Drunk Driving
A conviction for a first offense of Driving While Intoxicated is a Class 1 Misdemeanor and is punishable by up to one year in jail and a $2500.00 fine. The minimum punishment is $250.00. You will also be required to enroll in the Virginia Alcohol Safety Action Program (VASAP) and your driver's license will be suspended for one year. You may apply for a restricted license that will allow you to operate a vehicle to and from school, employment and VASAP sessions. If your Blood Alcohol Content (BAC) is at least .15, the minimum sentence will include at least five days in jail and the installation of an ignition interlock system for at least six months on any vehicle registered or operated by you. With a BAC of greater than .20, the minimum jail time is ten days.
A second offense within five years of a prior DWI carries a mandatory minimum fine of $500.00 and jail time of at least twenty days and no more than one year. With a BAC of between .15 and .20 an additional ten days will be added to the minimum jail time; a BAC greater than .20 will require an additional twenty days minimum jail time. The requirement for the ignition interlock will also apply. Your license will be suspended for three years, the first of which you will not be eligible for a restricted license.
A third offense within ten years of a prior DWI is a Class 6 Felony and is punishable by up to five years in jail and a $2500.00 fine. The mandatory minimum sentence is $1000.00 fine and ninety days in jail. If all three DWIs were committed within a five year period, the mandatory jail time is six months. Your license will be suspended indefinitely; however, you may apply for reinstatement after five years. The vehicle you were operating at the time will be subject to seizure by the Commonwealth.
The burden of proof, in all DWI cases, rests with the Commonwealth to prove that your use of alcohol impaired your ability to operate a vehicle. While a BAC of .08 or higher is presumptive proof that you were impaired, this presumption is rebuttable. The Commonwealth may also prove their case with other evidence such as: your admission to using alcohol, your driving behavior, the results of field sobriety tests and/or other officer observations.
There are some defenses to a DWI charge. The officer that administered the BAC test must be trained to do so and the equipment must be fully operational. The Department of Forensic Science in Richmond maintains usage and maintenance logs on all equipment registered for use in Virginia. Your arrest for DWI must also take place within three hours of the stop in order for the BAC certificate to be admissible in court. Another defense that may apply is based on constitutional grounds. The officer must have a reason to stop your vehicle. If you weren't doing anything illegal and the officer cannot articulate a "reasonable suspicion" of illegal activity, the charges may be dismissed. Yet another defense involves the requirement that to be guilty of DWI, you must have been "operating" the vehicle while impaired. Although there is no bright line definition of "operating," the Virginia Supreme Court has defined an operator to be: "...one that produces a physical effect or engages himself in the mechanical aspect of a process or activity."
Refusal to submit to a chemical test to identify the presence of intoxicants is a violation of Virginia's implied consent law. The first offense for refusal is not a crime; it is an administrative sanction that carries with it a license suspension of one year. A restricted license is not an option. A second offense is a Class 2 Misdemeanor and is punishable by up to six months is jail and a $1000.00 fine. A third offense within 10 years of a previous refusal is a Class 1 Misdemeanor. If you are physically unable to perform the breath test (emphysema for example), the Commonwealth is required to offer you a blood test in lieu of the breath test.
Reckless Driving is a Class 1 Misdemeanor and is punishable by up to one year in jail and a $2500.00 fine. Reckless Driving with a suspended license that causes the death of another is a Class 6 Felony punishable by up to 5 years in jail and a $2500.00 fine. A Reckless Driving charge may be reduced to Improper Driving if the Court or the Commonwealth's Attorney determines that the person charged had only a slight degree of culpability. As with other criminal offenses, the burden rests with the Commonwealth to prove the driver operated the vehicle in a reckless manner. The fact that an accident occurred is not conclusive proof that the driver operated the vehicle in a reckless manner. You may also be charged with Reckless Driving for:
- Improper control or faulty brakes
- Passing when view is obstructed
- Car overloaded
- Passing two vehicles abreast
- Passing at an intersection or railroad crossing
- Passing a stopped school bus
- Failure to give proper signals
- Driving too fast for road conditions
- Exceeding speed limit by 20 mph or traveling 80 mph regardless of the speed limit
- Racing
Please note that the information provided on this page is general in nature, is subject to change without notice, and does not constitute legal advice. For more information, please call (540) 440-5136 or (703) 657-8104 to schedule an initial consultation.
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