Menu
As you will see on this website, I have been practicing DUI / DWI law in Northern Virginia Courts (Fairfax, Prince William, Loudoun, Arlington, and Alexandria) since I was a prosecutor for 4 years and had a major role in writing the DUI laws from 1994-2017. This web site page will attempt to answer all your questions about DUI / DWI. Let me say, however, that many lawyers will agree that this area of law is amongst the most complex in the Virginia Code. It includes thousands of cases, numerous pages of code, scientific evidence and numerous Constitutional Law issues. So obviously, I won’t be able to cover every minute aspect. Every case is different as no two cases have the same facts. That is why you should not rely on this web page, but rather, meet with an attorney to go over all your facts.
Over my nearly 40 years of being a lawyer, this is perhaps the #1 question I get. In Virginia, courts treat DUI and DWI interchangeably under Va. Code §18.2-266. Either term can apply when a driver is under the influence of alcohol, drugs, or both, or when a per se blood alcohol concentration (BAC) is 0.08% or higher. In some other states, I hear that DWI is for blood alcohol level .08 or above and DUI is for blood alcohol levels below .08. In Virginia, there is no such distinction. For the rest of this article, I will use the term DUI to mean both DUI and DWI.
Even below 0.08%, a DUI/DWI can be charged if the Commonwealth alleges you were impaired. .06% – .08% BAC is “evidence of intoxication.” That means that a person is not “presumed” intoxicated (more on this “presumption” later). But it does mean that the Court can consider it when deciding if a driver was intoxicated. Under .06% BAC is considered presumed sobriety.
The best way for me to explain DUI/DWI (from now on, let’s just refer to it as DUI), is for me to explain its history. In 1876, Carl Benz (of Mercedes Benz) filed his patent for his “vehicle powered by gas engine.” People loved it and started buying them. Then, people started consuming alcohol and driving, which caused them to get into accidents. So the legislature passed a law that said: “It is illegal to drive while intoxicated.” Note that there are only two elements of the offense:
In America, a Prosecutor must prove each element beyond a reasonable doubt. Usually, it is easy to prove a Defendant was driving. If the Defendant was caught behind the wheel, then he was obviously driving. (In accident cases whereby the time the police arrive the Defendant was found outside of his car, proving the Defendant was driving is more difficult.) So, the whole case was usually all about whether the Prosecutor could prove intoxication. Back in the 1900’s, Prosecutors had no scientific evidence. Thus, unless the Defendant was obviously “drunk,” they could not prove it. Consequently, in the 1920’s the government commissioned a famous study where a group of scientists tested the level of alcohol in people’s blood and determined how much alcohol would make a person intoxicated. I don’t know what level this group originally set as “intoxicated,” but I do recall that in the 1980s (when I was in High School), it was 0.12. In other words, the law stated that anyone whose blood alcohol level is above a .12 or above shall be presumed intoxicated. And, if a Defendant is “presumed” to be intoxicated, then game over – he will be found guilty. Over time, the level was dropped from 0.12, to 0.10 (when I was a young prosecutor), to .08 in about 1995 (when I was in the legislature — the Federal Government threatened to take away our Federal transportation funding if we did not lower the presumptive intoxication limit to 0.08.)
(Note: Back in the 1920’s all that was available was a blood test. Now, the state also uses a breath test. Think of these things as just two different systems to measure the same thing – blood alcohol level. Just like a Celsius thermometer and a Fahrenheit thermometer. They both can tell you what the freezing point of water is. One says 0 degrees Celsius and the other says 32 degrees Fahrenheit).
Fast forward to today. If a person is arrested for DUI and tests at 0.08 blood alcohol level or above, one is “presumed” to be intoxicated. (The actual standard, to comply with a US Supreme Court decision is “permissible inference of intoxication.” But the bottom line is that if the blood alcohol test comes into evidence and it is above a .08, generally speaking, it is “game over” and the Defendant will be convicted.) The main reason Defendants need a lawyer is to make every effort to make sure that this blood alcohol test is not admitted into evidence. If it is not admitted, then the Prosecutor is back where he would be in the 1900’s and having to prove guilt beyond a reasonable doubt without scientific evidence – and just like in 1900, it is extremely hard for a Prosecutor to win without scientific evidence.
Everyone should use a DUI lawyer to represent him or her in a DUI or DWI case. (Note: As stated above, in Virginia, a DUI and DWI are the same thing.) It is a Class 1 Misdemeanor crime – a very serious charge. The maximum penalty is up to one year in jail, up to $2,500 in fines, and (at least) 12 months of a license suspension. This is the same level crime as a Shoplifting and Assault & Battery.
Few people get the maximum charge. However, experienced and honest DUI lawyers will tell you that the following punishments are quite common for a first offense:
As one can see, the punishments are stiff. So, what can a DUI lawyer do for you?
Your experienced lawyer will have a first goal — to win your case. In America, the government must prove a criminal case “beyond a reasonable doubt.” That means that a DUI lawyer does not have to “prove” anything. The government must prove the case. But a good DUI lawyer doesn’t just sit and do nothing. In addition to making the government prove it, an experienced DUI lawyer will investigate many paths of defense. To name a few:
(1) Were you lawfully seized? Did the Police have a lawful reason or ordering you to pull over? A DUI lawyer will want to make sure that the Police can articulate a lawful reason why you were pulled over. As an example, our firm has won cases where the Police stated, “The Defendant was swerving within his lane.” However, the lane is designed to allow you to use the entire lane. Swerving outside the lane is illegal, but maintaining a path within the lane is legal unless the drifting within the lane is excessive.
(2) Were you lawfully arrested? A DUI lawyer will want to make sure there was Probable Cause (or a Warrant) supporting your arrest. The Constitution states that the government must show there is a reasonable reason to believe you may have been intoxicated. It is not illegal to consume alcohol and drive. It is only illegal to be intoxicated. The government must show some evidence of intoxication, or the DUI lawyer will get the case dismissed for an illegal arrest. Recently we won a case because, even though our client had a very high alcohol level of 0.17, he was talking normally without a slur, had good balance, and did not perform any coordination tests (commonly called “Field Sobriety Tests”). There was simply no lawful reason for him to have been arrested.
(3) Was the breath or blood test accurate? For breath test cases, your DUI lawyer will want to consult the Division of Forensic Science records to see if the breath test machine used on you was properly certified, reading accurately and operating properly. An experienced DUI lawyer will obtain the test and certification records from the Division of Forensic Science on all cases. While it is not common for a machine to malfunction, it does happen. Recently, we found handwritten notes on the certification papers, “Out of Tolerance.” Obviously, if it is out of tolerance, it is not reliable, and if it is not reliable, it is not admissible in Court. As for Blood Tests, the Virginia Code gives an extremely detailed list of requirements for accuracy. For example, the arm must be cleansed with non-alcohol sterilizers, the vials must be labeled in a certain way and mailed in a certain way, and you have the ability to get your own independent analysis done.
(4) Are there any other defects in the case? At your trial, an experienced DUI lawyer will be able to recognize holes in the Prosecutor’s case. For example, did the Prosecutor prove you were actually driving? If the Police came to the scene of an accident, and he did not actually see you driving, can he prove you were actually driving? Or, if multiple Police Officers were working the case, can the arresting Officer show that he observed you the entire time and did not see you consume any alcohol after driving. Remember the charge is Operating Under the Influence – not being under the influence after one stops operating a car.
Virginia takes impaired driving seriously. Penalties depend on BAC, prior history, and case facts.
Refusing a lawful breath/blood test can trigger license suspension even if you’re not convicted.
First refusal is typically a civil license suspension; subsequent refusals can bring criminal penalties. New laws allow for restricted driving privileges for first offense Refusals.
After arrest with BAC ≥ 0.08 or test refusal: 7-day suspension for first offense; longer for priors (and until trial on certain subsequent offenses).
No. Drivers are not legally required to take field sobriety tests (FSTs) during a traffic stop. However, refusal may still lead to an arrest if the officer observes other signs of impairment.
It’s important to note that Virginia’s Implied Consent Law does require drivers who are lawfully arrested for DUI/DWI to submit to chemical BAC testing (breath or blood). Refusing those tests results in an automatic license suspension—one year for a first refusal and up to three years for subsequent refusals.
You do not get to choose. Usually, the police will offer a breath test. If you refuse, they will get a search warrant for your blood and force you to give a blood test.
Yes. As stated above, the key is for your lawyer to get the BAC test out of evidence. Common defense strategies include:
Beyond court penalties, a conviction can lead to:
Repeat offenses carry heavier fines, longer jail time, and can escalate to felony charges.
There is no law that says someone has to have an attorney. They can represent themselves. While not mandatory, having a skilled Northern Virginia attorney greatly improves your outcome. A lawyer can safeguard your rights, challenge unreliable evidence, negotiate with prosecutors, and pursue reduced penalties or dismissal. Legal representation can often mean the difference between losing your license and keeping your freedom.
Virginia law requires drivers to submit to breath or blood tests if they are lawfully arrested for DUI and driving on a “highway of the Commonwealth.” Note that in this context “highway” means any street open to the public. This is known as the Implied Consent Law. Refusing a test can lead to an automatic driver’s license suspension, even if you are not convicted of DUI. The first refusal results in a one-year suspension, and additional refusals can lead to longer suspensions and criminal charges. It is important to understand that refusing a test does not mean DUI charges will be dismissed, as prosecutors may rely on other evidence to pursue a conviction.
An Administrative License Suspension (ALS) occurs immediately after a DUI arrest in Virginia. If you are arrested for DUI and either refuse a breath test or have a blood alcohol concentration (BAC) of 0.08% or higher, your driver’s license will be automatically suspended. The length of the suspension depends on whether it is a first or subsequent offense. A first-time offense results in a seven-day suspension, while repeat offenses carry longer suspension periods. Challenging an ALS requires filing a request with the court within a specific timeframe. Understanding these time limits is important for protecting your driving privileges.
After a DUI conviction or administrative suspension, some drivers may be eligible for a Restricted Driver’s License, which allows limited driving privileges. This license typically permits travel to work, school, medical appointments, or other court-approved locations. In many cases, installation of an ignition interlock device (IID) is required to obtain restricted driving privileges. Petitioning for a restricted license must be done through the court, and the judge has the discretion to grant or deny the request. Having legal representation can improve the chances of obtaining approval.
An Ignition Interlock Device (IID) is a breathalyzer installed in a vehicle that requires the driver to provide a breath sample before the car will start. Virginia law mandates IID installation for certain DUI convictions, particularly for those seeking a restricted license. The device records all breath test results, and any failed attempts may be reported to the Virginia Alcohol Safety Action Program (VASAP) and the court. Failure to comply with IID requirements can result in additional penalties. Proper use and maintenance of the IID are necessary to maintain driving privileges.
The Virginia Alcohol Safety Action Program (VASAP) is a court-ordered education and treatment program required for many individuals convicted of DUI in Virginia. VASAP provides alcohol and substance abuse education, monitors compliance with court-ordered treatment, and oversees ignition interlock requirements. Completing the program is often a condition for regaining full driving privileges. Noncompliance with VASAP can result in further legal consequences, including extended license suspensions or additional court action. Enrollment in VASAP is a critical step for those convicted of DUI to meet their legal obligations.
