LEGAL GUIDE
Written by attorney Standish Alexander | Dec 31, 2010

Virginia DUI Law

Virginia has strict DUI laws. For a first offense DUI in Virginia, there is a mandatory one year license suspension (however the defendant can ask the court for a restricted license). There is a mandatory five day incarceration period for a first offense DUI if the B.A.C. (blood alcohol content) is 0.15% or higher and a mandatory ten day incarceration if the B.A.C. is 0.21% or higher.

A second offense DUI in Virginia within five years of a first offense will result in a three year license suspension with no eligibility for a restricted license for one year as well as a twenty day mandatory minimum incarceration period. A second offense within five to ten years will also result in a three year license suspension, however, the defendant will be eligible for a restricted license in four months. There is a mandatory ten day jail sentence for a second offense DUI within five to ten years of a first offense. A third offense DUI in Virginia within ten years is a felony in Virginia. There is a mandatory three year revocation of the offenders driving privileges in Virginia for three years with no eligibility for a restricted license.

For drivers under 21 having a B.A.C. from 0.02 to 0.08 is a criminal offense punishable by a mandatory six month license suspension and up to a $500.00 fine. Underage drinkers are treated the same as drinkers that have reached the age of majority when their B.A.C. is 0.08 or greater. A DUI will stay on your driving record for 11 years and is six point offense in Virginia. All persons convicted on a DUI must complete VASAP (Virginia Alcohol Safety Action Program).

What is a restricted license?

A restricted license is a limited privilege to drive under certain circumstances. Generally speaking, if authorized by statute, a restricted license can be granted with the approval of a Judge for work related, medically related, school related, child-care related and court related travel. The consequences are very severe if you are caught by the police driving outside of those restrictions. Most Judges will impose jail time and DMV will revoke your license for one year with no eligibility for a restricted license.

Commercial Drivers Beware.

The need for a good attorney is even stronger for CDL (Commercial Driving License) holders. If you are a CDL holder and you are convicted of a DUI you are not eligible for a restricted license. If you are convicted of a DUI in Virginia, and you have a CDL, you will not be able to drive at all during the license suspension period even for work and medically related purposes.

The Stages Of A DUI Arrest.

The Stop.

To successfully prosecute a DUI in Virginia the police have to have lawfully stopped your vehicle. This means that they must either observe a traffic violation or driving behavior that creates a reasonable articulable suspicion that said driver is impaired or that the driver is involved in some sort of criminal activity.

The Investigation.

If the police stop a driver and if he or she looks, smells or sounds like they are impaired they can investigate further. They can ask questions about how much drugs and/or alcohol the driver has consumed. They can also conduct field sobriety tests to determine impairment. Field sobriety tests are tests the police ask a suspect to perform to determine if they are impaired. They may ask the individual to stand and balance on one leg, or walk in a straight line or to close their eyes and touch one finger to their nose. They may also ask the suspect to perform alphabetical or numerical sequencing tests. The results of these tests and the circumstances under which they are given are important. Poor performance on them can result in legally sufficient probable cause for an arrest.

The Arrest.

Based on what the officer has observed as to the appearance of the driver, and/or statements they have made, and/or the results of the field sobriety tests the officer may or may not have probable cause for arresting the driver for driving while intoxicated. If they do not have probable cause for an arrest the results of the breath test at the police station are not admissible in court. However, the driver can still be convicted of a DUI based on circumstantial evidence without a breath test.

The Breath Test And Implied Consent.

Assuming that there was probable cause for a DUI arrest the results of a breath test are presumptively admissible in Court in Virginia. That means that the results will come into evidence unless your attorney can prove that the test was improperly administered or that the machine was improperly calibrated or that there were unique physiological factors that resulted in an inaccurate reading. In addition, if the attorney files a timely objection, the breath test certificate cannot be admitted into evidence unless the breath test operator testifies about the test.

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