A man who is driving while drinking alcohol in Fairfax.

A conviction for driving under the influence can change the course of your whole life. While DUI convictions can carry jail time, often the most concerning aspect of a conviction is the collateral consequences. Depending on the situation, you could lose your license, be required to install an ignition interlock device, report to a probation officer, and pay astronomical fines. At the Law Offices of Michael A. Pignone, our Fairfax DUI defense attorney represents clients facing all types of DUI charges. We have extensive experience handling these complex cases and know what it takes to beat the charges you face.  

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Is There a Difference Between a Virginia DUI and DWI?

When it comes to drunk driving charges, people often use the terms DUI and DWI interchangeably. In some states, these two terms actually refer to different crimes. But that is not the case in Virginia where a DUI and DWI both refer to the same underlying offense. Virginia Code § 18.2-266 outlines the state’s DUI laws. The text of the statute refers to both “driving under the influence” and “driving while intoxicated” interchangeably. The penalties for the sections referring to DUI and DWI are also identical.

However, some Fairfax DUI defense attorneys draw a distinction between DUI offenses and DWI offenses based on how the prosecution attempts to prove a driver’s alleged intoxication.

When police officers pull you over and suspect you are under the influence, they almost always request that you take a chemical test. The initial test may be a preliminary breath test conducted on the side of the road. But if the test shows the presence of alcohol, officers typically order a more precise breath or blood test.

Assuming the officers followed the rules, the results of these tests are admissible in trial. Some Fairfax DUI defense attorneys refer to these cases as DWI cases. On the other hand, if you refused a chemical test or the government does not have test results for whatever reason, the government will have no direct evidence of your intoxication. These cases are known as “driving under the influence” cases.

While this is really a distinction without much of a difference, it does help illuminate the two ways that the government can bring drunk driving charges.

Defenses to Fairfax DUI Cases

After a Fairfax DUI arrest, it is natural to feel hopeless. After all, police pulled you over, asked you to take a breath test, and you failed. However, DUI cases are not that simple. Depending on the specific facts surrounding your arrest, you may have one or more defenses.

No Unsafe Driving

In some DUI cases, the government does not need to prove that you were actually impaired. However, this is only when the government has direct evidence that you were intoxicated, such as blood test results. If there are no chemical test results available, the government can still bring a case against you. But under those circumstances, the State has the burden of proving that you were not able to safely operate a motor vehicle at the time you were stopped.

No Operation

A judge or jury cannot convict you for a DUI offense unless you were “driving” a vehicle. The government doesn’t necessarily need to show that the car was moving, but it must present evidence that you had the ability to control the vehicle. So, for example, if you were in the driver’s seat but the keys were in the trunk, you may have an argument that you were not “driving.”

Motions to Suppress

Perhaps the most common (and successful) defense to Fairfax DUI charges involves challenging the government’s evidence. Police officers must respect your constitutional rights when investigating a DUI. This means that they must have probable cause or reasonable suspicion of a crime before pulling you over and asking you to take a chemical test. If police officers act on a hunch and can’t point to any evidence suggesting you were intoxicated, the test results may be inadmissible. Motions to suppress can also keep out statements you made to police officers or detectives without being advised of your rights.

Penalties for First-Time DUI Offense in Virginia

Perhaps the most frightening aspect of facing criminal charges is the possibility of going to jail. Nearly every criminal charge in the Commonwealth of Virginia carries a potential jail sentence. Like Virginia’s DUI statute, some statutes include minimum sentences, even for a first offense. 

Other consequences associated with a DUI conviction increase the overall penalty, making a DUI conviction one of the most expensive and intrusive criminal punishments for a first offense. Before you panic, you should talk with an experienced Fairfax DUI attorney about your case to learn if the following possible penalties apply to you. 

The penalties for a first-time DUI in Virginia are:

  • Minimum $250 fine, up to a maximum of $1,000;
  • Up to one year in jail;
  • Probation;
  • Mandatory attendance at the Virginia Alcohol Safety Action Program (VASAP);
  • Driver’s license suspension; and
  • Ignition interlocking device installed on your vehicle.

You also face minimum jail time depending on your chemical test. You must serve an additional five days in jail if your blood alcohol concentration (BAC) is between 0.15% and 0.20%. The minimum additional jail time would increase to 10 days if your BAC was over 0.20%. 

Ignition Interlock Device in Virginia Law

An ignition interlock ignition device (IID) is a device installed in your vehicle that requires the driver to submit to a BAC test before starting your vehicle. Ignition interlock devices will prevent the car from starting if the driver’s BAC registers above 0.02.

The device logs and registers the results of each test and will also perform “rolling tests” at random while the vehicle is operated. The vehicle’s horn and lights will turn on should the driver register above 0.02 BAC at any time while driving. 

While it is true that an IID is a DUI penalty, it may be a valuable asset. You may be thinking, Why is that? The answer is that agreeing to the installation of an IID may allow you the privilege of a restricted license. A restricted license will allow you to drive under certain circumstances during the revocation period (e.g., to work or school).

In Virginia, beginning on July 1, 2020, certain DUI offenders can now obtain a restricted driver’s license by agreeing to install an IID on their vehicle for at least 12 months. 

However, this incentive is not available automatically, and you must qualify by demonstrating: 

  • It is your first DUI conviction,
  • Your BAC was less than 0.15, and
  • You are a legal adult at the time of sentencing (not necessarily at the time of the offense).

If you are uncertain if you might qualify for a restricted license or IID, call the Law Offices of Michael A. Pignone. Our knowledgeable Fairfax DUI defense attorney will discuss your eligibility at length.

Alcohol Safety Action Program (ASAP)

In Virginia, any person convicted of a first or second DUI is required to complete the Virginia ASAP program as a condition of receiving probation (or a suspended jail sentence) and obtaining a restricted driver’s license. Enrolling in this program is key to obtaining a limited license, which is necessary before you can get an IID installed. 

Participating in the ASAP program and agreeing to an IID will allow you to regain partial driving privileges.

What Happens If You Refuse a Test in VA?

If you refuse to submit to a breathalyzer or blood test, you face an additional charge of DUI. Virginia law states that if you refuse to submit to either test, you will be charged with “refusal.” These penalties are in addition to any others imposed for a DUI conviction. Generally, it will increase the length of your license suspension and the amount of your fine. A refusal charge will also make you ineligible for a restricted license.

Underage DUI Implications

In Virginia, as in most states, underage drinking is taken seriously. Underage drinking and driving are taken even more seriously. If you are under 21 and arrested for DUI, you will be treated just as harshly as an of-age adult. However, instead of a 0.08 blood alcohol content, you will be charged even if your BAC is 0.02 or above. Individuals under 21 cannot legally purchase, possess, or consume alcohol, let alone drive under the influence. 

Often, many underage DUI offenders attend college or university. In addition to the standard DUI penalties, it is essential to know that the school may have policies and procedures for students arrested or convicted of DUI. 

If you are under 21 and arrested for DUI, you must speak with an experienced Fairfax DUI defense lawyer. 

Increased Penalties for Multiple DUI Offenses

First and second offense DUI charges are Class 1 misdemeanors. The penalties sharply increase if you have two prior DUI convictions. You should be aware that DUI convictions from other states can count against you. However, the conviction will only count in Virginia if Virginia’s DUI law and the DUI law of the state where you received a conviction are substantially similar. 

The penalties for multiple DUI convictions depend on how many years have passed since your previous conviction. For example, if your first conviction happened within five years of your second DUI charge, then the penalty includes a $500 fine and between 30 days and one year in jail. However, you must serve at least 20 days in jail as a minimum mandatory sentence. 

The minimum mandatory sentence would decrease to 10 days if your last conviction occurred 5 – 10 years earlier. The minimum fine remains at $500. 

Our Fairfax DUI defense lawyer will explain what could happen if you have a prior conviction within the last 10 years and took a chemical test. You must serve an additional 10 days in jail if your BAC reading was 0.15% to 0.20%. Your minimum jail term would increase to 20 days if your BAC test result exceeded 0.20%. Remember that these jail sentences are in addition to any jail sentence you have to serve because of a prior conviction.

Felony DUI in Virginia

A third DUI conviction within 10 years is a Class 6 felony. A knowledgeable Fairfax DUI attorney will explain that you face up to five years in prison if convicted of a third DUI within 10 years. Virginia law requires a person convicted of felony DUI to serve at least 90 days in jail. However, your jail sentence must be at least six months if your last conviction was less than five years ago. The minimum fine increases to $1,000 as well.

A fourth or subsequent conviction within 10 years carries a five-year maximum prison sentence with a one-year minimum mandatory term in prison. There is also a fine of $1,000. 

You should also know that a felony DUI conviction allows the prosecutor to file a case in court to forfeit your primary vehicle to the government. 

As you can see, these penalties are severe. Having a skilled Fairfax criminal defense attorney plan your defense can help reduce a DUI charge’s impact on your life. 

Fatal DUI

Without a doubt, the most serious DUI is one that results in a fatality. If you kill someone while driving under the influence, you may be charged with involuntary manslaughter. 

Specifically, the Virginia code states that any person who, as a result of driving under the influence and unintentionally causing the death of another person, shall be guilty of involuntary manslaughter. If convicted, you could face one to 10 years in prison.

If the defendant’s DUI conduct is particularly egregious, the charge can be elevated to aggravated involuntary manslaughter. You could be sentenced to up to 20 years in prison if convicted.

Fatal DUI goes far beyond just a license suspension. It is critical to have not only an experienced DUI attorney on your side but one that also has experience in manslaughter defense. Our Fairfax DUI defense lawyer has just that. Don’t wait, call us today. 

 Why Do I Need a Lawyer for My DUI Charge?

Some people do not think they need to have a criminal defense lawyer review their case before going to court, especially when it’s their first offense. If you think you can mount your criminal defense without consulting a skilled Fairfax DUI lawyer, you might be making a costly mistake.

Only an experienced DUI defense lawyer knows the ins and outs of DUI laws in Virginia, and only they can come up with your best defense strategy. The help of a qualified criminal defense attorney will give you the best chance of minimizing the impact DUI charges could have on your life. 

Contact a Dedicated Fairfax DUI Defense Attorney for Immediate Assistance

If you face DUI charges, it is imperative that you take the case seriously. Not only that, but you need a lawyer who will take your case as seriously as you do. At the Law Offices of Michael A. Pignone, we help good people get out of bad situations. We command an in-depth understanding of Virginia DUI laws and use this knowledge to help our clients get out from under the charges they face. Our Virginia criminal defense attorneys routinely handle other criminal cases throughout Fairfax, including drug crimes and traffic violations. Our legal practitioner also handles reckless driving cases.

Our experienced lawyer also handles other types of criminal defense cases, including:

To learn more, and to schedule, a free consultation with a Fairfax DUI defense lawyer at the Law Offices of Michael A. Pignone, call us. You can also reach us through our online contact form.