DWIs in Virginia: Offenses, Penalties, Refusal and Field Sobriety Tests

It is illegal for any person in Virginia to drive with a blood alcohol concentration (BAC) of 0.08 or greater, or to drive under the influence of alcohol or drugs to a degree which impairs the driver's ability to safely operate the vehicle. The penalties for driving while intoxicated (DWI) are severe, as are the penalties for refusing to submit to a BAC breath or blood alcohol test.

DWI Penalties in Virginia

Penalties for a DWI conviction in Virginia vary depending on the age of the offender and the number of similar offenses the person has been previously convicted of. Consequences of a DWI conviction in Virginia include:

• First Offense: license suspension for one year, a $250 fine and possible imprisonment if BAC level is over a certain limit
• Second Offense Within Five to Ten Years: license suspension for three years, a $500 fine and jail time of between 20 days and one year
• Third Offense Within Ten Years: license suspension for at least five years, at least $1,000 fine and imprisonment for at least 90 days/imprisonment for at least six months if the third offense is within five years
• Fourth or Subsequent Offense Within Ten Years: license suspension for at least five years, at least $1,000 fine and a minimum of one year imprisonment

It is important to note that different penalties apply if a person under the age of 21 is convicted of a DWI in Virginia. The consequences for a person under the age of 21 include: forfeiture of their driver's license for one year, unless they qualify for a restricted license and either a $500 minimum fine or 50 hours of community service.

Refusal to Submit to a Breath or Blood Test

Virginia has an implied consent law which insists that anyone who drives on a road in Virginia has given his/her consent to a test of breath, blood or both in order to determine their BAC. Due to this implied consent, refusing to submit to a BAC test is an offense separate from DWI offenses, and the refusal itself carries separate punishments. These punishments vary depending on how many refusals an offender has been convicted of:

• First Refusal: license suspension of one year
• Second Refusal Within Ten Years of a Previous Refusal or DWI Conviction: license suspension of three years, $1,000 fine and a possibility of six months imprisonment
• Third Refusal Within Ten Years of a Previous Refusal or DWI Conviction: license suspension of three years, $2,500 fine and a possibility of imprisonment for one year

These penalties are imposed in addition to any penalties one is sentenced to for a DWI offense itself.

Note that the preliminary portable breath test that some officers give after initially pulling a suspect over may be refused without punishment. Only the breath or blood tests administered at police stations and hospitals may not be refused.

Field Sobriety Tests

In addition to requesting a breath or blood alcohol test, an arresting officer may request that a suspected DWI offender submit to one or more field sobriety tests. The results of these tests are admissible in court, though the suspect's lawyer will likely have many grounds to challenge them on. There are three types of field sobriety tests:

• Horizontal Gaze Nystagmus: An officer will ask a suspect to follow an object horizontally with his/her gaze and watch for involuntary jerking/impairments of the eyes
• Walk and Turn: An officer will ask a suspect to walk heel-toe in a straight line
• One Leg Stand: An officer will ask a suspect to stand on one leg for thirty seconds while counting aloud

These field sobriety tests are based on the assumptions that the overly intoxicated will be unable to follow directions, will have issues with balance and will not be able to hold their gaze properly. However, many other reasons exist for people to fail these tests beyond intoxication. These reasons include: disability, fatigue, illness, coordination, mental agility, the effect of medicine on the system and failure of the officer to administer proper instructions. An attorney can challenge the validity of field sobriety tests under individual circumstances.

For Further Reference

Given the severity of punishments imposed upon those who are convicted of driving while intoxicated or of refusing to submit to a BAC test, it is important to retain the counsel of a professional who will advocate on your behalf. If you have been charged with driving while intoxicated, please contact an experienced criminal defense attorney.