Protecting Your Rights
“How Bad Is It?”
The Costs and Consequences of Conviction
About the time the police put the handcuffs on, the driver realizes that he or she is in trouble. The first thing they want to know is “How bad is it?” DUIs are very serious in the Commonwealth of Virginia. They come with complex and severe punishments.
Because DUIs elicit so much public attention and because of the problems with repeat offenders, almost every year (sometimes several times a year) the legislature changes the DUI laws, increasing the complexity and seriousness of their consequences. If a driver hires an attorney whose practice does not focus on DUI defense, the driver runs a greater risk that his attorney will arrive at court unaware of recent changes in the law. Because DUI laws change so frequently, drivers should not attempt to use this book as a substitute for a consulting an experienced DUI attorney.
DUI laws are complicated; there are 17 different types of punishments, fines, or fees that result from a DUI conviction. The punishments depend on how many convictions the offender has had, his blood alcohol content (BAC), and the discretion of the judge. Some punishments are mandatory and others are discretionary. Some consequences are decided by the judge; others are decided by the Alcohol Safety Action Program (“ASAP”) case managers, the DMV, or other third parties.
Because these consequences are so severe, complex, and far-reaching, it is essential that you have an attorney that will take the time to get to know you and your situation so that they can counsel you on how your legal decisions will affect your life. A good DUI attorney must know their client as well as the law.
As mentioned above, the many different punishments for DUI depend on the number of convictions a driver has had, the time that has elapsed since those convictions, his BAC at the time of arrest, whether there were aggravating factors (such as having a minor in the car) and the judge.
The number of convictions a driver has is the most important factor in determining how much trouble a driver is in. A driver’s second conviction in ten years carries mandatory jail time, and his third DUI in ten years is a felony.
Prior convictions from any jurisdiction in Virginia and even from some states and federal jurisdictions can be used against you if the prosecution can comply with a series of strict evidentiary rules. A quality attorney will know these requirements and may be able to thwart the prosecution’s efforts to use prior convictions against you if they do not comply with the evidentiary rules. If you have been arrested for DUI more than once, you need to hire the best attorney you can afford and explain your legal history thoroughly.
The effects of prior convictions for DUI are influenced by how much time has passed since your last DUI. A second or third DUI in five years is more serious than a second or third DUI in ten years. Once again, if you have ever been previously arrested for DUI, you need to hire a quality DUI attorney immediately.
When people come into my office, they are usually most concerned with how much jail time they will get. Before answering that question, you need to know that there are two types of jail time: discretionary jail time and mandatory jail time.
Discretionary jail time is the amount that the judge can choose to give a defendant. Discretionary jail time for misdemeanors is also served twice as fast. For every two days of discretionary jail time you receive, the sheriff’s department makes you serve only one. If a driver is given a discretionary sentence of 30 days, then he will usually spend only 15 days in jail (conditional on good behavior).
On the other hand, if the law requires mandatory jail time, those days cannot be waived by the prosecution, judge, or sheriff. Therefore, a driver who is found guilty of a crime that carries mandatory time in jail must serve 100% of that time.
Most sheriffs and judges will not allow defendants to participate in jail programs such as “work release” or “weekday release” while they are serving mandatory jail time.
The one exception to this rule is alcohol/drug inpatient rehabilitation. On rare occasions, a judge may order a driver to serve their mandatory and/or discretionary jail time in a rehabilitation facility instead of jail.
A driver convicted of a first DUI faces up to 12 months of discretionary jail time. However, if the driver’s BAC was .15 or more, five of those days will be mandatory jail time (ten days if his BAC was more than .20).
A second DUI conviction carries 12 months of possible jail time. Of those 12 months, 5 to 40 days will be mandatory jail time, depending on the BAC and whether the last conviction was within the last five or ten years.
A third DUI conviction is a felony and comes with up to five years in prison (90 or 180 days are mandatory), while a fourth DUI has one year of mandatory jail time and four years of discretionary incarceration.
Not all jail sentences are equal. Your attorney may ask the judge to allow you to turn yourself in at a later date. Discretionary jail time can be served on weekends, and drivers who are incarcerated for substantial periods of time can apply for work release programs, inmate trustee programs, or house arrest, to name just a few programs. The availability and details of these programs vary widely between counties and cities, and may even vary based on which day of the week the driver is convicted (for example, Alexandria’s weekend jail program is hardest to get into on Fridays and is easier to get into on Mondays).
Having an attorney who knows the local programs and can guide you through the process is essential.
Next to going to jail, the worst thing that can happen to most people is losing their driver’s license. Unfortunately, Virginia is extraordinarily strict in taking away peoples’ right to drive. There are three types of license suspensions that can affect a person charged with DUI in Virginia:
1) Administrative Suspension
The police confiscate your license on the day you are arrested.
2) Judicial Suspension
The judge suspends your license, and the bailiff confiscates your license upon conviction.
3) DMV Suspension
The DMV sends you a letter stating that you no longer have the right to drive because of excessive demerit points.
Administrative suspension (found in Va. Code § 46.2-391.2) occurs when the arresting officer notifies the driver that his license has been suspended. This notification usually happens at the police station after the officer administers a breath test. If you have a Virginia driver’s license, the arresting officer will confiscate it.
The police can suspend an out-of-state license holder’s right to drive in Virginia, but they are not allowed to confiscate an out-of-state license and cannot revoke an out-of-state driver’s right to drive in other states. If the police confiscate your out-of-state driver’s license, notify your attorney immediately for help getting your license back from the police.
Administrative suspensions apply to drivers who are charged with refusal to submit to a breath or blood test or those charged with DUI based on a BAC of .08 or more (.02 or more if they are under 21). There should be no administrative suspension for a DUI arrest based only on erratic driving or drug use. If the police try to suspend your license for anything but DUI by BAC or refusal to submit, then contact your attorney immediately to have the suspension removed.
Administrative suspensions last only seven days for first time offenders, but drivers with prior convictions will be suspended for 60 days or until the day of trial, depending on whether they were arrested for their second or third DUI. Drivers can appeal an administrative suspension and/or receive a restricted driver’s license during the suspension period.
An effective DUI attorney may be able to get you your license back or get you a restricted license during the administrative suspension. Consequently, the sooner you hire your attorney the more services you can receive for your money. Retain an attorney immediately after your arrest to maximize the benefits you can receive from your DWI attorney.
The second way that Virginia may revoke your right to drive is through the judicial process. If a person is found guilty of his first DUI, the judge must suspend his license for 12 months. A second offense requires a mandatory suspension of three years. A third or fourth offense will result in an indefinite suspension of the right to drive.
Conviction for refusal to submit to a breath/blood test results in a 12-month suspension of your driver’s license (without a restricted license) which is in addition to the license suspensions you may have pending for DUI or other charges. A second conviction for refusal will result in a three-year suspension without a restricted license.
In DUI cases, the court may grant a restricted driver’s license. Restricted driver’s licenses are by definition restrictive. A restricted driver’s license limits your driving to specific times and places. These restrictions must be strictly obeyed otherwise the driver may be charged with driving on a suspended license.
A first-time offender may be granted a restricted license immediately upon conviction. Following a second conviction within ten years, a restricted license cannot be granted for at least four months. If the second conviction is within five years, the driver must wait one year to apply for a restricted license. A third-time offender must wait three years to get a restricted license.
Even if the court grants a driver a restricted license, the DMV may yet take that privilege away for accumulating excessive demerit points.
Any Virginia driver who commits a moving violation (including DUI) will have up to six points deducted from his driving record. These points are called demerit points. Accumulating too many demerit points within a given period of time can result in the suspension of the driver’s license.
Almost all of the DUI and DUI-related offenses (including refusal) are six-point offenses that remain on your driving record for eleven years. The DMV has complete control over the demerit-point system, and there is nothing any judge can do to alter the points assessed against you once you are convicted.
For drivers who are minors, any demerit-point conviction means they must attend a driver-improvement class. Failure to do so within 90 days results in a license suspension until the program is completed. A second point-conviction results in a 90-day license suspension. A third will result in a suspension of one year or until the offender reaches age 18, whichever is longer.
For adults, the accumulation of eight demerit points in 12 months or 12 points in 24 months results in an advisory letter from the DMV. The accumulation of 12 demerit points within 12 months or 18 points in 24 months results in a mandatory driver-improvement class followed by six months of probation and 18 months of control period. The driver-improvement program must be completed within 90 days, or the license will be suspended until the course is completed.
The accumulation of 18 points in 12 months or 24 points in 24 months results in a mandatory 90-day license suspension. After the suspension the driver must complete a driver-improvement class before their license can be restored. After restoration, they will be on probation for six months and then a control period for 18 months.
If the driver is convicted of a traffic offense while on DMV probation, his license will be suspended. The driver’s license will be suspended for 45 days for a three-point violation, 60 days for a four-point violation, and 90 days for a six-point violation. Once that individual finishes the suspension period, he will be placed on probation for an additional six months and then an 18-month control period.
A violation while on the control period will result in the driver being placed on probation for six more months followed by another 18-month control period. Drivers should always get copies of their driving records before trial so that they can determine whether they are in danger of a DMV suspension.
|Consequences of Demerit Points in Virginia (Adult Drivers)|
|within 12 months||within 24 months|
|8 points||Letter from DMV||Nothing|
|12 points||Mandatory driver-improvement class + probation for six months||Letter from DMV|
|18 points||Mandatory 90-day license suspension + driver-improvement class + probation for six months||Mandatory driver-improvement class + probation for six months|
|24 points||Mandatory 90-day license suspension + driver-improvement class + probation for six months||Mandatory 90-day license suspension + driver-improvement class + probation for six months|
Effects of a DUI on Insurance
After a conviction for DUI, a driver’s insurance premium can increase dramatically depending on the insurance carrier and previous driving history. For a second DUI conviction, the premiums can go up even higher. These rates will remain high for three years or more for a first offense. A single DUI can cost a driver $1,800 or more in increased auto insurance premiums.
Some insurance carriers will refuse to insure a driver convicted of DUI. In some cases, the driver may be required to file an SR-22 (high-risk driver) insurance form with the DMV before the DMV will reinstate the driver’s license.
Excluding insurance hikes, a driver’s first DUI can cost $1,000 to $4,200 in fines, government fees, and costs. A second DUI costs $1,200 to $5,500. A third or fourth costs between $2,100 to $5,800.
There are approximately 13 different fines, fees, and costs that may be assessed against a defendant if he is found guilty, pleads guilty, or pleads no contest. Here is a list of some of those expenses with approximate dollar amounts:
- fines ($250 to $2,500)
- license reinstatement fee ($175)
- ignition interlock system ($70 plus $60/month)
- ASAP ($495+)
- Trauma Center Fund ($50)
- court costs ($100)
- jury fees ($210/day)
- court-appointed attorney fee ($120 for misdemeanor, $445 for felony)
- restricted license fee ($220)
- mandatory driver-improvement class ($35 to $75)
- car impounding fee ($120 plus $50/day)
(Note: these amounts are constantly changing and should be used only as estimates).
Alcohol Safety Action Program (ASAP)
A mandatory condition of probation for anyone convicted of DUI is that the driver must complete the Virginia Alcohol Safety Action Program (VASAP or ASAP). The defendant must register for the ASAP classes within 15 days after sentencing or release from jail. Registering for ASAP is a requirement for probation and often for getting a restricted license.
At the driver’s first ASAP appointment, there will be an intake interview and a case manager will decide which classes the driver should take. Most-first time DUI defendants who do not have substance abuse issues will be assigned to a 20-hour, ten-week program that meets once a week at the same time every week for two hours per session. This program is the cheapest at about $495 (the cost changes frequently and should be used only as an estimate).
However, if a driver is convicted of a second DUI, of having an unusually high BAC, or if the ASAP program believes they have substance abuse issues, the ASAP case manager may require the driver to attend more rigorous and expensive classes. A driver may be required to attend ASAP meetings multiple times a week or even every day. ASAP can require in-patient rehab. ASAP can demand that a person attend meetings for longer than just ten weeks. These more extensive programs can cost thousands of dollars. The ASAP case manager has massive amounts of control over the form your ASAP treatment may take.
If a driver does not live in Virginia, the ASAP program may require the driver to attend a similar private or government program in their home state. It may also be possible for private treatment to take the place of the ASAP program. Contact an experienced DUI attorney if you are considering attending private alcohol or drug treatment.
Failure to sign up for or complete ASAP can be a violation of probation. If a driver does not show up to an ASAP class, he risks being sent to jail. Make sure to hire an attorney who can explain and aid you in the ASAP registration process.
Probation and Suspended Sentences
Typically, a judge will hand down a sentence with the majority of jail time suspended (e.g. “60 days in jail, 50 days suspended”). Suspended jail time is jail time you do not have to serve, conditional on your “good behavior”, successful completion of ASAP, and “keeping the peace” for a period of time (usually one year). This sentence is a form of “inactive probation.” Inactive probation means that you are on probation but do not have to report to a probation officer.
The judge will also declare the length of the probation, usually one year. If the driver violates the conditions of his probation (does not attend ASAP or is convicted) during that year, then the driver will appear before the judge to determine how much of the suspended sentence the drive will have to serve. Many judges will sentence violating drivers to the entire suspended sentence.
If you have a suspended sentence or any form of probation from previous convictions (whether or not they are DUI-related) and you are arrested, immediately hire an attorney and tell your attorney about the probation.
Other Possible Consequence of a DUI or Refusal Conviction
There are many possible consequences of a DUI or refusal conviction that are unique to an individual client. These consequences may be loss of job, loss of custody of children (especially if the client is in the middle of a custody dispute), denial of college or graduate school admission, denial of security clearance, denial of application to the armed services, loss of a CDL, immigration issues, and potential civil liability.
To effectively represent you, a DUI attorney needs to know more than just the facts of your case. Your attorney needs to know you personally so that she can counsel you on all of the possible consequences. Make sure you hire an attorney who takes the time to get to know you and communicate to your attorney how a DUI conviction will affect your life.
Refusal to Submit to a Breath Test
Refusal to submit to a breath test can be either a civil or criminal offense. Refusal to submit with no prior convictions of refusal or DUI is a civil offense and will result in the suspension of driving privileges for one year with no opportunity for a restricted license.
A refusal to submit conviction within ten years of being convicted of DUI or refusal, will result in a three-year driver’s license suspension (with no restricted license), up to six months in jail, and up to $1,000 in fines. This form of refusal is a criminal offense.
If a person refuses to submit after two convictions of DUI or refusal (or a combination of the two) within the last ten years, he will lose his driving privileges for three years (with no restricted license), face up to 12 months in jail, and face a maximum fine of $2,500.
Driving suspensions for DUI and refusal to submit will run back-to-back. This means a person who is convicted of his first DUI and first refusal to submit at the same time loses his driving privileges for two years. A person with a prior DUI who is convicted of a second DUI and first refusal to submit will have his license suspended for six years (three for the second DUI and three for refusal to submit).