Virginia uses the terms Driving Under the Influence (DUI) and Driving While Intoxicated (DWI) more or less interchangeably. Unlike in some states, Virginia DUI laws don’t charge DUI and DWI as different crimes.
Despite it just being one crime—officially referred to as DWI in Virginia—it’s quite complicated. Read on to learn how the state defines a DWI and what the punishments can be if you’re convicted.
What Is a DUI in Virginia?
A Virginia DWI includes two different definitions of intoxication. There’s intoxicated “per se” which means you meet the legal requirements based on blood, urine or breath tests for having an illegal amount of drugs or alcohol in your body while driving. Even if you don’t meet those thresholds, however, you can be “actually” intoxicated, which means the substance you’ve consumed impairs your ability to drive safely.
No matter how sober you seem or how well you can drive, you are intoxicated as a matter of law in Virginia if you have:
- A blood alcohol concentration (BAC) of 0.08 grams per 100mL of blood (referred to as .08%)
- A BAC of 0.02 grams per 100 mL (.02%) of blood and are under 21 years old
- A blood concentration of .1 milligrams per liter or more of methamphetamine
- A blood concentration of .02 milligrams per liter or more of cocaine, or
- A blood concentration of .02 milligrams per liter or more of phencyclidine (PCP)
Even if you don’t have a BAC or blood concentration that meets those numbers, however, you can still be charged and convicted if the prosecutor can prove your ability to drive safely was impaired. This can be based on observations by witnesses or police officers as well as on field sobriety tests or other indicators.
What is “Driving” in Virginia?
Virginia’s driving while intoxicated law does not actually require you to be driving in order to be convicted. If you are deemed to be in “actual physical control” of the vehicle, you can be found guilty of a DUI in Virginia even if the car never actually moved. Whether you were in a position to operate the vehicle will have to be proved by the prosecution, but they don’t need to prove that you were, in fact, driving—just that you were in a position of control of the vehicle.
DUI Penalties in Virginia
The penalties imposed by Virginia DUI laws aren’t limited to just fines and jail time. You can face a loss of your driving privileges in the state indefinitely as well as face numerous additional costs on top of any fines.
First Virginia DWI Penalties
Even the first offense in Virginia can lead to some significant penalties.
These penalties only go up after your first offense. It’s worth pointing out that as you accumulate points on your license in Virginia, other penalties can arise, too. Points are assessed for all kinds of traffic violations, and if you get more than 12 in a one-year period you must complete a driving improvement class within 90 days or have your license suspended. If you get more than 18 points in a year, your license will be suspended.
Penalties For Your Second Virginia DWI
If it’s been more than ten years since your first DWI, your second DWI will be treated as a first offense. If, however, it’s been less than 10 years (or, worse, less than five), the penalties are much more severe.
These are the minimum penalties:
- If it’s been less than 10 years, you must serve at least 10 days in jail. If it’s your second DWI in five years, you have to serve at least 20 days.
- If your BAC is between 0.15 and 0.20 you must serve at least 20 or 30 days in jail depending on whether it’s your second DWI in 10 years or five.
- If your BAC is above 0.20, the minimum time in jail is 30 days or 40 days depending on whether it’s your second DWI in 10 years or five.
- The minimum fine is $500.
- You will lose your license for 36 months.
- If it’s been less than 10 years, you can’t apply for a restricted license for at least four months. If it’s been less than five years, you can’t apply for a restricted license for at least one year
- You must have an ignition interlock device installed for the first six months you are next allowed to drive.
A restricted license in Virginia allows you to drive only to or from certain necessary places like work, school or with the use of an ignition interlock device.
Virginia DWI Penalties for Third Offenses
As you might expect, Virginia imposes even more severe penalties for your third DWI in a five or 10-year period. In addition to increased fines, longer terms in jail and longer loss of your license (minimum five years with a restricted license available after three years), once you have had a third DWI your vehicle becomes subject to seizure by the state.
In addition, a third DWI conviction is considered a felony in Virginia and can result in up to five years in prison.
Frequently Asked Questions
How likely is jail time for a first Virginia DUI?
For most first offenses, it’s very unlikely that the punishment will include any jail time. However, if the driver’s BAC is higher than 0.15, that high level of alcohol will change the answer. With a BAC in excess of 0.15, there is a mandatory minimum jail sentence.
Can you be charged with a DUI in Virginia with a BAC below 0.08?
Yes. If you have a BAC of 0.08 or above, you’re considered intoxicated automatically, no matter how you’re acting. However, if you have had enough to drink so that your ability to drive or operate a motor vehicle is impaired, you can still be charged and convicted of a DUI under Virginia law.
Is there a difference between DUI and DWI in Virginia?
Not really. In Virginia law, both terms are used, which may lead to some confusion. However, the actual name of the offense is “driving while intoxicated.” The two terms are used interchangeably in the state and refer to the same offense.
Is a Virginia DWI a misdemeanor or a felony?
That depends. Most first and second offenses are misdemeanors, but if you have a third DWI conviction in a 10-year period it is a felony. Other DWIs can be felonies if they contribute to an accident that causes injury to others.
