be restricted.

What is the legal presumption of impairment, what does that mean, and how will it affect my DWI / DUI case?

A blood alcohol level of 0.08% creates a rebuttable presumption that you were driving under the influence of alcohol. A rebuttable presumption of impairment can also be created when there is a certain amount of cocaine, methamphetamine, phencyclidine, or 3,4-methylenedioxymethamphetamine in your blood.

If your BAC is below 0.08% but at or above 0.05%, there is no presumption of impairment. If your BAC is below 0.05%, there is a presumption that you were not impaired.

The rules are even more stringent if you are underage or are a commercial driver.

The presumption here is not necessarily that you were impaired at 0.08% — rather, the presumption is that you had a BAC of 0.08% or above at the time you were driving. Remember that the actual test can often be administered an hour or more after you were actually operating the vehicle.

Once the BAC certificate is admitted into evidence and it creates a presumption of impairment, the presumption is very hard to refute. Most of the time, highlighting things like your performance on the field sobriety tests, good driving behavior, etc. is not enough to convince the judge to ignore the presumption. We can certainly make those arguments, and sometimes they do prove successful, but it’s not common that it will be effective.

It’s not about arguing that you were not impaired despite the BAC. Most judges feel that the language of § 18.2-266 makes any driving with a BAC above 0.08% illegal, and the correct analysis for challenging the presumption is not to highlight that you were not impaired at the time of driving, but rather that your BAC was lower at the time of driving than the certificate would indicate.

What is Blood Alcohol Content, how is it measured, and how is it used against me in court?

BAC is your blood alcohol content and can be measured by either taking a sample of your blood or your breath.

Breath testing for alcohol is possible because alcohol is eliminated through the lungs in a small but measurable amount. The scientific process is complex, and a thorough understanding of the equipment that is used, how it is maintained and calibrated, and how it actually works is paramount in best defending you in an alcohol-related case.

Blood tests are less commonly used, but are still routinely found in accident cases or when the officer suspects that the substance causing impairment may not be alcohol but some other self-administered narcotic. In these cases, the blood tests can be processed at the state laboratory at the Department of Forensic Science or at hospitals. The practical considerations of defending either are unique and require an attorney with experience cross-examining not just a law enforcement officer, but also toxicologists, doctors, nurses, and any other custodian who may have handled your sample.

The results of these tests are then used to determine your level of impairment and whether a presumption thereof is created in your case.

How can I be charged with a DWI / DUI when I hadn’t had anything to drink, or my Blood Alcohol Content was 0.00%?

The Virginia legislature considered that not all impairment or intoxication may come from alcohol and criminalized all driving that may have been affected by the use of a self-administered intoxicant. If your BAC comes back as 0.00% in a breath test, it is very likely that you will be administered a blood test.

If you test positive for some intoxicant that is not specifically listed in the DWI / DUI statute, the Commonwealth will need to bring a toxicologist in to testify about the result. This is typically found in most marijuana-related DWI / DUI cases.

Do I have to appear for my DWI / DUI court date if I live out of state?

Yes, you must appear in court for your DWI / DUI case whether you live in Virginia or not. If you don’t appear, an arrest warrant may be issued, your local law enforcement may arrest you, and extradition proceedings may begin.

Skipping court can turn a situation where you weren’t likely to actually serve any jail time into one where you sit in jail for weeks waiting for Virginia to come get you. On top of that, you’ll be charged with the separate offense of failing to appear for court, and any leverage we may have had in mitigation might be completely gone. It is always a bad idea to skip court.

What is an arraignment? What is going to happen, and do I need to hire an attorney before I am arraigned?

Yes, if your case is set for arraignment, you must appear. In certain cases in a few jurisdictions, we may be able to appear on your behalf or have your arraignment waived altogether, but you should absolutely confirm with your attorney regarding your appearance at your arraignment.

An arraignment in Virginia is the first appearance an accused person will make before the Court, and the procedure typically goes like this:

  • The Court will make sure that you are the person on the summons;
  • The Court will inform you of the allegation and make sure you understand what you are charged with;
  • You will be advised that the charge you are facing carries the possibility of a jail sentence;
  • You will be informed of your right to be represented by an attorney;
  • You will be asked if you intend on applying for a court-appointed attorney, plan to hire your own attorney, or plan to represent yourself; and
  • The Court will inform you of your next court date.

It is not typically necessary to hire an attorney prior to your arraignment, but it is always a good idea to at least consult with one before you go to court.

Will the court give me an attorney if I can’t afford one?

Typically yes — if you are eligible for a court-appointed attorney, the judge can appoint one to you.

If you are indigent, you may be eligible, but the threshold is very low to miss out. If you are unsure if you may qualify, give us a call and we’ll give you an honest assessment of whether or not you’re going to be appointed an attorney. Keep in mind that court-appointed attorneys aren’t exactly “free,” as their cost is simply added to your court costs on the back end of your case in the event you are found guilty of some offense.

Can I or should I represent myself on my DWI / DUI charge?

You certainly have the right to, but DWI / DUI defense is a complex area of law that is both fact-intensive and wrought with technical issues. There is also an incredible depth of case law that you may not be aware of.

Having a knowledgeable advocate with you throughout the process is invaluable. They can make sure that the Commonwealth can actually prove its case against you, walk you through the process of best situating yourself for your case before the trial date, and navigate the post-trial process with you.

What can I do to best prepare myself for court on my DWI / DUI charge?

Contact an attorney as soon as you can to get a good idea of what you’re facing and how best to prepare yourself for your DWI / DUI court date.

A lot of factors go into how a case might play out in the various jurisdictions where we handle DWI / DUI cases. In some courts and with some charges, you might not need to do anything proactively. In other situations, it really is in your best interest to prepare as much mitigation as possible leading up to your court date. In other cases, we need to prepare for trial early to make sure any witness testimony we’d like to present or other evidence is preserved for a court date that could be months away.

Feel free to give us a call as soon as you can so we can get to work on how we’ll best put together a defense package for your DWI / DUI case.

What defenses do I have to a DWI / DUI charge?

There are many. Which defenses might be best suited for your case depend entirely on the facts and circumstances of your specific case. Defenses can range from a stop that lacked reasonable suspicion, an arrest that lacked probable cause, challenges to the chain of custody of your blood sample, the administration of the blood or breath test, technical issues with the machine(s) used to determine your BAC, the officer’s qualifications to administer the test, the lack of evidence, or improper evidence — it really runs the full gamut.

Not every case has every defense available to it. Some cases have several different avenues to take, and we want to narrow down to a couple of very strong issues. Other cases are handled perfectly by law enforcement from top to bottom, and we want to focus more on mitigation. It really depends on your set of facts.

As with any case, we first start with filing discovery to see what evidence the Commonwealth has against you and let that guide our defense strategy. We start with everything at our disposal, and as we get more information about your case, we let the strength of the evidence guide what opportunities are available to defend you.

Can I get my DWI / DUI conviction expunged?

Expungements for DWI / DUI are very narrowly tailored in Virginia, and practically speaking, convictions cannot be expunged except through a Governor’s pardon.

There are situations where you may be found not guilty, or the charge is dropped, or the charge is amended, where we may be able to expunge part or all of the record. It’s worthwhile to speak with an attorney seasoned in both DWI / DUI defense and expungements prior to starting that process. We can help guide you if you are interested in learning more.

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The next step is a conversation

If you’ve been charged with a DWI / DUI in Virginia, the next move is talking to someone who handles these cases. We’ll review what you’re facing, give you an honest read on the strengths and weaknesses of your case, and provide a written quote for the full fee before you decide whether to hire us. The consultation is free, and so is the quote — whether or not you decide to work with us.

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