Driving While Intoxicated: Understanding the Charge
In Virginia, it is illegal to drive a motor vehicle (including a moped), engine, or train while any one of the following conditions are also true of the driver:
- a blood alcohol concentration is 0.08 percent or more by volume or 0.08 percent or more per 210 liters of breath;
- under the influence of alcohol;
- under the influence of drugs to the extent it impairs the ability to drive;
- under the influence of a combination of alcohol or drugs that together impair a driver's ability to drive; or
- has measurable drugs within his or her system, including
- 0.02 milligrams of cocaine per liter of blood;
- 0.1 milligrams of methamphetamine per liter of blood;
- 0.01 milligrams of phencyclidine per liter of blood; or
- 0.1 milligrams of 3,4–methylenedioxymethamphetamine per liter of blood.
Many people are surprised to learn they can be charged with driving while intoxicated (DWI) or driving under the influence (DUI) when they feel perfectly fine to drive. The reason this is true is the law recognizes different people handle alcohol and drugs (whether or not they are prescription, over-the-counter, or illicit) differently. Some people, for example, would not be okay to drive after two glasses of wine. This might be true even if their blood alcohol concentration is less than 0.08 percent. Other people may feel just fine at a 0.10. However, because the law seeks to provide a bright line rule, you can get a ticket for driving while intoxicated any time your blood alcohol concentration is at or exceeds the limit of 0.08 percent.
Similarly, people may have drugs present in their system long beyond when they can feel the effects of those drugs. Nonetheless, the law provides if a certain level of a drug is present in someone' system, he or she may be charged with driving under the influence of drugs (DUID).
Driving While Intoxicated: Special Rules for Commercial Drivers
Commercial drivers face a lesser included offense for operating a commercial motor vehicle while having a blood alcohol concentration of 0.04 percent or more.
Driving After Consuming Alcohol: Special Rules for Minors
While anyone will get a DWI charge if he or she meets the above-listed requirements, regardless of age, minors are subject to more rules and regulations. For DWI charges, the word “minor” encompasses anyone under the age of 21.
If someone under 21 operates a motor vehicle after illegally consuming alcohol, and has a blood alcohol concentration of 0.02 percent, but less than 0.08 percent, this can be charged as “Person under age 21 driving after illegally consuming alcohol.”
Refusal to Give a Test
When driving in Virginia, you are presumed to have already consented to provide samples of blood, breath, or both to determine whether alcohol, drugs, or both are present in your system. When someone submits to a breath test, he or she has the right to observe the process, see the test result, and if the machine provides a written printout, he or she has a right to a copy of those printed results.
If someone refuses to take a breath test or is incapable of submitting to a breath test, the law allows taking blood to determine the presence of drugs or alcohol. This law, however, only allows the taking of a blood sample where other facts provide police with probable cause to believe the person was driving under the influence of drugs or alcohol.
It is illegal in Virginia to refuse to take a test if asked by law enforcement upon arrest for suspected DWI. You can, however, refuse a preliminary breath test that may be requested prior to an arrest.
The Difference Between A DWI and a DUI
Technically, the difference between a DWI and a DUI is the words used to create the acronym. A DWI refers to driving while intoxicated by drugs or alcohol, while DUI refers to driving while under the influence of drugs or alcohol. Practically speaking, they constitute the same offense under Virginia law. They are both slang terms that don't actually have legally distinguishable meanings.
The Difference Between Public and Private Roads
Virginia, like many states, makes no distinction between driving while intoxicated on public roads, private roads, or even in your own driveway. A recent bill, which would allow an exemption to driving or operating a motor vehicle while under the influence for those on their own property, such as listening to the radio in your parked car in our own driveway, failed to get enough votes to become law.
Penalties for DWIs
As a criminal offense, drivers face both the potential for fines and jail time. Drivers also face the possibility of losing their license for a period of time, depending on the circumstances of the case.
Minors under 21 face the loss of their license to drive as well as mandatory fines or community service. There may also be a period of incarceration for a conviction for driving after consuming alcohol.
For a first time refusal, a person will lose his or her driving privileges. A second refusal within 10 years of a first refusal or prior DWI is a criminal offense, which results in the loss of driving privileges, a fine, and potential jail time.
The law provides a number of areas of attack in DWI cases. For example, police must have a legal basis to stop your car in the first place. Next, they must have reasonable suspicion to ask for a breath or blood sample. The laws in Virginia are very specific about who may collect a blood sample and how the sample must be collected. The rules of evidence demand a clear and unbroken chain of custody of any blood sample. For breath and blood samples, the instruments used must be properly maintained and calibrated on a regular schedule. Failure to do so may result in an inaccurate test result.
Depending on the facts and circumstances of the case, other issues may present themselves, such as the following:
- Who was driving the car at the time the car was spotted by the police?
- Did the driver consume alcohol after driving but before apprehension?
- Is there a medical condition or other fact or circumstance that could lead to a false positive result?
Proper legal representation in DWI cases includes a complete review of the file in search of areas ripe for challenge.
Charged with an Alcohol-Related Offense?
If you are facing DWI charges, you need qualified legal counsel on your side. Contact The Law Office of Charles F. Koehler, P.C., to speak with one of our experienced DWI attorneys. We can answer your questions, determine if there is a legal challenge to the stop, the request to take the test, the test results, or any other potential problem with the case, and assist you every step of the way.