Every year, hundreds of Virginia drivers are arrested for driving under the influence of alcohol or drugs. The threshold for arrest has slowly been lowered by the state legislative body over the past 15 to 20 years. The penalties have also been increased to include loss of license, mandatory jail in some instances, ignition interlock, costly probation programs, and hefty fines. The law office has helped many clients obtain dismissal or reduction of the charge to lesser offenses, such as Reckless Driving. Attorney Yeargan has 22 years of experience defending DUIs and DWIs in the state of Virginia.
Dismissal or nolle prosequi of a DUI/DWI charge allows an individual to seek expungement of the arrest from the criminal record. Reduction of a DUI/DWI charge to certain classes of offenses also allows expungement of the DUI arrest. Attorney Yeargan has helped numerous clients expunge their arrests after successfully defending a DUI charge.
The terms Driving Under the Influence of Alcohol, Driving While Intoxicated (.08 or greater blood alcohol) and Driving Under the Influence of Drugs (Cocaine, Methamphetamine, etc.) are used interchangeably under the statute and treated the same under Virginia law.
What Is the Legal Limit for Intoxication in Virginia?
The legal limit for adult drivers in the Commonwealth of Virginia is 0.08 percent blood alcohol concentration. The concentration of blood alcohol is measured by police with a breath test machine called the Intox EC/IR II, made by Intoximeters, Inc., a company located in St. Louis, MO. These machines are relatively new and replaced the older Intoxilyzer 5000 machines used for years in the Commonwealth. To learn more about Virginia's DUI/DWI laws, please review:
Understanding DUI/DWI Test Results
Test results from the Intox EC/IR II may be introduced into evidence at the trial of a DUI. If the test results indicate a blood alcohol concentration of 0.08 percent or more of alcohol, there arises a rebuttable presumption that the defendant was under the influence of alcohol intoxicants at the time of the alleged offense. In order for the test results to come into evidence at trial, the person who administered the test must now be present in court as a witness (due to the recent Melendez-Diaz v. Massachusetts decision from the United States Supreme Court). At trial, the presumption of intoxication from test results may be overcome by a defendant's driving conduct, performance on field sobriety tests, and behavior at the time of arrest. For answers to some commonly asked questions about DUI/DWI charges in Virginia, see:
DWI and DUI Laws in Virginia - What Are the Penalties Involved?
In the Commonwealth of Virginia, a first offense of Driving Under the Influence (DUI) is a Class One Misdemeanor, punishable by up to 12 months in jail and/or a fine of up to $2,500.00. Fines for a first offense are usually under $600, and the court will suspend half of that conditioned on good behavior and completion of probation requirements. A conviction for DUI under Virginia Code §18.2-266 results in a permanent criminal conviction and statutory 12 month loss of license. DUI is a serious criminal offense and stays on a Virginia driving record for eleven (11) years. The DMV assesses six points as a demerit deduction for this conviction. DUI convictions may impact insurance rates, employment opportunities, and applications for security clearances. Convictions for DUI do not drop off the permanent criminal record.
Upon arrest for a first offense DUI/DWI, the driver's license of the driver is suspended immediately by the Division of Motor Vehicles for seven (7) days. For a second offense, the driver's license is immediately suspended for sixty (60) days. A notice of this suspension is provided to the accused by the police officer. These orders are administrative suspensions and may be challenged by motion with the court in certain circumstances.
These administrative suspensions are a "cooling off period" for arrested drivers and are in addition to any suspension imposed later at conviction.
Jail Time That May Be Imposed:
Generally, the jail penalties for DUI increase depending on the level of intoxication, the defendant's driving record, and behavior at the time of the stop. On a first offense with a blood alcohol concentration of 0.08 to 0.14, a defendant may receive jail time that is all suspended, conditioned on his or her good behavior. That means the person does not serve an active jail sentence unless they violate terms of the court's order regarding payment of fines and court costs, staying of good behavior, completion of the Alcohol Safety Action Program, and payment of restitution. If the client fails to obey the terms of the court's order, the judge has the power to impose part or all of the suspended sentence.
Defendants convicted with a blood alcohol concentration of 0.15 to 0.20 on a first offense are required by law to receive a mandatory, minimum incarceration of five days.
If the blood alcohol level of the client is more than 0.20, the mandatory, minimum period of incarceration is ten days on a first offense.
Virginia Code §18.2-270 states that if there was a minor in the car (aged 17 or younger) at the time of arrest the defendant will receive an additional five days minimum, mandatory jail time and an additional fine of $500 to $1,000.00.
Penalties increase substantially for those charged with a second, third or fourth offense of DUI.
A third conviction for DUI within ten years is a Class 6 felony in the Commonwealth of Virginia under §18.2-270 of the Code of Virginia. For additional information on Virginia DUI and DWI penalties, please read:
Note: The above penalties are statutory and meant to inform you, not create anxiety or fear. The penalties are not imposed if the charges are dismissed. The penalties may also be much less if the case is reduced to a lower level offense by an agreement with the prosecutor. For example, a DUI with a breath alcohol sample of .16 may be reduced to a "standard, first DUI" with all suspended jail time. The breath test result may be "stricken from the record" and the court in that instance will not impose mandatory, minimum jail time. Each case is different, based on the facts of the stop, the client's driving record, and interaction with the police officers.
The Alcohol Safety Action Program:
Those convicted are required to enter into the Alcohol Safety Action Program (ASAP). The ASAP program is an educational and probationary program that consists of ten classes lasting two hours each. A probation officer supervises completion of the program and may require random testing for alcohol and drug use. Any suspended jail sentence or suspended fine is conditioned on your good behavior and successful completion of this program.
If a probationer fails any drug or alcohol testing during the ASAP program, they may be referred to a treatment program. Repeated positive tests may result in the probationer being sent back to court for a compliance hearing with the judge. The judge may impose all or part of the suspended sentence for violation of the probation terms.
There are 24 ASAP locations throughout the state. If you do not live in the county where you are arrested, your participation may be transferred to a program in your area. The fee to participate in ASAP is $400. Once the ASAP program is completed, ASAP reports your status to the DMV so that you may pay the necessary fee to reinstate your license when the suspension period is over.
Restricted License Availability:
If you are convicted of DUI/DWI, the law allows individuals to petition the court for a restricted license. Effective July of 2020, a person may obtain a twelve month restricted license with no hourly restrictions of travel. An individual may travel wherever they like and there are no practical restrictions on locations and time. Ignition Interlock (a device which tests a person's breath for alcohol) must be installed in the vehicle for all twelve months for this restricted license to be valid. There is an expense to install and maintain the device during the period it is in your vehicle.
In the alternative, a person convicted may request a limited restricted license to drive to work, school, church, child care, or medical appointments. This limited restricted license is valid for all twelve months of the original license suspension. However, the person must only have ignition interlock installed for six months. This can save considerable expense in ignition interlock monitoring fees.
The law office helps you obtain the restricted license on your final court date if you are convicted. It will advise you on steps to take to prepare for this if it is necessary. Please review the Fairfax County General District Court Restricted License web page for more information.
DWI and DUI Strategies for Defense in Virginia - What Steps Does the Lawyer Take to Defend the Client?
Should you find yourself charged with a first or repeat DUI in the state of Virginia, you need to contact and work with a reliable and reputable DUI defense lawyer. An experienced lawyer can reduce the severity of the penalty of the DUI charge, or perhaps even get the DWI or DUI charge completely dropped. You will need a sound legal defensive strategy in order to successfully defend a DWI/DUI charge in Virginia. The law office possesses extensive experience in successfully defending clients from DWI and DUI charges in Virginia courts.
Attorney Yeargan will diligently prepare your case to obtain the best result at trial or by negotiation with the prosecutor prior to trial. The law office will do the following ten things when defending your charge:
(this list is a guide and not applicable to every case)
- Obtain and review the charging documents, including the Warrant of Arrest, Administrative License Suspension Order and Criminal Complaint (which describe the facts giving probable cause for arrest).
- Guide the client about completing tasks before court to help mitigate the conviction and/or penalties, such as Completion of Driving Improvement Course, Community Service, voluntary Substance Abuse Treatment and Counseling, etc.
- Work with the client to draft a detailed summary of the stop and arrest based on their memory of events.
- Enter a Discovery Order requiring the prosecutor to provide essential information for the preparation of your defense.
- Review the police report and video evidence of the stop and arrest (Body camera and Vehicle camera) obtained in Discovery.
- Interview any potential witnesses and subpoena them to court if necessary.
- Request records for the breath machine used to measure the breath alcohol of the client, through a Freedom of Information Act request. This is done through the Department of Forensic Sciences in Richmond. This is not done when the client is charged with Refusal to Take Breath Test in addition to the DUI/DWI charge.
- Sit down with the client, review the facts and evidence and discuss strategies for resolving the case at trial or by agreement with the prosecutor's office (Commonwealth Attorney).
- Prepare any pre-trial motions, if necessary, that may help to get the charges dismissed or reduced in court (including motions to suppress or exclude evidence).
- Appear at all arraignments, status hearings, motions hearings and the trial date.
Contact Attorney Wilfred Yeargan for a Consultation - Experienced Law Office Serves Fairfax County, Prince William County and other Locations Throughout Virginia
If you have been charged with a first, second or third offense of DWI/DUI in Virginia, contact The Law Office of Wilfred W. Yeargan for a free consultation. Contact us online or call directly and schedule your initial consultation. The law office has 22 years of experience defending alcohol related driving cases and will work hard to obtain the best results for you. The firm protects your legal rights and will guide you through the process from start to finish.
The law office serves many counties and cities in the state, including Fairfax City, Falls Church, the Town of Vienna, the Town of Herndon, Arlington County, Loudoun County, the City of Alexandria, Warren County, Prince William County, Stafford County, the Northern Neck areas of Westmoreland County and King George, Caroline County, Hanover County, etc. Contact the office and it will assist you with your case today!