DUI Overview

What is DUI?

DUI, or Driving Under the Influence, is an offense set forth in Section 18.2-266 of the Virginia Code, which states that it is unlawful for any person to drive or operate any motor vehicle, "[w]hile such person has a blood alcohol concentration of .08% or more . . . . or while such person is under the influence of alcohol, or such person is under the influence of any narcotic drug or any other self administered intoxicant."

There are two basic ways a prosecutor may attempt to prove that a defendant is intoxicated.  The first is for the prosecutor to show that the defendant’s blood alcohol level was 0.08% or more at the time of driving.  This is usually done by a breath test, or sometimes a blood test.  This is the easiest method for a prosecutor because he or she need prove nothing else.

The second method is to demonstrate that the defendant was driving under the influence of alcohol or drugs.  In order to do this, the prosecutor will attempt to use the results of field sobriety tests and the defendant’s driving behavior.

What is the difference between DUI and DWI?

In Virginia, there is no “DWI” offense.  “DWI” stands for “Driving While Intoxicated” and in some states is a separate and more serious offense than DUI. However, it is still common to hear the name “DWI” when the speaker means “DUI”.  It is even quite common for the officer to write “DWI” on the warrant or summons.  This clerical error does not change your rights, for good or ill.

What is the punishment for DUI?

The maximum punishment for a first or second DUI is one year in jail, a $2500 fine and the loss of driving privileges for one year, but such punishment is very rare.  A normal first-time DUI case where the blood-alcohol level is below .12% often results in a suspended jail sentence (meaning that the defendant doesn’t actually serve jail time if they remain of good behavior), a fine of $300-$500, and the loss of driving privileges. A person convicted of DUI will also be sentenced to enter the Virginia Alcohol Safety Action Program (VASAP), a drunk-driving prevention program. Persons who lose their driving privileges under this statute are normally allowed to retain a restricted driver’s license that permits them to drive to work, school and daycare. 

Perhaps the most serious result of a first-time DUI conviction is the effect it almost certainly will have on your insurance.  Most insurance companies will move you into a very expensive “high-risk” category, or simply raise your rates. Insurance rates can often increase by 300-500% after a DUI conviction.

Second and subsequent DUI convictions carry enhanced punishments, as do first-time convictions with a particularly high blood-alcohol level.

Was I required to perform Field Sobriety Tests?

Absolutely not.  The officer “offers” you these tests partly in order to develop evidence against you.  You have no legal duty to provide the officer with any such evidence. Whether the test is balancing on one leg, saying the alphabet, counting backwards, the 9-step walk-and-turn or following the officer’s pen with your eyes, all these tests are voluntary!  You need not perform them and your refusal to do so may not be used against you.  The same applies to the preliminary breath test often offered in the field (at the scene of the traffic stop).  You have absolutely no legal duty to comply with the officer’s request that you blow into this portable machine.

However, there is one test that you are required by law to perform.  If you are arrested and taken back to the police station, the officer will require you to blow into a machine there.  Virginia uses a machine called the Intoxilyzer 5000.  It is a violation of law to refuse this test. If you unreasonably refuse to take this test, you will probably lose your driving privileges for a full year, without the benefit of a restricted license.  If you have previously been convicted of refusal or DUI within the last ten (10) years, you will lose your license for a full three years and possibly face up to six months in jail (or a full year on a third conviction).

It is very important to remember that an officer does have the authority to require you to exit your vehicle if you are lawfully stopped. Once you are out of the vehicle, however, you are not required to perform any tests or tell the officer whether you have been drinking.

What is an Interlock Device?
An interlock device is a machine that uses a breath analysis mechanism to make the car inoperable if ethyl alcohol is detected in the breath of the driver. If a person has been convicted of a second or subsequent offense relating to the operating of a motor vehicle while under the influence of alcohol committed within five years, the court must order the defendant to have an interlock device installed on each motor vehicle owned or operated by the defendant.

Will a DUI arrest show on my record?
If you are arrested for DUI, that arrest will show up on your criminal record. If you are convicted for DUI, the conviction and preceding arrest will be on your record for the rest of your life.   However, if you are not convicted for the DUI the arrest can be expunged from your record if certain requirements are met.

Can I be charged with DUI if I wasn’t drinking alcohol, but did take prescription Medication?
Yes, if the medication is capable of causing impairment. Often, the police will assume impairment is caused by a medication if you admit to taking anything. Officers are not trained in which medications or even illegal drugs can cause impairment. Common prescription medications that can cause impairment include: Xanax, Valium, Hydrocodone/ Vicoden, Soma, and Codeine.

Hiring the Law Offices of Scott C. Nolan, DUI attorney
If you have been charged with DUI or an intoxication offense in Fairfax, you should contact Attorney Scott C. Nolan immediately.  Scott Nolan is an aggressive DUI defense attorney who is committed to fighting his clients’ DUI charges and protecting their best interests.