Driving While Intoxicated/ Driving While Under the Influence:

What do you do when you get pulled over by law enforcement and you just had a couple drinks during the evening?    

You are out with some friends.   Having a great time.    Eating, talking, and having a few alcoholic beverages.  It is getting late - you decide it is time to go home.   You walk out to the parking lot - hop in the car - you are thinking what a great night you just had.   The key goes into the ignition. You put the car in reverse - pull out and drive.   You are on the public road.   You are driving a few minutes - you are almost home - suddenly you see the lights flashing from your review mirror.  Oh geez - law enforcement is on your tail.   Your brain freezes.   What to do now?   Your wonderful time has possibly just come to an end.

What should you do OR don’t do next?

One thing is for certain - you do not want to disregard law enforcements signal to stop.  Pull over immediately and to an area which is safe and where your vehicle does not impede traffic.    Sit tight and wait for law enforcement to approach.  Do no attempt to speed away or trying to escape by hiding.   You do not want to be charged with “Eluding”- under Virginia Code Ann. 46.2-817 - “Disregarding signal by law-enforcement offer to stop; eluding police; penalties”.  

Now, It is understandable you are in fear and your survival and flight instinct kicks in. But the right instinct is to stay and deal with the consequences rather than attempting to flee, being caught, and catching an additional misdemeanor or felony charge.   Although you stay, this Attorney strongly suggests that you remain silent - until you can hire an attorney who can help you reach the best conclusion pertaining to your circumstances.

Also - beware that if you hear sirens and/or see the law enforcement lights come upon you and try and take off - there is a good chance you can panic and drive recklessly.    In some instances you may be charged for both a DWI DUI and Reckless driving (depending on the type of reckless driving committed).   There are several reckless driving statutes.    A good lawyer could advise when you should or should not have been charged for both crimes together.  Do not let yourself get convicted for the two crimes together when the law may not permit.  Hire a lawyer who keeps up with current laws.

Virginia Statute regarding Eluding - Virginia Code Ann. 46.2-817:

“When a person receives law enforcements audible or visible signal to stop and then drives his/her vehicle in a such a manner as to constitute “a wilfull and wanton disregard” as to interfere with or endanger the operation of police, deputy(ies), or trooper(s) - penalties can be severe.   Although one may only be charged with a Class 2 misdemeanor, there are circumstances which can lead to a felony Class 6 or Class 4 conviction.  One’s license can be suspended by the courts and by the Department of Motor Vehicles.    So, follow the rules - sit still and wait until law enforcement approaches the vehicle.

Law Enforcement interactions:

So, Law enforcement approaches the vehicle.   You are asked for your license, registration, and proof of insurance.   You are nervous and uncomfortable.  Who wouldn’t be when pulled over by police?   Whether you are guilty or not of a crime - the whole experience is usually unpleasant.   You are fumbling around for your documents.   They are not organized neatly nor sitting where you thought they would be in the glove compartment.   The next thing you know - you are out on the road being asked to take a preliminary breadth test and to perform field sobriety tests.   Should you blow?    Should you walk the 9 steps and turn around?   Should you lift your leg and count?     What does it mean when law enforcement shines a light into your eyes to determine eye movement? 

Answer:  Police are making a determination whether there is probable cause to arrest!

The smell of alcohol and erratic driving: Can equal a charge under VA Code Ann. 18.2-266.

No matter- most people who are driving erratically or committing infractions who smell and admit to drinking alcohol normally get charged under VA Code Ann. 18.2-266 (Driving Motor Vehicles while Intoxicated) statute.   You do not necessarily need a .08 blood alcohol content to be found guilty for Driving while Intoxicated.   Law Enforcement can charge you based on your statements and conduct. Sometimes an admission of taking a prescription drug or having an officer spot an empty pill bottle in your vehicle or some marijuana can land you in some serious trouble.   Whether or not marijuana laws have changed drastically over the last couple years - one should still not get behind the wheel when high from drugs.

Driving while under the influence of marijuana is not a smart move.

Per Se Driving Under the Influence DWI DUI:

There are Per Se Offenses regarding driving while under the Influence of Alcohol and/or Drugs.   For instance when you blow a 0.08 concentration or more regarding alcohol - then you are essentially presumed drunk.     When you have 0.02 milligrams of cocaine, 0.1 milligrams of methamphetamine, or 0.01 milligrams of phencyclidine in your blood at the you are presumed under the Influence.  And of course, there may be a combination of alcohol and drugs in your system where the court may consider the defendant presumed drunk.

When you a hire an experienced attorney such as Sheryl Shane, there may be challenges to be made regarding blood alcohol content and whether or not there are drugs found in your system which caused you to drive in manner demonstrating you were impaired while operating a motor vehicle on the Commonwealth of Virginia highway.   Levels of alcohol and drugs in your system may be challenged.  Hire a seasoned attorney to protect your interests.    You do not want to end up in jail or prison, pay fines, pay for ASAP classes and an ignition interlock, and lose your license to drive if you can avoid it.

Punishment for DWI DUI:  First and Subsequent Offenses - Jail and or Prison and Fines

VA Code Ann. 18.2-266

The first conviction for a simple DWI DUI if your attorney cannot get the charge reduced or dismissed - is no more than (12) months in jail.  A $250 - $2,500.00 fine, ASAP classes, and an ignition interlock system placed in your vehicle plus a loss of license. A restricted license may be granted.  DMV demerit points will be assigned. Automobile insurance will be an issue.  The costs are astounding.

Offenses where the defendant blows demonstrating a blood alcohol content of at least 0.15 results in a (5) five day mandatory minimum jail sentence if the defendant is found guilty.    A blood alcohol content of 0.20 or more conviction will result in a mandatory minimum jail sentence of (10) ten days.    These are minimum mandatory jail times imposed by statute.  The Judge cannot suspend the mandatory minimum proscribed by statute.  On the other hand, the court may impose incarceration for a period of time much longer than the mandatory minimum.  It depends on the facts and law pertaining to your case, the prosecutor, the defense attorney and the defendant’s ability to follow defense lawyers recommendations prior to court and during court.  If charged with driving while intoxicated - follow your attorney’s advice - take the necessary steps to avoid the harshest sentences.  Permit your attorney an opportunity to possess the necessary tools to get the charges dismissed, reduced, or kept at a minimum.

VA Code Ann 18.2-270 - Enhanced Punishments DWI DUI

A second offense of DWI or DUI within (10) ten years of a prior offense when convicted results in a minimum mandatory jail confinement of not less than (10) ten days.   Confinement in jail shall not be less than one month.   There is a mandatory minimum fine of five hundred dollars and zero cents ($500.00).   To explain this more thoroughly - if convicted of a (2nd) DWI or DUI within ten years of the prior conviction - you will actually sit in jail for at least (10) ten days.   When the statute states “not less than one month”  - there will be at least one month imposed but it may be suspended by the court based on compliance with court order - excepting the 10 days you must serve.   Higher blood alcohol content and/or drugs can result in longer terms of incarceration.

A second conviction of DWI or DUI within (5) five years after a prior offense will land someone one in jail for a mandatory minimum of (20) twenty days.  There is a mandatory minimum of five hundred dollars and zero cents ($500.00) fine.

Third Convictions for DWI or DUI within a (10) ten or (5) five year period can be charged as felony - Class (6).    This means that the defendant is looking at a possible (5) five years imprisonment.   When the DWI DUI is committed within ten years of the prior - there is a 90 ninety day mandatory minimum imposed regarding incarceration.   If the third offense is within (5) five years of the prior - there is a (6) six month mandatory minimum one must serve if convicted.    This attorney has been in court and seen defendants sentenced to much longer incarcerations for a third offense by the Judges.    There is a substantial concern that drivers driving while drunk or high on drugs or both are going to cause harm to themselves and to others.   Especially when they continue to sit themselves behind the wheel over and over again ignoring their intoxication.  And don’t forget a third conviction within certain statutory periods can end in Felony conviction.  When convicted of a felony - there are rights taken away involving guns and voting.  A convicted felon caught possessing a gun - can be charged with very serious felonies.  There are long term ramifications for repeatedly driving while intoxicated repeatedly.  DWI and DUI convictions damage your life - hire an attorney to get you help and either get the case dismissed, mitigate damages, or limit penalties when it seems all the evidence is stacked against the defendant.  

When a defendant obtains a fourth conviction for driving while intoxicated within a (10) ten year period - he or she will be looking to face a (1) one year mandatory minimum or jail and or prison time.   There will be mandatory minimum fine of $1,000.00.  Vehicles owned by the defendant may be subject seizure and forfeited.



Hit and Run Accidents -  VA Code Ann. 46.2-894

There are many automobile accidents which are caused by or involving drunk drivers.  Drivers in these situations may panic.   If there are no witnesses - the driver may leave the scene hoping never to be discovered.  Later when the driver’s head clears and everything begins to sink in - he or she calls an attorney.   What should be done?  In many circumstances, law enforcement has already learned the identity of the driver - through witnesses, cameras, GPS or other means before there is the opportunity to seek legal advice.  Law enforcement may even arrive at your home prior to your return.  Questions are asked - it is all too easy to make a self - incriminating statements whether or not you were actually the party at fault regarding the accident.   Perhaps someone else was driving earlier - perhaps the other driver involved in the accident was at fault but you were afraid because you believed you may have been presumed intoxicated due to the alcohol or marijuana smell on your breadth.  So you just left the scene.

There are other instances - where a driver is involved in an accident.   He or she thinks everything is alright - why stick around?  He or she had a DWI DUI in the past.   Best to leave before police come.   A quick glance - no damage.   If someone was hurt - you would have been approached.   Na - everything is ok.   It never happened.   An hour later - knock knock on your door.   It’s the police - “we would like to speak to you”.   There were witnesses, there is a video, there is forensic proof demonstrating you hit and ran.  Just tell us what happened and it will go easier on you.

The Commonwealth of Virginia has put into effect legislation involving such incidences.  Under Virginia Code Ann. 46.2-894:  Duties are imposed upon drivers in the event that they are involved in an accident resulting in injury, death, or damage to property.    A conviction may result in a misdemeanor or a felony - depending on the damage caused to a person and or property.

We all know that driving while Intoxicated is dangerous.   People from all walks of life are charged.   A person living an exemplary life who has a momentary lapse of judgement and gets behind the wheel…..a repeated offender……Convictions are serious for all.   There is possible jail and/or prison time, fines, ASAP, ignition interlock and court costs.     A loss of license interferes with your day to day life.   What a horrible tragedy to deal with.

Hire a good attorney.     Someone familiar with the courts -  A lawyer who has handled a multitude of DWI DUI cases.   The punishments are costly.   We all fall down - it is how we get back up and move forward and make positive changes to improve upon our present and past mistakes.    Look to your future.   We cannot always erase our acts.   But we can navigate through the system to work to achieve the best outcomes.   Make the right choice regarding how to move forward with this.

18.2-36.1 Manslaughter - serious crime - heavier punishment - DEATH!

Not much could be worse than driving while drunk or under the influence of drugs and causing the death of an innocent person.

Under VA Code Ann. 18.2- 36.1 - A person who unintentionally causes the death of another person while violating VA Code Ann. 18.2-266 (Driving while Intoxicated statute), may be found guilty of involuntary manslaughter.   And, if the conduct of the accused is deemed so gross, wanton and culpable as to show a reckless disregard for human life, he or she may be found guilty of aggravated involuntary manslaughter, a felony punishable by a term of imprisonment of not less than (1) one nor more than 20 years, one year of which shall be a mandatory minimum term of imprisonment.

An aggravated involuntary manslaughter conviction will result in a mandatory minimum confinement of (1) one year.   The sentence will be a term of imprisonment of not less than one year and not more than twenty years of confinement.

Important Note: The prosecution may additionally seek charges under any other homicide statutes.

  • Maiming of another resulting from Driving While Intoxicated

Maiming as a result of driving while intoxicated under VA Code 18.2-266 when deemed as having been done in a manner so gross, wanton, and culpable as to demonstrate reckless disregard for human life - when one has unintentionally caused serious bodily injury to another can result in a Felony Class (6) six conviction.   When the result adds on the factor of permanent and significant physical impairment - the charge is upped to a Class (4) Felony.

When determining whether or not a serious bodily injury has occurred - the court will look to whether there was an injury which involved a substantial risk of death, extreme physical pain, disfigurement, protracted loss of the function of a bodily member, organ, or mental faculty.  Experts may be used at court.   A good attorney will research the law thoroughly.

Drivers license may be revoked under VA Code Ann. 46.2-391.

Aggravating Factor regarding VA Code 18.2-266 - Carrying or Transporting Child

Carrying or transporting a child (17 years) seventeen or younger in the vehicle when driving while intoxicated can lead to a mandatory (5) five days imprisonment. An additional $500 to $1,000 fine may be imposed.

Note:   If carrying your own child in the vehicle while intoxicated - also be wary of also being charged with criminal Abuse and Neglect.


VA Code Ann. 18.2-272. Driving after forfeiture of license.

Expect to lose your privilege to operate a motor vehicle on the roads of the Commonwealth of Virginia as a result of DWI DUI conviction.   Keep in mind:

  • Cannot drive with 0.02 blood alcohol content - When your license restricted, suspended, revoked.
  • Driving without certified ignition interlock system - it is a class 1 misdemeanor - your license is subject to administrative revocation.


A program of the legislative branch of the Commonwealth of Virginia

VA Code Ann. 18.2-271.2

ASAP A condition of Probation for DWI DUI

If convicted of Driving While Intoxicated in the Commonwealth of Virginia, one will learn quickly of the term “ASAP”.    A DWI DUI conviction will result in forwarding the defendant to participate in the ASAP program.   ASAP is sort of like a quasi-probation office for DWI and DUI offenders.   Once referred, the defendant is evaluated, ordered to participate in classes, is responsible for payments of the classes, to install an ignition interlock if driving, and to follow any other policies and procedures proscribed.


VA Code Ann. § 46.2-391.01 Administrative enforcement of ignition interlock

Courts as a condition of license restoration or a condition of a restricted license may order an Ignition interlock System Device.   If the Court fails to do so in required cases, the DMV should enforce the requirements relating to installation of such systems administratively.

If you have been charged or know someone who has been charged of Driving while Intoxicated - call an experienced Fairfax criminal defense Attorney - Sheryl Shane.     Permit her to help steer you in the right direction.

Practicing in Fairfax County, Fairfax City, Vienna, McLean, Great Falls, Falls Church, Arlington, Alexandria, Prince William, Manassas, Culpeper, Stafford, Carroll, Loudoun , Herndon, Sterling, Ashburn, Leesburg, Loudoun, Fauquier, Winchester.