When someone is charged with a third driving while intoxicated (DWI) offense, he or she faces two separate and serious sets of consequences. There are proceedings that take place in criminal court and proceedings that take place involving one's driving privileges and car ownership.
Criminal Court
In criminal court, a person faces criminal consequences. Criminal consequences include:
- Jail time
- Fines
- Probation
- Classes about chemical use and abuse
- Court ordered treatment.
These criminal consequences are imposed only after due process of law. This means a person charged with DWI is entitled to challenge any constitutional issues, including the stop of the car, any statements made, searches done by police, seizures of one's person or property, and warrants executed.
Additionally, a person charged with DWI is entitled to a trial by jury or judge. The government is required to prove its case beyond a reasonable doubt. They must bring in witnesses to testify in open court. The defense has the right to cross-examine these witnesses. Additionally, a person can call witnesses on their behalf at trial. They also have the right to testify or remain silent.
In most DWI cases, the state extends a plea offer at some point. It is up to the person charged with DWI to decide whether to take a deal or try the case.
Penalties in Virginia for a Third DWI
The criminal penalties for a third DWI in Virginia vary depending on how long it has been since your last DWI conviction. According to the Virginia Code § 18.2-270, a third DWI within 10 years is a Class 6 felony. It is punishable by up to five years in prison and a minimum fine of $1,000.
There are two specific minimum jail requirements subject to the timing of the DWIs:
- If the three DWI offenses are within the past five years, there is a mandatory minimum sentence of 180 days in jail.
- If the third DWI is within 10 years of two other DWIs, there is a mandatory minimum sentence of 90 days in jail.
Alcohol Safety Action Program (ASAP) in Loudoun County
Virginia's Alcohol Safety Action Program (ASAP) is probation monitoring that includes a number of different features, such as:
- Supervision monitoring
- Ignition interlock monitoring
- Substance abuse treatment (if required), and
- Other conditions ordered by the court.
If convicted of a third DWI, one will be expected to participate in Virginia's ASAP. Once someone has been referred to the Virginia ASAP program for probation, he or she is assigned a probation case manager who meets with him or her to determine the appropriate level of education and/or treatment services. The probation case manager also monitors the person to make certain all requirements of probation are met. Probationers only have 15 days to report to the local ASAP office.
There are ASAP offices located throughout the state. In Loudoun County, there are two offices:
Bull Run ASAP
Main Office
9108-D Manassas Drive
Manassas Park, VA 20111
Phone: (703) 369-7979
Leesburg Branch Office
9 Loudoun Street, S.E.
Leesburg, VA 20175
Phone: (703) 771-4702
ASAP offers two 20-hour programs for those who need education rather than treatment. Participants are tested for alcohol and drugs. If participants test positive for either, they are redirected to treatment.
Third DWI & Driver License & Vehicle Consequences
In addition to facing criminal penalties, there are consequences that involve one's driving privileges and vehicle.
Driver License Consequences
In Virginia, when someone is charged with a third DWI in ten years, their driving privileges are immediately suspended. If they are convicted of a DWI, their license will be revoked for an indefinite period of time.
First, there is a minimum three-year suspension period. After three years, a driver can apply for a restricted license. This restricted license is permitted for the purpose of driving to and from work only. To obtain one, you must:
- Petition the court to request a restricted license, and if permitted
- Work with the Virginia Alcohol Safety Action Program (VASAP) to coordinate the installation of ignition interlock in your vehicle.
After two years of a restricted license, an individual can petition the court for a full restoration of his or her license. It is up to the court's discretion whether or not to reinstate your driving privileges.
Vehicle Consequences
If the third DWI is within five years of the prior two DWIs, the car driven may be seized and forfeited. In other words, the government may take possession of the vehicle, and keep it. In some cases, the family may be able to regain possession of the vehicle. A petition must be filed with the court. The petitioner must establish the family only has one vehicle and that the family would suffer a substantial hardship if the government kept the car.
Possible Defenses to Third DWI Charges in Virginia
Every case is different. However, there are a number of different ways DWI charges can be challenged.
Challenging the Stop of the Car
The first potential area for a challenge is the stop of the car. Police generally must have a basis to stop a car. If there is no legally supportable basis for the stop, any subsequent evidence of criminal activity may be suppressed. Additionally, even if a car is stopped legally if the stop expands beyond the initial basis for the stop, this can be challenged. This may similarly lead to the suppression of evidence.
Challenging the Collection of Evidence
Regardless of whether the proof of alcohol concentration is from breath or blood, the collection of the evidence can be challenged. There is a process that law enforcement must follow before taking a breath sample from someone suspected of DWI. This process includes (but is not limited to) waiting for a certain period of time and watching the person to make certain he or she does not belch, which can unfairly impact test results. Similarly, if an alcohol wipe is used to sterilize the skin prior to a blood draw, this may impact the test results.
Challenging the Test Results
Blood, breath, and urine testing rely on instruments that measure blood alcohol concentrations. When these instruments are not properly maintained, they may not produce reliable test results. Additionally, these instruments must be calibrated on a regular schedule. Failure to do so may also impact test results. There are other issues that are also subject to challenge in the right case.
Facing Third DWI Charges in Loudoun County VA?
If you are facing DWI charges, contact the Law Office of Charles F. Koehler, P.C. DWI attorney Charles Koehler focuses on personalized and comprehensive representation. Facing DWI charges isn't easy. You shouldn't have to do it alone. Contact Charles Koehler at 703-669-5644 for a free consultation.