DUI (driving under the influence) and DWI (driving while intoxicated) are used interchangeably in Virginia, referring to driving under the influence of any intoxicants (unlike in some other states where DUI and DWI are different offenses). The Code of Virginia officially refers to the offense as Driving While Intoxicated (DWI).

Virginia has some of the harshest DWI laws in a country.

The first and second offense DWI is Class 1 Misdemeanor, punishable by up to 1 year in jail, up to $2,500 fine, and 12-36 months driver’s license suspension. You are considered intoxicated when your blood alcohol concentration (BAC) level is 0.8 or higher. The penalty increases when your BAC is 0.15 or higher, carrying mandatory jail time.

The third and subsequent DWI offenses are felonies and punishable by up to 5 years in prison and permanent revocation of your driving privilege.

There are a few important things you need to know when you are facing DWI charges:

1. The officer has to have a valid reason to pull you over, which could be any minor traffic violation and a probable cause to arrest you. The probable cause is determined by the “totality of circumstances” that can include your glassy eyes, slurred speech, the smell of alcohol, your performance of the field sobriety tests, and other factors. You do not have to consent to field sobriety tests.
2. There are 2 tests you will be offered to determine your BAC. First, the officer will offer you a preliminary breath test at the scene. The results of this test are used solely for the probable cause purpose and are not admissible in court. You have every right to refuse this test and you should refuse it! The second test will be offered after you get arrested which would be performed at the station. Virginia “implied consent” law requires all drivers lawfully arrested for DWI to submit to blood/breath test and if you refuse it, you are facing an additional charge of Unreasonable refusal.
3. You don’t have to be actually “driving” in order to be charged with DWI. It is a very common misconception. Virginia statute makes it illegal to “drive or operate” motor vehicle while intoxicated. “Operate” under Virginia law means being in “actual physical control” of the vehicle. This means you can be charged with DWI even if you are just sitting/sleeping in your vehicle with the key in the ignition.

If you charged with DWI, contact a knowledgeable Virginia criminal defense attorney who can evaluate your case, review and analyze the evidence, and advice your of a best approach, based on the specific facts and the circumstances of your case.

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