Can I Get Pulled Over Driving High in Virginia?

driving while highIn Virginia, driving while high can get you into just as much trouble as driving drunk can.

It can be more difficult, however, for Virginia to convict you for driving while high on certain drugs such as marijuana.

Keep in mind that Virginia can convict you even if the substance that you are high on is perfectly legal. You cannot drive while high on prescription pain meds, for example, even with a valid prescription.

DUID in Virginia

In Virginia, DUID (Driving Under the Influence of Drugs) is the counterpart to DUI. Virginia will charge you with DUI for driving while drunk, and it will charge you with DUID for driving while high. The penalties are comparable (see below for specifics).

The standard for Intoxication: Marijuana and Other Drugs

A driver violates Virginia’s DUID law if they are intoxicated on any drug that causes impairment, whether legal or illegal. There is a formal legal limit, similar to the 0.08% BAC for alcohol, for certain drugs, including:

  • 0.02 milligrams of cocaine per liter of blood;
  • 0.1 milligrams of methamphetamine per liter;
  • 0.01 milligrams of phencyclidine (PCP) per liter; and
  • 0.1 milligrams of MDMA per liter.

Virginia is not likely to charge you with possession of any of these substances based merely on their presence in your bloodstream.

Special Case: Marijuana

Unlike some states, Virginia has not set a formal legal limit that defines marijuana intoxication based on the level of THC, the active ingredient in marijuana.

Instead, the determination of marijuana intoxication is subjective, and no particular amount other than zero guarantees either guilt or innocence.

How Do You Prove DUID Intoxication?

In a DUID prosecution, the prosecutor will rely on chemical evidence if it is available. This applies to marijuana even though Virginia applies no formal legal standard of intoxication. The prosecutor will also rely on evidence that you were driving badly, including:

  • Observations of the officer;
  • Your own admissions (if any); and
  • Your performance on field sobriety tests that the officer administered after pulling you over.

The lack of any objective chemical standard for marijuana intoxication and intoxication on certain other types of substances renders observational and testimonial evidence even more important.

Potential Defenses

The following is only a tiny sampling of potential DUID defenses. The first two listed defenses are often winners, while the third defense is typically a bad idea.

The Fourth Amendment

Virginia police do not have a “radar gun” that can measure your degree of intoxication while you are still driving. To charge you, the police must first pull you over. To pull you over, however, the police need “reasonable suspicion” that you violated the law in some way.

Therefore, if the police pull you over without reasonable suspicion that you committed a crime, the stop may be illegal and you might have a defense.

You could argue that any evidence that they gathered after the illegal stop, including a chemical test of the contents of your bloodstream, violated the Fourth Amendment to the US Constitution (banning illegal search and seizure).

If this argument wins, the judge should exclude the evidence. And without critical evidence, you would walk free.

Unreliable Chemical Testing

The lack of any objective standard for marijuana intoxication could get you unjustly convicted of DUID. The police might find marijuana in your bloodstream, for example, based on marijuana that you ingested the day before.

They could then use it as evidence that you were intoxicated at the time they pulled you over, even if the effects had long worn off.

Things could work the opposite way, however. Even if you were intoxicated at the time, a good lawyer might successfully argue that the subjective standard of marijuana intoxication based on chemical testing is inherently unreliable.

Therefore, without a reliable blood test, the police lacked sufficient evidence of intoxication and you should be acquitted.

Lack of Evidence Due to Your Refusal to Submit to a Chemical Test

One strategy that drivers sometimes use is to refuse to submit to a chemical test and then move for a dismissal of DUID charges. However, this strategy will probably backfire because:

  • Virginia can suspend your driver’s license for one year for refusing a chemical test, even if you are innocent of DUID. A second offense of refusal results in three years suspension plus possible jail time.
  • The prosecutor can use your refusal as evidence to win a DUID conviction even without a chemical test.

For these reasons, refusing a test can result in bad consequences as far as your ability to drive is concerned.

DUID Penalties

Virginia driving while high laws are no laughing matter. The penalty for driving while high, as for any other Class 1 misdemeanor, is 12 months in jail, up to a $2,500 fine, and certain other mandatory penalties.

These mandatory penalties include a loss of driving privileges for up to a year and participation in the Virginia Alcohol Safety Action Program (VASAP).

Penalties increase substantially for a second offense within five years, and DUID is a felony for a third offense within 10 years. Furthermore, DUID is a criminal offense that could follow you around for the rest of your life.

Imagine the effect of a DUID, for example, if you are seeking a job that would involve driving, obtaining a commercial driver’s license, obtaining security clearance, or obtaining a pilot’s license.

I’m Ready for Action

My name is Andrew Flusche, and I am ready to spring into action the moment you retain me as your DUID attorney. I handle all cases personally, and I enjoy good working relationships with local prosecutors and judges. Check out my client reviews here.

Call me at 540-318-5824, email me at, or contact me online for a free consultation, so we can discuss your options. My office is located in Fredericksburg, Virginia.


Ryan Fitzgerald

I'm Ryan Fitzgerald; everyone calls me Fitz. I partnered with Andrew to form a focused defense team that is devoted to your needs. I have over 12 years of experience as a former prosecutor, so I know what the Commonwealth wants to see for negotiations and how to find the weak spots in their case. My experience ranges from reviewing all incoming DWIs to prepare other prosecutors for court, to training officers how to build their DWI cases, to successfully prosecuting a thirty-year cold case homicide. Your initial consultation with me is free; you'll talk directly with me about your case and how we can leverage my experience and connections to obtain the best possible result.

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