Driving under the influence (DUI) and/or driving while intoxicated (DWI) are two terms, sometimes used synonymously, to describe any offense wherein a driver is operating a motor vehicle whilst under the influence of alcohol or drugs. In Virginia, the official term for this charge is driving while intoxicated. DUI/DWI can be combined with other charges, so it is not uncommon to see someone charged with both driving while intoxicated and other traffic offenses such as speeding or driving on a suspended or revoked license.

What goes into a DWI charge?

In order to establish the fundamentals of this charge, we have to look to Virginia Code §18.2-266, which states the following:

“It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration (BAC) of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article, (ii) while such person is under the influence of alcohol, (iii) while such person is under the influence of any narcotic drug or any other self-administered  intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle, engine, or train safely . . .”

Cutting out some of the legalese in this section, there are 3 particularly relevant factors that establish a DWI: 1) A blood alcohol concentration of 0.08 or more, assuming the driver is 21 years old, 2) Any alcohol-based intoxication, and 3) An impaired driving ability as a result of the consumption of alcohol, narcotics, or both in tandem. Typically, officers will assess the damage to your ability to drive by considering the totality of the situation: your behavior, mannerisms, any smells, alcohol bottles, etc. A test known as a breathalyzer (the chemical test mentioned above) is administered to assess the level of alcohol in the bloodstream and is generally considered to be a highly reliable method of measurement.

When it comes to the court, the prosecution will have to establish two things: 1) that the defendant was operating or driving a motor vehicle, and 2) that the defendant was under the influence of intoxicants while doing so (Nicolls v. Commonwealth, 212 Va. 257, 184 S.E.2d 9 (1971)). To be considered intoxicated requires that enough alcoholic beverages have been consumed to affect the driver’s manner, disposition, speech, muscular movement, general appearance or behavior. This change must be visible (Moore v. Commonwealth, no. 0264-99-4, 2000 Va. App. LEXIS 538).

While driving is self-explanatory, the idea of operating a motor vehicle is not. Courts have consistently upheld verdicts wherein a defendant was not caught actively driving but had attempted to start their car. In one particular case, the responding officer had a reasonable suspicion that a man was drunk (likely based on behavioral cues and/or smell), and while the man was not driving, he was seated behind the steering wheel of the vehicle and the key was in the ignition (Enriquez v. Commonwealth, 283 Va. 511, 722 S.E.2d 252 (2012)).

Can I still be charged with a DWI if my blood alcohol content was less than 0.08?

Short answer: yes. In most cases, the burden is on the government to prove that the defendant is guilty beyond any reasonable doubt (Miles v. United States (1880)). However, this is not always true of DWIs. A blood alcohol content of 0.08 means that the defendant is presumed to be guilty of driving while intoxicated, reversing the usual presumption of guilt. If your blood alcohol content was less than 0.08, it is still on the government to provide enough evidence that the defendant was intoxicated at the time of the arrest (Va. Code §18.2-269). The defendant is not required to provide any evidence of their innocence until the prosecutor has exhausted and disproved any and all reasonable hypotheses of innocence (Clemmer v. Commonwealth, 208 Va. 661, 159 S.E.2d 664 (1968))

What if I’m under 21?

Virginia Code §18.2-266.1 states that it is unlawful for any person under the legal drinking age to operate a motor vehicle with a blood alcohol content of 0.02 or above. Even just one beer can satisfy this criterion. While the punishments are less strict for DWI charges under this section, they are still serious. Violation of this section is a Class 1 misdemeanor, and includes the following sentencing requirements: 1) a forfeiture of driver’s license for a period of one year, and 2) either a $500 fine, or a minimum of 50 hours of community service. Those under 21 are eligible for an Alcohol Safety Action Program and a restricted license, as the Court sees fit.

Minors under the age of (18) will face charges at the Juvenile and Domestic Relations Court rather than General District Court where adult cases are handled.  It is important to check warrants and check which Court your case will be heard.   You do not want to show up at the wrong court and miss your court date.

What are the penalties for DWI in Virginia?

DWI punishments, like all crimes, can depend heavily on the frequency of offense, the number of times offended within a particular time period, and aggravating circumstances (such as the level of intoxication). A conviction for second and subsequent offenses will guarantee you jail time, however it is the duty of your DWI attorney to ensure that you receive the lightest possible sentence, if the charge cannot be dismissed altogether. Below is a table detailing the minimum and maximum punishments for DWI offenses at all levels.
















DUI 1st Offense




12 months




5 days


10 days


12 months


DUI 2nd Offense in 10 Years




12 months


10 days


20 days


30 days


36 months


DUI 2nd Offense in 5 Years




12 months


20 days


30 days


40 days


36 months


DUI 3rd Offense in 10 Years


Class 6 Felony


5 years


90 days


100 days


110 days


36 months


DUI 3rd Offense in 5 Years


Class 6 Felony


5 years


180 days


190 days


200 days


36 months

A suspension of drivers’ licenses is common in DWI cases, so make sure that you make contingency plans regarding transportation to work, school, etc. after being charged with a DWI. An arrest for driving on a suspended license subsequent to a DWI arrest can significantly affect your life and cause a loss of license indefinitely or for a more significant time period.  Find a lawyer who not only understands state laws but has also reviewed the DMV administrative procedures.

Was it legal for officers to stop and detain me?

This question is complicated, and no questions of legality should be considered resolved until you have spoken with a qualified DWI attorney. However, the same rules of probable cause apply to being pulled over for suspected drunk driving. If an officer has a reasonable suspicion that a crime is being committed, they are permitted to pull you over. Some examples of probable cause might be an officer seeing an open container in your vehicle, swerving, bizarre behavior, or particularly aggressive driving.

But let’s assume that you were not driving when pulled over. This does not necessarily matter. It can be, when combined with other factors, considered to be operating a motor vehicle even if the car is just in park when you are approached by officers. In one case, it was found that the Defendant was considered to be operating a vehicle when in park because of these factors: 1) the car was still running, 2) the headlights were illuminated, 3) the Defendant was searching through the vehicle for something, and 4) he made statements indicating that he was going home (Leake v. Commonwealth, 27 Va. App. 101, 497 S.E.2d 522 (1998)).

            In another case, it was found that a Defendant could be considered to be operating a motor vehicle simply by turning the ignition. This was considered operation of a vehicle because it was a manipulation of mechanical and electrical equipment in the car and it “engaged the machinery of the car that, alone or in sequence, would active the car’s motive power.” (Floyd v. Commonwealth, no. 568-01-2, 2002 Va. App. LEXIS 440). This has also been upheld in the reverse, with the courts concluding that even though a key was in the ignition, the car had not been started, and thus the defendant was not considered to have operated the vehicle (Stevenson v. City of Falls Church, 243 Va. 434, 416 S.E.2d 435 (1992)).

I did not consent to a breathalyzer or getting my blood tested. Is that legal?

According to Va. Code §18.2-268.2, implied consent for breath and blood tests is provided when you operate any sort of motor vehicle on a Virginia highway. In regards to smaller roads such as those in more rural areas, certain municipal and/or county ordinances can cover the difference between rural routes and public highways.

“A. Any person, whether licensed by Virginia or not, who operates a motor vehicle upon a highway, as defined in § 46.2-100, in the Commonwealth shall be deemed thereby, as a   condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, if he is arrested for violation of § 18.2-26618.2-266.1, or subsection B of § 18.2-272 or of a similar ordinance within three hours of the alleged offense. . .”

In short, this means that although you can technically refuse a breath or blood test after being arrested under suspicion of driving while intoxicated, the police are within their rights to force you to submit to a breath or blood test post-arrest. However, this is not to dissuade anybody from exercising their right to refuse a breath, blood, or field sobriety test. You have the ultimate ability to decline any number of these tests if you have not been arrested, and refusal does not constitute any sort of additional charge. If you refuse, officers have to make a decision about whether or not they have probable cause to arrest you even without screening measures. A high enough blood alcohol content measured at the police station, even after some time has passed, can also lead courts to reasonably believe that you would have been intoxicated at the time of driving or operating the vehicle (e.g., a 0.15% BAC measured at the police station, when the office had stopped a suspect just an hour prior, would lead the courts to believe that the suspect was also highly intoxicated when operating the vehicle).

While it is not a criminal offense to refuse a breathalyzer and or blood test for a first conviction, there are additional penalties that can come from this refusal. The foremost penalty being an administrative suspension of your license. Being an administrative suspension, you are not entitled to a hearing in front of a judge to defend your licensure. Per Virginia Code §18.2-268.3, the first refusal is considered to be a civil offense and your license will be suspended for 12 months. The second refusal, if within ten years of a prior DWI charge or refusal, will get your license revoked for a period of three years.

If you are found guilty of a DWI, these refusal penalties will be tacked on to any period of license suspension ordered by the court after conviction. The time that your license is suspended or revoked prior to your DWI hearing will not apply as a credit to lessen the period of license suspension or revocation ordered by the judge, nor will it apply as a credit towards the mandatory immediate license suspension provisions under Virginia Code §46.2-391.2.

There is one notable caveat to this, and that is that under this statute, the police have three hours to arrest an individual for DWI. Virginia courts have established that arrests for driving while intoxicated that occurred more than three hours after the supposed operation of the vehicle are not proper, and thus any evidence obtained in these circumstances can be considered inadmissible in court (Bristol v. Commonwealth, 272 Va. 568, 636 S.E.2d 460 (2006)).

How would the police know that I was drunk?

Breathalyzers and blood tests are the most reliable ways to determine someone’s level of intoxication. There are two types of breathalyzers: the small handheld one that police officers carry, and the other being a much larger machine found at the police station. The smaller breathalyzer, usually referred to as a PBT (portable breath test) is not enough to produce court-admissible evidence but is enough to justify an arrest. The larger machine at the police station is the one that produces evidence for trial. Breathalyzers work by measuring the amount of pure alcohol, known as ethanol, that is present in the breath. When you drink, all of the alcohol is absorbed by the watery tissue in your body, including that in your lungs. When you breathe in and out, a small amount of the alcohol evaporates and presents itself in your breath. Breathalyzers are considered to be highly accurate due to a lot of testing that suggests that it produces results equivalent to those of a blood test.

Blood tests are far more convincing to most people, as they are much more straightforward. Whenever you drink, alcohol is absorbed by your stomach and small intestines to be passed on to the liver to be metabolized, much like any other liquid. Since the liver can only handle a small amount of alcohol per hour, excess alcohol manifests itself in the blood. Thus, the more you drink, the higher the concentration of alcohol in the blood. Though they are scientifically equivalent to breath tests when it comes to reliability, the reliability of both breath and blood tests can be reduced by, for example, using unsterilized instruments during blood testing or the presence of gasoline in the immediate area during a breath test.

A field sobriety test is a 3-prong test to determine the level of intoxication of a driver, with the intent of establishing probable cause for arrest. The three parts of the standardized field sobriety test are: (1) the horizontal gaze nystagmus (where the officer shines a flashlight in a suspect’s eyes), (2) the walk-and-turn, and (3) the one-leg stand test. The horizontal gaze nystagmus test, or the HGN test, is used to track the movement of your eyes, specifically assessing whether or not there is involuntary jerking of the eyes as they follow light or an object such as a pen.

Are field sobriety test results accurate?

Yes and no. An extreme inability to maintain balance during the one-leg and the walk-and-turn tests would produce a relatively reasonable presumption of intoxication, however there are a multitude of issues with assessing the accuracy of field sobriety testing. For example, the results of field sobriety testing involves the subjective observation of a law enforcement officer, which can be skewed for a variety of reasons. Certain medical conditions, such as those of the eye, can complicate the results of the HGN test, as well as the ability of an officer to administer the test correctly. Even the National Highway Traffic Safety Administration (NHTSA) acknowledges that there are rarely perfect conditions out in the field. Many attorneys choose to challenge the results of field sobriety testing for this reason. The evidence obtained from field sobriety testing is the least compelling, and is challenged in court frequently, especially as it relates to the HGN test.

Remember to call our Fairfax criminal lawyer when facing criminal DWI/ DUI charges.  If you have a friend or family member – be certain to telephone 703-718-5533