What Are the Penalties for a Marijuana DUI in Virginia?


marijuana dui penaltyOn July 1, 2021, marijuana became legal for recreational use in Virginia. So can you get a DUI for weed? Yes. If the police catch you driving while “stoned,” Virginia will charge you with driving while intoxicated.

You can characterize that charge as either DUI or DUID (driving under the influence of drugs).

The penalties for DUID are the same as the penalties for DUI because it is essentially the same charge.

Marijuana DUI: The Legal Standard of Intoxication

The most important difference between a DUI for alcohol and a DUI for marijuana (a DUID) is that Virginia has no formal standard of intoxication for marijuana.

For alcohol, Virginia will presume that you are an impaired driver if your blood alcohol concentration exceeds 0.08%. No such objective standard exists for marijuana, although the state can use chemical testing as (inconclusive) evidence of DUID.

Impairment: Can You Get a DUI for Weed Based on the Presence of THC in Your Bloodstream?

In an adult DUI case, the Code of Virginia presumes you are NOT guilty of alcohol-DUI if your blood alcohol content is .05 or less.

In a marijuana DUID case, by contrast, you could be either guilty or not guilty with any amount of THC in your system at all. The issue is not how much THC was in your blood but whether you were driving “impaired” because of marijuana.

By contrast, Virginia is not likely to prosecute you for possession of marijuana due to the presence of THC in your bloodstream.

Keep in mind that in Virginia, the police can arrest you for smoking marijuana or possessing an open container of marijuana (presumably even a “joint”) even as a passenger in a vehicle that you are not driving.

The Role of Chemical Testing

Chemical testing is one form of evidence of marijuana impairment, but so is:

  • Your driving behavior, as observed by the officer and any witnesses;
  • Your own statements; and
  • Your performance on field sobriety tests (physical and mental tests for impairment that the officer administers at the scene of the traffic stop).

If you refuse to submit to chemical testing, the prosecutor can use your refusal as evidence of your guilt. Virginia can also suspend your driver’s license simply for refusing a chemical test, even if you were not impaired.


There is more than one way to beat a DUI for weed in Virginia. Below are descriptions of the two most popular ways.

Fourth Amendment Violation

The Fourth Amendment to the US Constitution prevents the police from searching your car or your person, or even pulling you over without some sort of justification.

For a traffic stop, the police normally need reasonable suspicion. If they pull you over without it, the judge may exclude everything they found from evidence.

Does the odor of marijuana justify a search of your car or your person?

No. The police may not search you or your car due solely to the odor of marijuana. Two exceptions are at the airport, and when you are driving a commercial vehicle.

Are sobriety checkpoints legal?

Virginia courts have ruled that sobriety checkpoints, where the police can check every driver at a given intersection for intoxication without reasonable suspicion, are legal in most cases.

But they are illegal in some instances, such as when police only stop drivers of a certain race. The police cannot pull you over simply for evading a sobriety checkpoint.

The Bottom Line: Virginia DUID Penalties

In Virginia, the penalties for DUID are as follows:

  • First offense (a Class 1 misdemeanor): Up to 12 months in jail, a fine of $250 to $2,500, and a one-year driver’s license suspension.
  • A second offense within five to ten years (Class 1 misdemeanor): A minimum of 10 days in jail (up to a year), plus a minimum fine of $500 (up to $2,500) and a three-year driver’s license suspension.
  • A second offense within five years (Class 1 misdemeanor): 20 days to one year in jail, a minimum $500 fine, and a three-year driver’s license suspension.
  • A third offense within 10 years (Class 6 felony): A minimum of 90 days in jail (up to 5 years) plus a minimum fine of $1,000 (up to $2,500), an indefinite driver’s license suspension, and forfeiture of your vehicle.
  • A third offense within 5 years: A minimum of six months in jail (up to five years) plus a minimum fine of $1,000 (up to $2,500), an indefinite driver’s license suspension, and forfeiture of your vehicle.

Other penalties, such as community service and mandatory participation in the Virginia Alcohol Safety Action Program (VASAP), may also apply.

The penalties for further offenses are even more severe. The professional consequences can be devastating as well.

Now Is the Time to Start Preparing Your Defense

Did you get a DUI for weed? I am Andrew Flusche, and I will begin preparing your defense as soon as you retain me.

I handle all my cases personally and fight hard for my clients. Please examine my client reviews here.

Call me at 540-318-5824, or contact me online for a free consultation. My office is in Fredericksburg, Virginia.

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, and Facebook. 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.

What's Next?

Get Free Answers

Andrew wrote the book on DWI. It’s jam-packed full of answers for your case.

Get Your Free Copy

Andrew wrote the book on reckless driving. It’s the most-reviewed Virginia reckless driving resource on Amazon.com.

Get Your Free Copy

Our special report about driving on suspended explains six critical issues to possibly fight in your case.

Get Your Free Copy


We provide free consultations for cases in our area. If we can't help, we'll do our best to connect you with someone who can.



Contact Andrew & Fitz