Virginia DUI Defense Lawyer


If you are charged with a Virginia DUI or DWI, you need to learn about the offense. And you need to consult with a skilled Virginia DUI Defense lawyer.

Even if this is your first offense, you are still facing a significant fine, loss of your driver’s license, and possible jail time.

A DUI / DWI case involves many legal elements. This summary explains three ways the Commonwealth of Virginia can prove that you were intoxicated. Most cases combine one or more different factors to meet the government’s burden of proof.

Virginia DUI Laws

In Virginia, when your blood alcohol content is 0.08% or higher and you operate a motor vehicle (including boats and other watercraft) you are legally considered to be operating under the influence (DUI/DWI).

In some cases you may be judged to be operating a motor vehicle under the influence with a lower blood alcohol content if your ability to operate the vehicle is impaired.

Furthermore, if your ability to operate a motor vehicle is affected because of the influence of any drug, you may be subject to the same legal penalties as driving under the influence of alcohol.

In Virginia, the laws for driving under the influence (ie. DUI or DWI) are codified in §18.2-266. The statute reads:

It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article, (ii) while such person is under the influence of alcohol, (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, (iv) while such person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, or (v) while such person has a blood concentration of any of the following substances at a level that is equal to or greater than:…read more

Virginia DUI / DWI Penalties

DUI OffenseClassificationMaximum JailMinimum JailMaximum FineLicense Suspension Duration
1st offenseClass 1 misdemeanor12 monthsn/a$2,50012 months
2nd in 10 yearsClass 1 misdemeanor12 months10 days$2,50036 months
2nd in 5 yearsClass 1 misdemeanor12 months20 days$2,50036 months
3rd in 10 yearsClass 6 felony5 years90 days$2,50036 months
3rd in 5 yearsClass 6 felony5 years180 days$2,50036 months


Conviction for DUI first offense

  • Mandatory, minimum $250 fine
  • Driver’s license revocation for one year

Conviction for DUI second offense

  • Mandatory, minimum $500 fine
  • Driver’s license revocation for three years
  • Possible jail term up to one year

Conviction for DUI second offense within ten years of prior offense carries the following additional penalty

  • Mandatory, minimum ten-day jail term

Conviction for DUI second offense within five years of prior offense carries the following additional penalty

  • Mandatory, minimum 20-day jail term

Three DUI convictions within a ten-year period

  • Mandatory, indefinite driver’s license revocation
  • If your driving privilege is revoked for a first or second DUI offense conviction and you receive another DUI, the license revocation period will run consecutively with the existing revocation period.

Conviction for DUI third offense or DWI felony

  • Mandatory, minimum $1,000 fine
  • Mandatory indefinite driver’s license revocation
  • Prosecution as a Class 6 felony

Conviction for DUI third offense within five years carries the following additional penalty

  • Mandatory, minimum six-month jail term

Conviction for DUI third offense within ten years carries the following additional penalty

  • Mandatory, minimum 90-day jail term
  • Permanent forfeiture of your vehicle (if you are the sole owner)

Conviction for DUI fourth or subsequent offense

  • Mandatory, minimum one-year jail term

BAC of 0.15% and not higher than 0.20% at the time of arrest

  • First offense carries a mandatory, minimum five-day jail term in addition to all other penalties
  • Second offense within ten years carries a mandatory, minimum ten-day jail term in addition to all other penalties

BAC of 0.20% or higher at the time of arrest

  • First offense carries a mandatory, minimum ten-day jail term in addition to all other penalties
  • Second offense within ten years carries a mandatory, minimum 20-day jail term in addition to all other penalties

Dangerous Driving Behaviors that can lead to a DUI stop

Erratic driving behavior or unsafe driving is usually the first thing an officer notices about you.

While this is normally used to show that the officer had probable cause to make a traffic stop, it can also be used as evidence of intoxication.

If the officer (or other witnesses) testify that you were weaving in and out of lanes, driving erratically, or some other odd behavior, it is important to see if there is a way to rebut the testimony.

Were you really driving erratically? How is the officer sure it was your vehicle? Was there some reason other than alcohol that explains your behavior? These, and other questions, are points to cover with your attorney.

Field sobriety tests (FSTs)

Like your driving behavior, field sobriety tests have a dual purpose: determining whether there is probable cause for an arrest and proving that you were intoxicated.

What many people don’t know is that field sobriety tests are not indisputable.

Only four tests have been scientifically studied to determine if they actually indicate intoxication: heel to toe, walk and turn, one leg stand, and horizontal gaze nystagmus.

Even these tests must be conducted using the same procedures as the studies, or there is no way to know if they are accurate.

Depending upon the officer’s training, what happened at the scene, and the specific tests used, there may be effective ways to cast doubt upon or have the tests excluded from evidence.


One of the most certain ways for the Commonwealth to prove a Virginia DWI charge is with an approved breath or blood alcohol analysis. But these tests are not perfect.

There are a number of factors to scrutinize closely and examine at trial, such as:

  • Testing procedures – Each alcohol testing method must comply with specific procedures set forth by the Virginia Department of Forensic Science. If these procedures are not done correctly, it can call into doubt (or even invalidate) the results of the alcohol test.
  • Licensing – The breath test operator must be properly trained and licensed. Licensing problems can invalidate the breath test certificate.
  • Certificate errors – The actual certificate of breath alcohol analysis can be entered as evidence of your intoxication, but only if it is accurate. Errors on the face of the certificate might get it excluded from your trial.

If the Commonwealth successfully introduces evidence of your blood or breath alcohol content, that does not automatically mean you were intoxicated.

It simply means that the Commonwealth is entitled to the presumption that you were intoxicated. Your attorney can rebut (dispute) the presumption if there is affirmative evidence that you were not intoxicated at the time.

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Recent Case Result: DWI Dismissed After Officers Disagree

(Cases depend upon unique facts. Past cases do not guarantee future outcomes.)

THE STORY: Aaron was pulled over late one night on his way home from work. A backup officer arrived to perform field sobriety tests, and that officer did not think Aaron was impaired. The initial officer disagreed, did his own field tests, and arrested Aaron for DWI.

At trial, we argued that the officers’ disagreement about even arresting Aaron shows that there is doubt as to whether or not he was impaired. The judge unfortunately disagreed and convicted Aaron of DWI.

But we didn’t stop fighting! We appealed Aaron’s case for a new trial in Circuit Court. We argued again that the judge should dismiss the DWI since the two officers could not agree on the side of the road. If an officer who looked Aaron in the face and smelled his breath didn’t think he was impaired, the judge should not find him guilty beyond a reasonable doubt.

CASE OUTCOME: Victory! It took two trials and many court appearances, but we finally got the Circuit Court judge to rule in Aaron’s favor. He dismissed the DWI!

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Can You Refuse a Blood Test for DUI?

In Virginia if you are arrested for suspicion of DUI the law requires that you consent to a breath or a blood test to determine the alcohol content of your blood.

If you refuse, you will be charged with an offense for refusal. However, what happens if you refuse? Can the officer still get your blood?

Yes. If you refuse in Virginia the officer can still try to get your blood by way of a search warrant.

Under this procedure the officer has to go to the magistrate and establish probable cause that you are in fact intoxicated and that taking your blood can turn up evidence to prove that.

Through the search warrant the officer can seek to seize your blood for testing to determine the alcohol content inside your body.

Refusing may not have the effect that you’re hoping of keeping the Commonwealth from gathering evidence against you. They may still be able to gather evidence to prove what’s in your blood at the time of driving.

Note that a search warrant case has its own unique defenses if you are charged with DUI at the end. There different statutory requirements that the Commonwealth has to meet for the search warrant to be valid.

Then they still have to prove that there was something prohibited in your blood to prove an actual DUI.

This is why for any DUI, and especially a blood search warrant case, you need to talk an experienced DUI attorney like myself, so we can over the basics of your case and work on possible defenses together.

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Recent Case Result: Fought the Arrest and Won the DUI!

(Cases depend upon unique facts. Past cases do not guarantee future outcomes.)

THE STORY: My client was charged with DWI and refusal. This was his second offense, so the stakes were high – including six years of license suspension and twenty mandatory days of jail.

The deputy pulled my client over because the registered owner of the vehicle did not have a valid license. But even though the deputy quickly confirmed that my client was NOT the owner, and my client DID have a valid license, the deputy thought he smelled alcohol in the vehicle. A DUI investigation ensued.

My client was smart enough to refuse the deputy’s request to complete field sobriety tests. These tests are always optional, and it’s best to refuse them! But the deputy chose to arrest my client simply based on the odor of alcohol.

We put the case on for trial and made a motion to suppress the arrest due to the lack of probable cause that my client was under the influence of alcohol. This violated my client’s Fourth Amendment rights.

The judge agreed, and dismissed all charges!

CASE OUTCOME: NOT Guilty. The judge dismissed the DWI and refusal charges against my client. If convicted, he would have lost his driver’s license for SIX years and gone to jail for several weeks.

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Can I legally Refuse a Roadside DUI/DWI test?

Did you know that you CAN legally refuse road-side DUI / DWI tests, such as the walk-and-turn test and the handheld breath test?

Those tests can significantly hurt your case at court, and it might help your case if you do refuse to perform them. However, in Virginia, you must do the breath test at the station, or else you could be charged with refusal.

What Are Virginia Drinking and Driving Laws?

What are Virginia Drinking and Driving Laws? Virginia has many laws that cover the intersection of driving and alcohol. Drinking and driving is just one of many activities that Virginia law criminalizes.

Virginia doesn’t actually have an open container statute that prohibits you from just simply having an open container in a vehicle.

However, we do have a statute that prohibits drinking while driving. That statute says that no one shall operate a motor vehicle while drinking.

The interesting part of the statute is that if you have an open container in the vehicle, the Commonwealth can get a presumption in court that you in fact were drinking and driving. This means Virginia does sort-of have a prohibition on open containers.

Drinking and Driving, or DUI?

But drinking and driving can also refer to driving while intoxicated (DWI or DUI). This is obviously a much worse offense. Simply drinking while driving, if you’re not drunk, in Virginia is a class 4 misdemeanor.

It’s not even a jailable offense, and the judge cannot suspend your driver’s license.

What is the Presumption of Guilt in Virginia DUI Cases?

Virginia takes DUI seriously, and the law gives the Commonwealth advantages in proving their case. The biggest advantage they get is the “presumption” that you are intoxicated if your blood alcohol content is .08 or higher.

While Virginia case law (under Yap v. Commonwealth) actually holds that this “presumption” is really a “permissive inference,” which means that the judge or jury is free to reject the conclusion that you are in fact intoxicated, in practice, that’s not what happens.

Essentially, if the Commonwealth can get a .08 blood or breath certificate into evidence against you, most judges will find that’s enough to convict you of DUI.

There may be other excellent defenses in the case, but arguing about the certificate is sadly an uphill battle due to this presumption in the law.

On the other hand, if the certificate shows a .05 or lower blood alcohol content, WE get a presumption that you are NOT intoxicated. This can be extremely useful in defending some cases.

What Happens If You Get A DUI Under 21?

If you are under 21 and charged with Virginia DUI, you could be facing one of two charges:

  1. Driving after illegally consuming alcohol, referred to as “baby DUI”, or
  2. DUI.

It’s important to first understand what you’re accused of doing wrong so that we can approach your defense correctly.

Baby DUI cases are fairly simple for the Commonwealth to prove, since they just need to show that you were driving and you had a .02 or higher blood alcohol content.

As you can see, it’s an extremely low level, compared to .08 for adult DUI.

Oddly enough, the punishment for juvenile DUI and adult DUI is basically about the same. Both cases would be looking at 1 year loss of your license and a misdemeanor conviction.

The big difference is that VASAP is not required by law for underage DUI.

Client Testimonials

Please note:

  • While we’ve only included one here, I have over 150 reviews around the web. Check them out on Google, Avvo, and Yelp.
  • The testimonial below was originally posted on Yelp.

I was in need of a lawyer and I searched for the best, and I found him. Andrew was very helpful and walked me through the whole thing. He gave some great pointers, that was a big help. If I ever need another attorney, Andrew is the one I would call.Thanks Andrew for everything.

Reviewing: Andrew Flusche, Attorney at Law, PLC
Date published: 2012-11-25
Rating: ★★★★★ 5 / 5 stars

Contact Our Virginia DUI Defense Lawyers at Flusche & Fitzgerald Today

Andrew and Fitz have represented thousands of clients throughout Virginia with charges for driving under the influence. We understand the stress and uncertainty that accompanies a criminal charge.

I regularly work with clients who are charged with DUI and other traffic offenses in Virginia courts around Stafford, Spotsylvania, Fredericksburg, and King George.

Some people think DUI charges do not carry severe penalties and do not need to be taken seriously. However, a DUI conviction can result in jail time, costly fines, and permanent damage to your reputation.

Contact Flusche & Fitzgerald to schedule a free consultation with a member of our team.

Further reading about Virginia DWI

These are my most popular articles on Virginia DUI defense:

You can read more articles and watch videos in my DUI archives. You can also read other traffic defense articles on my blog. Please contact me today so I can be your Virginia DUI defense lawyer.

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