Virginia Code sec. 18.2-266 makes it illegal for any person to drive or operate a motor vehicle (1) with a blood alcohol level above .08 as determined by a chemical test administered pursuant to this section, (2) while under the influence of alcohol, (3) while such person is under the influence of any narcotic drug or combination of narcotic drugs to a degree which impairs his ability to drive or operate a motor vehicle safely.

If the person is under the age of 21, then Virginia Code § 18.2-266.1 mandates that it is unlawful for a person to operate any motor vehicle with a blood alcohol level more than .02 but less than .08. A violation of this statute mandates a license suspension of six (6) months and a fine of not more than $500.

A. PENALTIES AND LICENSE SUSPENSION. ASAP is required for a first or second offense, but not for a 3rd. It is more difficult to get your license reinstated after a 3rd offense and requires a petition to the circuit court and a complete evaluation from ASAP.

1. 1st offense – $250-$2500 fine. 12 months in jail and 12 month loss of license. A 1st offense will usually receive a completely suspended sentence, a minimal fine, a 12 month loss of license with a restricted license issued immediately. However, if the BAC is more than .15 there is a mandatory 5 days in jail and if it exceeds .20 then there is a mandatory 10 days in jail. The interlock ignition system is required if the BAC exceeds .15. For offenders convicted of DWI after July 1, 2012, the court will require that an ignition interlock device be installed for a minimum of six months or as long as the court ordered suspension, at the Judge’s discretion. The ignition interlock system is a device that is installed on the offenders vehicle and which will prevent the operation of the vehicle until the offender blows into the device and the machine determines that they are not under the influence of alcohol.

2. 2nd offense within 5 years – $500-$2500 fine. 30 day minimum jail sentence (20 day mandatory minimum) with a max of 1 year, 3 year license suspension. If BAC exceeds .15 an additional 10 days mandatory minimum and if it exceeds .20, an additional 20 days. The period of license suspension is 3 years with a restricted license not permitted for 1 year. Ignition interlock is required. A mandatory minimum jail sentence requires the offender to serve every day of that sentence without being given any good time credits.

3. 2nd offense within 10 years – $500-$2500 fine, 30 day minimum jail sentence (10 day mandatory minimum) with a max of 1 year, 3 year license suspension. If BAC exceeds .15 an additional 10 days mandatory minimum and if it exceeds .20, an additional 20 days. A restricted license may be issued after 4 months of license suspension and then only with the installation of an ignition interlock device.

4. 3rd offense within 5 years. $1000-$2500 fine. This is a Class 6 felony which provides for a sentence of 1-5 years in prison or up to 12 months in jail. A 6 month mandatory minimum jail sentence is required and an indefinite license suspension. A person may petition for a restricted license after 3 years and for full restoration after 5 years but only with the installation of the ignition interlock system.

5. 3rd offense within 10 years. $1000-$2500 fine. Class 6 felony with 1-5 years in prison or up to 12 months in jail. 90 day mandatory minimum, indefinite license suspension. May petition for restricted after 3 years and for full restoration after 5 years and only with ignition interlock.

6. 4th offense or any prior felony dwi conviction.  $1000 – $2500 fine.  Class 6 felony with 1-5 years in prison.  1 year mandatory minimum, indefinite license suspension.  As above, may petition for restricted after 3 years and for full restoration after 5 years and only with ignition interlock.

7. Refusal of blood or breath test – Virginia Code § 18.2-268.3 provides that if
an individual who is arrested for a violation of Virginia Code § 18.2-266 unreasonably refuses to take a blood or breath test as mandated by law, then they shall be guilty of violating this statute. A first violation is a civil offense and requires the court to suspend the person’s driver’s license for a period of 12 months. This suspension is in addition to any license suspension provided for under Virginia Code § 18.2-266. A second offense of refusal within a ten (10) year period constitutes a class 2 misdemeanor and provides for a license suspension of three (3) years. A third violation within a ten (10) year period constitutes a class 1 misdemeanor and provides for a license suspension of three (3) years.
Class 2 misdemeanor – confinement in jail for not more than six (6) months and a fine of $2,500, either or both.
Class 1 misdemeanor – confinement in jail for not more than twelve (12) months and a fine of $2,500, either or both.


I. Reason for the Stop

A. A police officer may conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1 (1968). Reasonable suspicion is a lesser standard of probable cause, but the Commonwealth must show an objective reasonable justification to make the stop. United States v. Sokolow, 490 U.S. 1 (1989). The stop and resulting detention must establish a reasonable suspicion that the driver is unlicensed or the vehicle is unregistered, or that the vehicle or occupant is otherwise subject to seizure for violation of the law. Delaware v. Prouse, 440 U.S. 648 (1979). The standard of review is the totality of the circumstances. Normally the police officer will stop a vehicle for a minor infraction but sometimes because they allege the occupant is weaving and he suspects they may be intoxicated or under the influence.

B. The police officer cannot make a valid arrest of a person for DWI without probable cause. The mere odor of an alcoholic beverage is insufficient to establish intoxication or lack of control. However, this rule does not apply when there is some other indicia that the consumption of alcohol has affected the person’s behavior such as bloodshot eyes, slurred speech, general appearance or behavior. Hemming v. Hutchinson, 221 Va. 1143 (1981); Hoffner v. Kreh, 227 Va. 48 (1984). The standard of proof to make an arrest based on probable cause is an objective standard. Golden v. Commonwealth, 30 Va. App. 618 (1999).

At some point, many encounters transform into an arrest where a reasonable person would not feel free to leave. You may challenge whether at the time the encounter becomes an arrest, there was sufficient probable cause for an arrest. Remember it is not illegal to drink and drive, it is illegal to drive while intoxicated or while your ability to drive is impaired.

Virginia Code § 19.2-81 states that a police officer may only arrest a person for a misdemeanor committed in their presence. There are exceptions when the person suspected is in an accident but not if they receive a report from an eyewitness.


I. Field Sobriety Tests – An individual is not required to take any field sobriety tests and the failure to do so cannot be used against them in court nor does it allow the police officer to make an arrest. Some police officers do not receive extensive training in these tests and a person may be able to challenge what each specific test really establishes in terms of a persons possible intoxication. Most police officers will testify that you failed a particular test because you did not follow their directions exactly as they explained. Some people can do the test in a manner that indicates they are not intoxicated but for simply not following the instructions. For example, on the heel to toe test, a person may walk in a straight line but not touch heel to toe. The office will testify that they failed. Also it is important to note the circumstances under which these test are conducted may be important. The tests are generally conducted on the side of the road when a person is nervous because of police presence and the terrain may not be ideal for the performance of these tests.

A. Horizontal gaze nystagmus test – This is a test where the officer has you look at an object and move your eyes to the right or left and a persons eyes will supposedly react and/or twitch (if you are intoxicated) when your eyes are all the way to the left or right.

B. Walk and turn – a person is asked to walk nine steps out and nine steps back on an imaginary line and touch heel to toe. Some officers instruct a person to make the turn at the end in a certain fashion. If you take too many steps or do not perform the turn properly, the officer will claim you failed.
C. One leg stand – a person is asked to stand on one leg with the other leg six inches off the ground and count to 30. The officer is looking to see if you can maintain your balance without using your arms.

D. Finger count – a person is asked to count from 1 to 4 and then 4 to 1 while touching their thumb to the corresponding finger.

E. Alphabet – a person is asked to say, not sing, the alphabet but they are instructed to start at a certain letter, such as letters C to P. If the person sings or goes past the stated letter they are considered to have failed the test by the police officer.

F. Counting backwards – a person is asked to count backwards and stop at a certain number.

G. PBT test – this is a blood alcohol level test that is given on the side of the road. The results are not admissible into evidence but are merely used to establish probable cause to make the arrest. A person is not required to take this test.


A. Driving or Operation of a motor vehicle – this not only means moving the motor vehicle from one place to another but also includes starting the engine or using the mechanical or electrical equipment on the car which can put the car in motion. Gallagher v. Commonwealth, 205 Va. 666 (1964). A person may be sitting in the vehicle with the ignition key turned on and they are considered to be operating the motor vehicle for the purposes of a DWI conviction.

B. Public highway – there is no requirement that the person be operating a motor vehicle on a public highway. Gray v. Commonwealth, 23 Va. App. 351 (1996). However, the Implied consent law (Virginia Code § 18.2-268.2) only applies if the person was driving on a public highway. If the person charged with DWI was on private property, then there is no requirement that they comply with the implied consent law and they do not have to take the breath test. If the officer advises them of this law and they are under the impression that they have to take the test, the breath test may be suppressed. Roseborough v. Commonwealth, 53 Va. App. 451 (2009).

C. Permissive inference v. mandatory presumption – If the blood alcohol level is introduced into evidence, it is merely a permissive inference as opposed to a rebuttable presumption. To make it a rebuttable presumption would make it a violation of one’s constitutional right to due process because it would impermissibly shift the burden of proof to the defendant. Since it is a permissive inference, a court can find someone not guilty even if the blood alcohol level exceeds .08 if the other indicia of intoxication creates a reasonable doubt that the person was not intoxicated. Yap v. Commonwealth, 49 Va. App. 622 (2007). There is an argument to be made that since the BAC is merely a permissive inference, the Commonwealth would need an expert to testify exactly what a BAC in excess of .08 really means and it should not merely be accepted as proof of intoxication. The breath test operator would most likely not qualify as an expert to testify to this fact.


If the Commonwealth is able to establish that there was probable cause for the arrest, then the breath test certificate may be admissible and you may have to challenge the breath test itself.

A. Virginia Code § 19.2-187.1 was recently passed by the legislature in response to Melendez-Diaz v. Massachusetts. Melendez-Diaz provides that the defense has the right to confront witnesses such as breath test operators and the Commonwealth must produce these witnesses and have them testify in their case-in-chief. The change in Virginia Code § 19.2-187.1 provides that the Commonwealth must provide notice to the defense and send the certificate of analysis to the defense 28 days prior to the trial. The defense then has 14 days to object to the admissibility of that certificate of analysis. If the defense fails to object, the admissibility of the certificate of analysis is waived. The statute provides for liberal continuances if notice is not provided or if an objection is raised and the witness is not available for trial. The Commonwealth can get a continuance of up to 180 days if the accused is not in jail and 90 days if they are incarcerated.

B. Intoximeter EC/IR II – this is the new machine and takes the place of the Intoxilyzer 5000. The Manual for the new intoxilyzer is on the Dept. of forensic sciences website and is available for anyone to review. An expert witness may be necessary to challenge the accuracy of the Intoximeter EC/IR II machine.

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