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“Is That Illegal?”

A Description of the Laws Related to DWI/DUI in Virginia

If you are reading this website, you probably have a lot of questions about what the law in Virginia says you can and cannot do. To know the law, you have to first know which level of government you are dealing with and who is enforcing the laws.

There are several levels of government: city/town, county, state and federal. Each has its own drinking and driving laws, and each may have its own police force.

The Virginia State Troopers enforce state law. The county police and sheriff’s department enforce state and county laws. The municipal police enforce municipal ordinances, though they can also charge people under state codes. Other law enforcement officers, such as university police, usually only enforce state laws.

In the Commonwealth of Virginia there are 95 counties and 39 independent cities (such as Alexandria, Fairfax City, and Hampton). Inside those counties are towns which may have their own semi-independent judicial system (such as Vienna, Spotsylvania, and Herndon).

Each county and independent city or town has the ability to create laws in addition to those created by the level of government above them. Consequently, if you are arrested for DUI, you can be charged with violating Virginia state law, the county code, or perhaps even a town or city ordinance.

The laws on federal land are a little different. Drivers arrested in national parks fall under the jurisdiction of the National Park Service, and they are tried in federal courts and punished under federal law (i.e. the Code of Federal Regulations). However, civilian drivers arrested on military bases in Virginia or on federal facilities such as the Pentagon are tried under the laws of the Commonwealth of Virginia, even though the trials take place in federal courts.

State, county, and city laws are usually the same but sometimes there can be major differences. It is always important to present your summons or arrest warrant to your attorney so he/she can know exactly which law you are being charged with violating and in which jurisdiction you are required to appear.


In Virginia, the judicial process uses the words DUI and DWI interchangeably. Technically, Driving Under the Influence (DUI) applies to intoxication via any form of drugs or alcohol while Driving While Intoxicated (DWI) generally refers to just alcohol. Whether your warrant says DWI or DUI, it really does not matter. The statute is the same and the consequences are the same so most people in Virginia use the terms interchangeably. Other states may draw substantial differences between the two, but Virginia does not.

DUI (Driving Under the Influence)

DUI is one of the most complicated criminal laws in Virginia, and having a competent attorney to represent you is absolutely essential. There are approximately 22 pages of DUI codes, endless case law on the subject, and 17 different categories of punishments that a driver can receive depending on how many convictions he has, his blood alcohol content (BAC), and the discretion of the judge.

However, there are only five ways to be convicted of a simple DUI and Va. Code § 18.2-266 lists them all:

1) Operating a motor vehicle while having a blood alcohol content (BAC) of .08 or above;

2) Operating a motor vehicle while under the influence of alcohol (substantially impaired);

3) Operating a motor vehicle while under the influence of any drug that impairs one’s ability to drive safely;

4) Operating a motor vehicle while under the influence of any combination of drugs and alcohol which impairs one’s ability to drive safely; and

5) Operating a motor vehicle while having more than very small and specific amounts of cocaine, methamphetamines, PCP, or ecstasy in one’s blood.

The most common way to be convicted of DUI is to have a blood alcohol content (BAC) of .08 or higher. The law does not require a driver to be drunk to commit a DUI. An experienced drinker may be convicted of DUI no matter how safely he operates his vehicle if his blood alcohol level is over .08.

The same is true for cocaine, meth, PCP, and ecstasy. Even if the driver was not “intoxicated” at the time he was driving, he can be convicted of DUI if his blood contains more than a specified amount of one of those drugs.

Drivers can also be convicted of DUI when they have a BAC of less than .08 but are “substantially impaired”. Drivers may be found guilty of DUI if the police officer can prove that the driver’s ability to drive was impaired by alcohol. Consequently, a driver who is texting or talking on a cell phone after having only one or two drinks may be arrested for DUI and their distracted driving may be attributed to intoxication.

DUI is not just for alcohol. Any drug that affects your ability to drive safely can potentially lead to a DUI conviction. Over-the-counter allergy medicines, cough syrup, necessary prescription medications, and seemingly innocent drugs can affect your ability to drive and result in a DUI conviction. In Virginia, any medication or drug that affects your ability to drive can theoretically result in a DUI.

“Operating” Defined

Frequently, cases come up where the police arrest a person for DUI when that person is sitting behind the wheel of a parked car. The question is whether sitting in a parked car is “operating” the vehicle.

In Virginia, a person is operating a vehicle if they are behind the wheel and the keys are in the ignition and any of the electrical or mechanical systems are engaged. This may be true even if the vehicle is immobilized (e.g. stuck in a ditch or stopped with a flat tire). However, if you are charged with DUI and the officer did not see you behind the wheel or did not see the engine on, contact an attorney immediately to discuss whether the commonwealth can prove you were “operating” the vehicle.

Public Roads vs. Private Roads

Some of the DUI and refusal laws only apply on “public highways” in Virginia. However, do not be fooled. A “public highway” really means any road surface open to the public. It also includes government-run private road surfaces like toll roads and parking lots of private government buildings. If a person is caught driving on private property, like a parking lot or driveway, then the issue is whether it is open to the public. This is a very technical legal issue and should be brought to your attorney’s attention immediately.

Involuntary Intoxication

What happens if you did not mean to get drunk or intoxicated? Involuntary intoxication is a potential defense to DUI in Virginia. If a person did not intentionally ingest drugs or alcohol or was not aware of the nature of what he was ingesting, he may not have committed a DUI. The most common example is when someone takes a new prescription medication that has an unusual and unforeseen side effect while driving.

DUI for Drivers Under 21 (Baby-DUI)

Do not let the name fool you. Baby-DUIs are serious stuff. Va. Code § 18.2-266.1 makes it illegal for anyone under 21 to drive with a BAC of .02 or higher. However, if a person under 21 has a BAC of .08 or more, then he can be charged under the normal DUI statute. Many underage drinkers do not realize that they can be arrested for DUI after consuming very little alcohol.

DUI After Driver’s License Is Revoked, Suspended, or Restricted

According to Va. Code § 18.2-272 (B), it is a crime for certain persons who have had their license revoked, suspended or restricted, to drive with a BAC of .02 or above. This law is problematic for drivers with restricted driver’s licenses, who think they can have two beers and still drive because they are not drunk. The consequences of a conviction of 18.2-272 are very similar to DUI, but a conviction means revocation of a restricted driver’s license for one year and can also result in the driver’s car being impounded for up to 120 days.

Refusal to Submit to Breath or Blood Testing

Va. Code § 18.2-268.3 states that every person who is arrested for DUI within 3 hours of driving on any public road in Virginia has to submit to a breathalyzer test, a blood test, or both.

Before charging a driver for refusal to submit the police officer who arrested the driver must first read a form explaining the refusal law to the driver and then offer the driver one more chance to comply with the test.

Transporting a Minor While Under the Influence

Va. Code § 18.2-270(D) increases the penalties for DUI if it was committed while there was a minor (anyone under 18) in the car. These penalties include mandatory jail time and increased fines.

If you are arrested for DUI and there was a minor in the car make sure to inform your attorney as soon as possible.

DUI-Related Child Abuse/Neglect

Being arrested for DUI while having a minor in the car can, in more egregious cases, be considered felony child abuse under Va. Code § 18.2-371.1(B). The Virginia Court of Appeals has upheld cases where mothers arrested for DUI were also convicted of felony child abuse because the court believed that driving drunk with a minor in the car demonstrated “reckless disregard” for the life of the child.

DUI and Maiming

In addition to the various codes dealing with vehicular homicide, Va. Code § 18.2-51.4 creates a special felony for anyone who severely injures another person while driving under the influence. Conviction can result in up to five years in prison, indefinite loss of license, lawsuits, and many other extremely serious consequences.

Driving with an Open Container

Under Va. Code § 18.2-323.1, it is a crime to drive on any public road while drinking alcohol or having alcohol within the reach of the driver unless it is sealed in a factory-sealed container. Driving while drinking or with an open container can also be used as evidence in a DUI case.

DUI While Driving a Commercial Vehicle

Drivers of commercial vehicles can be charged under either of two DUI laws that are unique to commercial vehicles. Va. Code § 46.2-341.24(A) is exactly the same type of crime as a regular DUI with the same five ways to be found guilty. However, Va. Code § 46.2-341.24(B) states that a driver of a commercial vehicle can be arrested for DUI with a BAC of .04 or more.

Drivers who have a commercial driver’s license (CDL) should not hesitate to get an attorney if they are arrested for DUI or similar offenses. The consequences of DUI are much more serious for drivers who have CDLs. CDL holders cannot get restricted driver’s licenses after a DUI conviction even if their DUI was not committed in a commercial vehicle.

Wet Reckless

Va. Code § 46.2-852 defines “reckless driving” as driving in a manner so as to endanger the life, limb or property of any person. “Wet reckless” simply means a driver is charged with reckless driving instead of DUI. Reckless driving is still a serious criminal charge, but police officers sometimes use this charge when they lack sufficient evidence of DUI. Typically this happens at the scene of an accident where the driver has a BAC that is over .04 but lower than .08.

Drunken in Public (DIP)

Va. Code § 18.2-388 makes it a crime to be intoxicated while in public. This charge may be used in cases where the officer finds the driver outside their car at the scene of an accident and cannot prove that they were driving the vehicle.

Assault/Battery of an Officer

Assault under Va. Code §18.2-57 is a grossly misunderstood charge that is often used as leverage against a driver who has been aggressive with officers during a DUI arrest. “Assault and battery” means any harmful or offensive touching, or putting someone in immediate fear of harmful or offensive touching. A touch does not have to hurt or injure to be battery, and it does not even have to make contact to be assault.

Poking an officer in the chest, waving your fingers in his face, taking a swing, kicking, or even thrashing around could potentially qualify as assault on a police officer even if no one was hurt.

Assault on a police officer in Virginia is a Class 6 felony and carries up to five years in prison and a $2,500 fine.

If you were charged with assault on an officer or even if the officer threatened to charge you with assault, tell your attorney immediately. It may be used against you in your DUI trial.

Obstruction of Justice

A person investigated for DUI can be charged with obstruction under Va. Code §18.2-460 if he 1) obstructs law enforcement officers in the performance of their duties, 2) threatens or attempts to intimidate officers, or 3) knowingly makes false statements to the police while they are investigating another driver or person.

Obstruction of justice is a Class 1 misdemeanor and is punishable by a maximum of 12 months in jail and a $2,500 fine. If you are accused of (or even threatened with) obstruction, notify your attorney immediately.

Resisting Arrest (Misdemeanor Fleeing)

Under Va. Code §18.2-479.1, “resisting arrest” means fleeing from the police after the police try to arrest you. Fleeing can mean running or walking only a few steps. Resisting arrest is a Class 1 misdemeanor and is punishable by a maximum of 12 months in jail and a $2,500 fine. If you are arrested for DUI, just relax and call your attorney, resisting arrest may be used against you in your DUI trial.

Eluding (Car Chase)

A driver who refuses to pull over after police ordered them to, may be charged with eluding police under Va. Code §46.2-817. Simple eluding is a Class 2 misdemeanor (up to six months in jail). However, if a driver disregards the safety of others, then eluding becomes a Class 6 felony (up to five years in prison).

If the officer who pulled you over claims you were refusing to pull over, notify your attorney immediately even if you were not charged with eluding. Accusations of eluding may be used against you in your DUI trial.

Bribery of a Police Officer

When people are arrested for DUI they sometimes say things they later regret. If a driver offers anything to a police officer in exchange for “letting them go” this may be interpreted as attempting to bribe a police officer which is a Class 4 felony in Virginia. Even if you were just “kidding”, tell your attorney immediately if you made any such statements to a police officer or if the officer accused you of making such offers. Even if you were not charged with bribery, such behavior may be used against you in your DUI trial.

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