2nd DUI in VA

The information contained here is provided by experienced Virginia DUI lawyer Andrew Flusche and was last updated in January of 2021.

What are the Penalties for a Second DUI in Virginia?

The penalties for a 2nd DUI in Virginia will be stiffer than what you faced for your first DUI conviction. The ultimate severity of your penalties will depend largely on how much time has passed since your initial DUI charge, and on your blood alcohol level.

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If Less than 5 Years Have Passed Since Your First DUI Offense

A second DUI is a misdemeanor offense. According to Va. Code § 18.2-270, you are looking at the following penalties for a second DUI conviction:

  • A fine between $500 and $2,500
  • Between 20 days and one year in jail
  • License revocation for 3 years
  • Payment of court costs
  • Enrollment in the Virginia Alcohol Safety Action Program (VASAP), which includes random alcohol and drug screening, as well as mandatory classes

Your blood alcohol concentration at the time of arrest can also increase the amount of jail time you are facing:

  • If your BAC was at least 0.15 but not more than 0.20, you have an additional 10 days mandatory in jail
  • If your BAC was higher than 0.20, you have an additional 20 days mandatory minimum in jail

After your first DUI conviction, you might have applied for a restricted license that let you get to work or school. However, you cannot apply for a restricted license after a second DUI conviction for at least a year.

In order to get a restricted license (or ever get your license back), you will have to install an ignition interlock device for 6 months in any vehicle owned or registered to you.


If Between 5 and 10 Years Have Passed Since Your Initial DUI Offense

This is also a misdemeanor offense. You will face the following penalties:

  • A fine between $500 and $2,500
  • Between 10 days to 1 year in jail
  • License revocation for 3 years
  • Payment of court costs
  • Enrollment in VASAP course, along with random drug and alcohol screening

Again, a higher BAC will increase the minimum amount of time you spend in jail:

  • BAC of at least 0.15 but not more than 0.20: an additional 10 days in jail
  • BAC higher than 0.20: an additional 20 days in jail

You cannot apply for a restricted license for at least 4 months. In order to get a restricted license (or ever get your license back), you will have to install an ignition interlock device for 6 months in any vehicle owned or registered to you.


Defenses for a 2nd DUI in Virginia

The best legal defenses for your case will depend on what the police did, how they treated you, and how they accumulated evidence against you. Remember, the Commonwealth has the burden of proof in criminal cases. You do not have any responsibility to offer evidence in defense. However, you want your lawyer to be prepared to poke holes in the state’s case against you.

What Does the Commonwealth of Virginia Have to Prove to Convict Me of a 2nd DUI Offense in Virginia?

An effective defense begins with understanding what the Commonwealth has to prove. In a 2nd DUI offense in Virginia, the Commonwealth has to prove:

    1. You were driving or operating a motor vehicle;
    2. While under the influence of drugs, alcohol, or both, or with a blood alcohol concentration (BAC) of 0.08 or above.

The per se rule plays a huge role in Virginia DUI second offense cases. The judge must instruct the jury that they can infer the defendant was intoxicated if their BAC was 0.08 or above. The jury is always free to reject that evidence.

There is a rebuttable presumption that the person was NOT under the influence if the chemical test results were 0.05 or below. But the Commonwealth can offer evidence to show that the person was under the influence despite the low BAC reading.

The gray area arises when the BAC reading comes between 0.05% and 0.08% BAC. The law does not allow for a presumption of intoxication or sobriety. However, the jury can use the BAC result during its deliberations. The Commonwealth must present other evidence besides the BAC result to convict for a 2nd DUI in Virginia.

Some of these terms have specific legal definitions. For example, operating a motor vehicle means either driving, starting the engine, manipulating the controls, or sitting behind the wheel with the keys in the ignition. Additionally, the Court allows the state to admit evidence that the person refused a breath test. The judge warns the jury that they cannot hold it against the accused for refusing the breath test. The judge allows this evidence to come in to explain why the jury does not have the evidence before them.

The judge must advise the jury that they must find the accused not guilty if the Commonwealth fails to prove any element, or essential fact, of the DUI charge.

The prosecution must also admit evidence that you have a prior conviction on your record for DUI.

Aggressive Defense Strategies for 2nd DUI in Virginia

Understanding the legal framework helps focus on the most effective defense strategy for your Virginia DUI second offense charges.

If you face charges of 2nd DUI in Virginia, you should consider pre-trial and trial defenses when planning your defense. Pre-trial defenses include arguing motions to dismiss and suppress. In a motion to dismiss, you say that the Commonwealth cannot win its case because they do not have enough evidence to proceed to trial.

Motions to suppress are different. A motion to suppress challenges the constitutionality of the police officer’s actions. For example, if the police pulled you over for no reason, then the court must throw out any evidence the police collected after the illegal car stop. If that happens, the jury could never hear evidence of field sobriety tests or chemical tests.

Trial defenses attack the evidence itself. An excellent trial lawyer will attack how the police administered the field sobriety tests, the accuracy of their observations, and if the police followed the right procedure during their investigation.

All of these attacks can amount to reasonable doubt and result in an acquittal for you.

If these strategies are not reasonable in your situation, your lawyer can always negotiate a plea bargain for you. A plea bargain to a less serious offense can help you out tremendously.


Frequently Asked Questions About 2nd DUI in Virginia

What Is the Maximum Sentence for a 2nd DUI Offense in Virginia?

The maximum penalty for a conviction of a 2nd DUI in Virginia depends on the timing of your first conviction and the seriousness of the 2nd offense. If your first conviction happened within the last five years, you could spend between 20 days and one year in jail. You will lose your driver license for up to three years as well.

If the first offense happened between five and ten years ago, you could serve between 10 days and one year in jail.

Also, a BAC between 0.15 and 0.20 carries an additional 10 days in jail. A BAC over 0.20 carries a further 20 days in jail.

Is a 2nd DUI a Felony in Virginia?

Virginia law considers a Virginia DUI second offense to be a misdemeanor. However, you could have felony changes if you caused an accident and someone sustained serious injuries or died.

Can I Get a Hardship License?

Getting your license back is not automatic. You have to install an interlocking ignition device for at least six months. Also, you have to wait at least one year before applying for a restricted license if your first conviction was within the last five years. You could apply for a restricted license within four months if your previous conviction was between five and 10 years ago.


A 2nd Virginia DUI Charge Demands Effective Legal Representation

Some people didn’t have a lawyer for their first DUI, but given that so much more is at stake, you would benefit from a lawyer for a 2nd DUI in Virginia.

For example, not being able to get even a restricted license for one year can make it hard, if not impossible, to keep a job or continue to attend school. Public transportation is not reliable in many parts of Virginia, so it is possible you could lose your job.

Reach out to an experienced Virginia DUI attorney today. Andrew Flusche is an attorney at law who has handled many DUI cases.

I will give your case my undivided attention and work aggressively to obtain the best result possible. Contact me today by calling 540-318-5824. I offer a free, confidential initial consultation where you can discuss the case and my fees. Avoid delay. A second offense Virginia DUI will not.

 

Charged with a 2nd DUI in VA? Contact my office now to begin your defense:

 

Note on service areas: I defend clients in these counties and cities: Fredericksburg, Spotsylvania, Stafford, King George, and Caroline. If the court where your case is being prosecuted is not in one of these areas I can still help you. Contact my office and I’ll be happy to refer you to an experienced DUI lawyer who is local to the area where you need help.

Andrew Flusche

My name is Andrew Flusche. I am a traffic and misdemeanor defense lawyer in Virginia. I limit my practice to traffic tickets and misdemeanor defense, so I know the ins and outs of these offenses. I literally wrote the book on reckless driving in Virginia which you can get on Amazon here or download for free here. I opened my practice in 2008 after earning my Juris Doctor degree from the University of Virginia School of Law. Since then I have earned over 600 5-star reviews from happy clients on Google, Yelp, Facebook, and Avvo. If you’ve been charged with a misdemeanor offense in Virginia, please don’t hesitate to contact me. Your initial consultation is always free, and you'll talk directly with me about the details of your case.

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