Virginia Dwi FAQs

When charged with a Virginia DWI/DUI, many questions arise about the possible penalties incurred. Since each case is unique, it is imperative that you speak with an experienced Fairfax criminal lawyer as soon as possible to understand the law and your options.

1. What are the penalties for Virginia DWI?
2. What is the definition of DWI?
3. The officer never read me Miranda. Will the case automatically get dismissed?
4. Do I really need a lawyer?
5. Am I automatically guilty if my Blood Alcohol Content, BAC was higher than .08?
6. What is a Refusal charge? What are the penalties for Refusal?
7. What happens if I get caught driving while my license is suspended for DWI?
8. What possible defenses exist?
9. What will happen on my court date?
10. How much is all this going to cost?
11. What’s VASAP/ASAP?
12. I live out of state, can I do ASAP locally?

1. What are the penalties for DWI?
There are a number of factors that can alter the punishment for a person convicted of a Virginia DWI/DUI. Judges will often consider the person’s prior driving record, whether there was an accident, plus other considerations in each case. However, there are minimum punishments which often apply. The minimum punishment for a Virginia DWI depends on how high their BAC is and whether the person has prior DWIs.

  • – DWI 1st, BAC .14 or below
    In these cases, there is no required active jail time. It is not unusual to get all suspended jail time, a fine of about $300 and a 12 month loss of license. Individuals in this category will often be allowed to get a Restricted license to drive to work and for other essential travel, but not for any social purposes.
  • – DWI 1st, BAC .15-.20
    Defendants convicted of their 1st DWI with a BAC between .15-20 face a mandatory 5 days in jail. Additionally, there is likely to be additional suspended jail time, a fine, and a 12 month loss of license. A restricted license may be granted, but typically the defendant will be required to be approved by the ASAP program. The DMV will also require an ignition interlock. Ignition interlock is the device that requires a driver to blow into a machine before their car will start.
  • – DWI 1st, BAC above .20
    Defendants in this category face a mandatory 10 days in jail. They will also face a fine and a 12 month loss of license. A restricted license is possible, but less likely than cases with lower BACs. Enrollment and completion of the ASAP program is also required. If a restricted license is granted, the DMV will require the defendant’s vehicle be equipped with ignition interlock. (Ignition interlock is the device that requires a driver to blow into a machine before their car will start.)
  • – DWI, 2nd in 10 years BAC below .15
    Defendants in this category face a mandatory 10 days in jail based upon it being their second offense. They will also face a mandatory $500 fine. Additionally, a conviction will result in a 3 year loss of license and a requirement to complete the ASAP program. If a restricted license is approved ignition interlock will be required.
  • – DWI 2nd in 10 years, BAC .15-.20
    Defendants in this category face a mandatory 10 days in jail based upon it being their second offense and another 10 days based on the elevated BAC for a total minimum of 20 days. They will also face a mandatory $500 fine. Additionally, a conviction will result in a 3 year loss of license and a requirement to complete the ASAP program. If a restricted license is approved ignition interlock will be required.
  • – DWI 2nd in 10 years, BAC .21 or higher
    Defendants in this category face a mandatory 10 days in jail based upon it being their second offense and another 20 days based on the elevated BAC for a total minimum of 30 days. They will also face a mandatory $500 fine. Additionally, a conviction will result in a 3 year loss of license and a requirement to complete the ASAP program. If a restricted license is approved ignition interlock will be required.
  • – DWI 2nd in 5 years, BAC below .15
    Defendants in this category face a mandatory 20 days in jail based upon it being their second offense. They will also face a mandatory $500 fine. Additionally, a conviction will result in a 3 year loss of license and a requirement to complete the ASAP program. If a restricted license is approved ignition interlock will be required.
  • – DWI 2nd in 5 years, BAC .15-.20
    Defendants in this category face a mandatory 20 days in jail based upon it being their second offense and another 10 days based on the elevated BAC for a total minimum of 30 days. They will also face a mandatory $500 fine. Additionally, a conviction will result in a 3 year loss of license and a requirement to complete the ASAP program. If a restricted license is approved ignition interlock will be required.
  • – DWI 2nd in 5 years, BAC .21 or higher
    Defendants in this category face a mandatory 20 days in jail based upon it being their second offense and another 20 days based on the elevated BAC for a total minimum of 40 days. They will also face a mandatory $500 fine. Additionally, a conviction will result in a 3 year loss of license and a requirement to complete the ASAP program. If a restricted license is approved ignition interlock will be required.
  • – DWI 3rd or subsequent
    Any individual convicted of 3 or more DWIs in 10 years or less faces a felony conviction. Even relative to misdemeanor punishments, these cases have factors that cause tremendous differences in the outcome of the case. A DWI 3rd in 10 years faces a minimum of 90 days in jail. A DWI 3rd in 5 years faces a minimum of 6 months in jail. A 4th DWI faces a minimum of one year in jail.

Every case is unique and has a number of factors that may impact the outcome of the case. The information below is provided only as a general guide about the penalties that may result from a conviction for the outlined offenses.

2. What is the definition of DWI?
A person is guilty of Virginia DWI if the government can prove that the person is operating a motor vehicle with a BAC of .08 or higher or while under the influence of alcohol, or while under the influence of any combination of alcohol or any other self-administered intoxicant or drug.

A person is under the influence if they have consumed enough alcoholic beverages to affect manner, disposition, muscular movement, general appearance or behavior.

Taken together a person is guilty of a DWI if they have a BAC over .08 or, are under the influence. So even if someone doesn’t display signs of intoxication but has a BAC over .08 they may be guilty. Additionally, even if someone has a BAC below a .08 (or doesn’t take the test), but displays signs of intoxication they may be guilty.

3. The officer never read me Miranda. Will the case automatically get dismissed?
Probably not, at least not solely based on that. In Virginia, there is a law commonly referred to as the Implied Consent Law. Under this law, every person who drives on the public highways of Virginia agrees to submit a breath or blood test if they are arrested for suspicion of drunken driving. Because of this “agreement” with drivers, the courts have ruled that after being arrested the defendant doesn’t have to be read his Miranda rights. The cop similarity doesn’t have to allow an arrested person access to a lawyer before taking a breath test.

4. Do I really need a lawyer?
Virginia DWI cases are so complex and have such potentially life-altering consequences that every person charged with a DWI would be wise to retain an attorney. At the very least, it is smart to consult with an attorney before going to court. At the Rosenthall Law Office, we always offer free consultations. Call our office today to discuss your case with an experienced DWI attorney.

5. Am I automatically guilty if my Blood Alcohol Content, BAC was higher than .08?
No, every case is unique. The BAC is not always a guarantee of guilt. If the officer has violated your rights in any way or if the test cannot be shown to be accurate, you may still be not guilty even with a BAC over the legal limit. These are just a couple of the possible circumstances, where you could be found not guilty. There are dozens of other potential issues.

6. What is a Refusal charge? What are the penalties for Refusal?
The Virginia Implied Consent Law requires all drivers on public highways to consent to testing if they are arrested for DWI. If an individual refuses to take the test after being arrested, they may be subject to an additional charge for Refusal (in addition to being charged with the underlying DWI). A first violation is a civil offense and subsequent violations are criminal offenses. For a first offense, it is a civil penalty with a penalty of a 12 month loss of license. A conviction that occurs within 10years of a prior DWI the penalty is a 3 year loss of license. A loss of license base on a conviction for Refusal is not eligible for a restricted license.

7. What happens if I get caught driving while my license is suspended for DWI?
If your license is suspended and you are caught driving, you may be charged with Driving on suspended under section 18.2-272. You may be charged under the same section if you are caught driving outside your restrictions or if you are caught driving during restrictions but with any level of alcohol in your blood. This can be a very serious charge. It is a class 1 misdemeanor, and like all class 1s, it is punishable by up to 12 months in jail and a $2500 fine. Additionally, the DMV will automatically suspend your license for an additional 12 months, with no restricted. Finally, if you had suspended jail time from underlying DWI conviction, you may be subject to having some or all of your suspended time imposed. All in all, it is a horrible idea to drive illegally during your suspension period.

8. What possible defenses exist?
Proving that somebody is intoxicated is a very difficult, complex undertaking for the Commonwealth. A number of defenses may exist depending on the facts of your case.

Common DWI defenses include:

  • – Challenge the stop – the law officer must have a valid reason to have initially stopped your vehicle. If he can’t show that his reason was valid, the case may be dismissed regardless of what happens after he stops you.
  • – Challenge the arrest – the law officer must have enough evidence to believe that you were probably intoxicated before he places you under arrest. If he can’t show that he can’t show that he had enough evidence to prove that you were probably intoxicated, when the case may be dismissed, regardless of what happens after you are arrested.
  • – Challenge the field sobriety tests – the officer will typically administer a number of field tests. In court he can testify as to your performance on these tests. The idea being that poor performance on these tests may indicate a level of impairment by the driver. However, these tests are often inconclusive at best. If the officer doesn’t follow and strictly comply with established standards, the test results are even less conclusive.
  • – Challenge the Procedure – the collection and testing of breath or blood to determine BAC is complicated and very well regulated. If the police failed to comply with any of the rules or regulations, the case may be dismissed or reduced.

These are just a small sampling of possible DWI defenses. Call us to discuss your case and see if any of these possible defenses are applicable to your case.

9. What will happen on my court date?
The specifics of what will happen will vary slightly depending on where you were arrested. For example, Alexandria courts handle DWI cases a little differently than Prince William courts. However, there are certain similarities. In every jurisdiction there will be a Prosecutor assigned to handle your case. The Prosecutor will look into the facts of the case and the Police Officer’s evidence and then discuss the case with your attorney. Depending on the jurisdiction this discussion may take place before court, at the start of court, or even at some point after court gets started. During this conversation, the Prosecutor will also negotiate a plea agreement.

A plea agreement provides that in exchange for a guilty plea, the Prosecutor will ask the judge for some agreed punishment. The terms of a plea agreement are completely up to the Prosecutor’s discretion. If the Prosecutor gives a reasonable plea agreement based on the case facts, then we accept the plea and the judge will typically rubber stamp the deal.

If the plea is unreasonable or if the factors indicate that the case should be dismissed, then we reject the plea agreement and go to trial. A trial will typically happen that day towards the end of court. At trial the Government’s witnesses will testify and be cross-examined by your attorney. You will have a right to testify if you desire, however electing to not testify cannot be used against you. You will also be able to present evidence and witnesses if they are applicable. At the conclusion of all evidence, the judge will make a decision on whether you are guilty or not.

At the Rosenthall Law Office we prepare for all DWI cases like they are going to go to trial. We believe it is better to know too much and not need it, rather than to know too little and need it.

10. How much is all this going to cost?
It depends on how your case is resolved but it’s probably going to be costly. Fines, court costs, ASAP fees all add up quickly. At the Rosenthall Law Office we recognize that fining all these fees, the last thing you want to do is pay exorbitant lawyer fees. That is why the Rosenthall Law Office allows offers reasonable, competitive fees and flat fee pricing. In certain cases, we may even include a price that will include an appeal. Call today to schedule your free consultation and get a guaranteed price to handle your DWI case.

11. What’s VASAP/ASAP?
ASAP, or sometimes VASAP, is the Virginia Alcohol Safety Action Program. By law all individuals convicted of a DWI in the state of Virginia are required to complete the program. Additionally, a condition of your restricted license will be the full compliance with the ASAP program. The program begins with an initial intake evaluation. During that evaluation you will be assigned a counselor. That counselor will discuss your prior record, your drinking behavior and a number of other factors that impact your risk status. After determining your risk status your counselor will create a program of treatment. You will be required to comply with all program assignments and maintain contact with your counselor. Violations of the terms of ASAP can result in the imposition of some or all of your suspended jail time.

12. I live out of state, can I do ASAP locally?
Typically, ASAP will work with out of state individuals to make completion of ASAP relatively painless. Ultimately, the decision is up to the ASAP counselor, but it is not unusual for ASAP to let you work with a similar agency in your home state.