DWI and DUI in Virginia
Elements of the Offense
There are two different ways for the prosecution to secure a conviction for driving while intoxicated (DWI) in Virginia. In both cases, the prosecution must also prove that the defendant was driving or operating a motor vehicle.
The first way is to prove that the defendant had a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath. In this case, the prosecution does not need to prove that the defendant’s driving was impaired in any way. Impaired driving ability can be presumed through the introduction of admissible chemical test results.
The second way, often referred to as driving under the influence (DUI), is for the prosecution to prove that the defendant was operating the vehicle under the influence of either alcohol, drugs, or some combination thereof. With respect to drugs, there are separate threshold levels for cocaine, methamphetamine, phencyclidine, and methylene-dioxymethamphetamine.
Source: Virginia Criminal Code § 18.2-266.
First Conviction: The penalty for a first conviction for DWI is a maximum fine of $2,500, imprisonment for up to 12 months (all of which can be suspended), and a one-year suspension of the person’s driving privileges beginning on the date of judgment. However, if the blood alcohol concentration of the defendant at the time of testing was between 0.15 to 0.20, there is a 5-day mandatory minimum sentence of incarceration that cannot be suspended. If the blood alcohol concentration was greater than 0.20, there is an additional mandatory minimum sentence of 10 days of incarceration. There is also a 5-day mandatory minimum sentence and a $500-$1,000 fine for anyone convicted of DWI committed while transporting a person 17 years old or younger.
Second Conviction: The penalty for a second DWI conviction within a 5-year period is a mandatory minimum fine of $500 and confinement in jail for 30 days to one year. Twenty of those days cannot be suspended. A second conviction within a 5 to 10 year period is punishable by a mandatory minimum fine of $500 and at least 30 days in jail, 10 of which cannot be suspended. If, upon a second DWI conviction, the person’s blood alcohol concentration was between 0.15 to 0.20, the penalty is an additional mandatory minimum period of 10 days. If the level is above 0.20, there is an additional 20 days of mandatory incarceration. A second conviction within a 10-year period also results in a three-year period of license suspension, beginning on the date of judgment.
Third Conviction: The penalty for a third DWI conviction within 10 years is a term of imprisonment of one to 5 years and a maximum fine of $2,500, with a mandatory minimum sentence of 90 days. If the three convictions were within 5 years, the mandatory minimum sentence is 6 months and a $1,000 fine. A third conviction within a 10-year period also results in an “indefinite” revocation of the person’s driving privileges.
Fourth and Subsequent Convictions: A person convicted of a fourth DWI conviction within a 10-year period will be sentenced to a mandatory minimum term of imprisonment of one-year incarceration and fined at least $1,000.
Source: Virginia Criminal Code § 18.2-270. Virginia Criminal Code § 18.2-271.