Written by attorney Luke Joseph Nichols

Baby DUI, Wet Reckless, Refusal, and Several Other DUI Related Crimes in Virginia.

DUI for Drivers Under 21 (Baby-DUI)

Do not let the name fool you. Baby-DUIs are serious stuff. Va. Code § 18.2-266.1 makes it illegal for anyone under 21 to drive while he has a BAC of .02 -.08. If a person under 21 has a BAC of .02 or more, then he can be charged with the same statute as a person over 21. Many underage drinkers do not realize that they can be arrested for drinking and driving while they are still sober.

DUI After Driver’s License Is Revoked, Suspended, or Restricted

According to Va. Code § 18.2-272 (B), it is a crime for any person who has had his license revoked, suspended, or restricted to drive with a BAC of .02 or above. This law is particularly problematic for drivers with restricted driver’s licenses who think they can have two beers and still drive because they are not drunk. The consequences of a conviction of 18.2-272 are very similar to DUI, but a conviction can also result in the driver’s car being impounded for up to 120 days at $60 per day.

Refusal to Submit to Breath or Blood Testing

Va. Code § 18.2-268.3 states that every person who is arrested for DUI within 3 hours of driving on any public road or public parking lot in Virginia has to submit to a breathalyzer test, a blood test, or both.

However, the police must first read a form explaining the refusal law to the driver, and the officer administering the test must advise the accused of his right to observe the process of analysis and observe the BAC reading on the machine before he is tested. Also, a copy of any printout of the results must be offered to the driver, and the driver is asked to sign it.

Refusal to submit is a common charge that prosecutors use to bully defendants into tough sentences. However, refusal laws are extraordinarily technical and require great attention to detail on the part of the police. A good attorney should know all of the procedural requirements of a refusal conviction and should use any mistakes by the police to her client’s utmost advantage.

Transporting a Minor While Under the Influence

Va. Code § 18.2-270(D) increases the penalties for a DUI if the crime was committed while there was a minor (anyone under 18) in the car. These penalties include mandatory jail time and increased fines. Many college students on their way home from a party forget that their friends may not be adults and are shocked to find themselves in jail for transporting a minor while under the influence. Parents who are convicted of DUI while having their children in the car will likely find themselves facing much more serious charges.

Even if you are just arrested for simple DUI, if you had young passengers in the car make sure your attorney knows this fact as soon as possible. The prosecution may try to amend your charges from DUI to one of these more serious charges.

DUI Related Child Abuse/Neglect

Being arrested for DUI while having a minor in the car can, in more egregious cases, be considered felony child abuse under Va. Code § 18.2-371.1(B). The Virginia Court of Appeals has upheld cases where mothers arrested for DUI were also convicted of felony child abuse because the court believed that driving drunk with a minor in the car demonstrated “reckless disregard for human life."

DUI and Maiming

In addition to the various codes dealing with vehicular homicide, Va. Code § 18.2-51.4 creates a special felony for anyone who severely injures another person while driving under the influence. Conviction can result in up to five years in jail, indefinite loss of license, lawsuits, and many other extremely serious consequences.

Driving with an Open Container

Under Va. Code § 18.2-323.1, it is illegal to drive on any public road or public parking lot with alcohol in reach of the driver unless the alcohol is in a factory-sealed container. Many people charged with DUI are also charged with this crime in order to create extra leverage over them during trial, and a good attorney is essential to thwart these tactics.

DUI While Driving a Commercial Vehicle

Drivers of commercial vehicles can be charged under either of two DUI laws that are unique to commercial vehicles. Va. Code § 46.2-341.24(A) is exactly the same type of crime as a normal DUI with its five different ways of being found guilty. However, Va. Code § 46.2-341.24(B) states that a driver of a commercial vehicle can be arrested for DUI if he is driving with a BAC of .04 or more.

Drivers who have a CDL should not hesitate to get an attorney if they are arrested for DUI or similar offenses. The rules regarding driver’s licenses are much stricter for commercial drivers.

Wet Reckless

Va. Code § 46.2-852 defines “reckless driving" straightforwardly as driving dangerously. A “wet reckless" simply means a drunk driver who is charged with reckless driving instead of DUI. Reckless driving is still a serious criminal charge, but police officers sometimes charge drivers with a wet reckless when the officers are lacking evidence of DUI and do not want the drivers to hire an attorney.

Drunken in Public (DIP)

Va. Code § 18.2-388 makes it a crime to be intoxicated while in public. This charge is common for drivers and passengers who are stopped by police on the way to or from their car.

Assault/Battery on an Officer

Assault under Va. Code §18.2-57 is a grossly misunderstood charge that is often used as leverage against a driver who has been aggressive with officers during a DUI arrest. “Assault and battery" means any harmful or offensive touching, or putting someone in immediate fear of a harmful or offensive touching. A touch does not have to hurt or injure to be battery, and it does not even have to make contact to be assault.

Poking an officer in the chest, waving your fingers in his face, taking a swing, kicking, or even thrashing around could potentially be an assault on a police officer even though no one was hurt.

Assault on a police officer in Virginia is a Class 6 felony and can get you up to five years in jail and a $2,500 fine. If you are arrested, just relax and follow instructions.

Obstruction of Justice

Obstruction of justice is a less severe but much broader way to get in trouble when being arrested for DUI. A person can be charged with obstruction under Va. Code §18.2-460 when he 1) obstructs law enforcement officers in the performance of their duties, 2) threatens or attempts to intimidate officers, or 3) knowingly makes false statements to police while officers are investigating another driver or person.

Obstruction of justice is a Class 1 misdemeanor and is punishable by a maximum of 12 months in jail and a $2,500 fine.

Resisting Arrest (Misdemeanor Fleeing)

Under Va. Code §18.2-479.1, “resisting arrest" means fleeing from the police after the police try to arrest you. Fleeing can mean running or walking only a few steps. Resisting arrest is a Class 1 misdemeanor and is punishable by a maximum of 12 months in jail and a $2,500 fine. If you are arrested for DUI, just relax and call your attorney.

Eluding (Car Chase)

If a driver refuses to pull over the car when ordered to do so by police, that driver can be charged with eluding police under Va. Code §46.2-817. Simple eluding is a Class 2 misdemeanor (up to six months in jail). However, if a driver disregards the safety of others, then eluding becomes a Class 6 felony (up to five years in jail).

Additional resources provided by the author

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