Your Frequently Asked Virginia DUI Questions and Answers

Facing impaired driving charges can leave you with many unanswered questions and pressing worries. These concerns are natural, and our Fairfax DUI lawyers are here to offer the answers and share the information you need now. Find out what to expect from the legal process, how the consequences could affect your life, what your legal options may be, and how you may be able to retain your driving privileges. 

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  • What can happen if you have a child in your car and are arrested for DUI?

    In some situations, you can face additional charges or have the penalties enhanced if you are pulled over and arrested for DUI in Virginia. One such circumstance is if you have a child under 17 years old in your vehicle when charged with DUI. If convicted, your sentence will include serious mandatory penalties.

    What Are the Punishments for Transporting a Child While Intoxicated?

    Young Child Sitting in the Backseat of a Car

    Driving when intoxicated with a child under 17 years old is considered a form of child endangerment in Virginia. Under Virginia’s DUI Child Endangerment Law, which is Virginia Code § 18.2-270(D), there are mandatory punishments in addition to those for DUI. For a first offense conviction, the sentence will include:

    • A minimum fine of $500 up to a maximum of $1,000
       
    • Mandatory minimum jail sentence of five days

    Under this law, mandatory minimum sentences are cumulative, and any mandatory minimum jail sentences must be served consecutively. If your DUI resulted in an injury to a child, you may face more serious charges and penalties.

    Being convicted of DUI while transporting a child can result in other long-term consequences in your life. For example, your custody and visitation rights may be limited or lost.

    Contact Our Skilled Lawyers If You Have Been Arrested for DUI

    Have you been charged with DUI child endangerment or another DUI offense in Fairfax or Northern Virginia? It is important to keep in mind that you may have strong defenses to the charges that can result in them being dismissed or reduced to a less serious offense even if you are guilty.

    The experienced DUI lawyers at Greenspun Shapiro PC can identify your strongest defenses and create a strategy to help you achieve the best possible outcome given your situation. To learn more about how we can assist you, call our Fairfax office to schedule a free consultation today.

     

  • If I refuse to take a breathalyzer test in Virginia, will I be convicted of DUI?

    Police Officer Holding a Breathalyzer in His HandIf you are stopped by the police for a possible DUI, the officer will most likely ask you to take a breathalyzer test on the street to measure the blood alcohol content ("BAC") on your breath. This test is done on a small hand-held device and is known as the preliminary breath test ("PBT"). A test on a larger device will then be administered when you get to the police station to measure your BAC again. Although it is not illegal to decline the PBT on the street, there may be additional consequences for refusing to take the test at the police station, in addition to those consequences you'll face for a DUI conviction. 

    Consequences of Refusing a Preliminary Breath Test Before a DUI Arrest

    In Virginia, you are not required to take a PBT on the street before you are arrested for DUI. The test is voluntary and would be used by the officer in a similar fashion as a field sobriety test to establish probable cause to arrest you for DUI.

    If you refuse the test and are later arrested for DUI, your pre-arrest refusal to take the breathalyzer test cannot be used against you. However, the police can still arrest you for DUI if he has other reasons to believe that you are intoxicated.

    Penalties for Refusing to Take a Breathalyzer Test Under Virginia’s Implied Consent Law

    Virginia Code § 18.2-268.2 is Virginia’s Implied Consent Law, and it provides that you impliedly consent to a breathalyzer test, blood test, or both if you are operating a motor vehicle and are arrested for DUI. This is in reference to the breathalyzer test at the police station. When you are arrested for DUI, the officer must explain the requirement to submit to a test under this law and the punishments for refusing to take it.

    A first offense refusal to submit to a breathalyzer or blood test is a civil offense under Virginia Code § 18.2-268.3. You would face these penalties under the Implied Consent Law:

    • First offense. Your driver’s license would be automatically suspended for one year and there would be no possibility of a restricted license. This is in addition to any suspension if you are also convicted of DUI.
       
    • Subsequent offenses. A second or third violation of the Implied Consent Law would be charged as a Class 1 misdemeanor. Your driver’s license would be suspended for three years, and you may face a jail sentence and a large fine.

    In addition, you can still be convicted of DUI without the results of the breathalyzer or blood test. 

    If you have been arrested for DUI in Northern Virginia or Fairfax, our experienced DUI attorneys can help you build a strong defense—even if you refused to take a required breathalyzer or blood test. To learn more about your defenses and what you can realistically expect to happen in your criminal case, start a live chat to schedule a free initial consultation.

     

  • Do I have to install an ignition interlock device if convicted of a DUI in Virginia?

    Car Keys and a Glass of Alcohol With a Wooden GavelOne of the many harsh penalties you face if convicted of DUI in Virginia is that you will be required to install an ignition interlock device on your vehicle in order to obtain restricted driving privileges. This is true even if this is your first DUI conviction. You are not permitted to drive at all until you have the device installed on your vehicle. The judge sentencing you will determine how long you must have this device on your vehicle, but it will be for at least six months.

    What Is an Ignition Interlock Device?

    An ignition interlock device is a type of breathalyzer that connects to your car’s ignition. You are required to breathe into the device before starting the engine, and if your blood alcohol content (BAC) is over 0.02 percent, the device will prevent your vehicle from starting. You must also submit to rolling tests, which are retests approximately every 20 to 30 minutes of driving. If you fail a retest, an alarm sounds, lights flash, and you will be unable to continue driving.

    The ignition interlock will also come with an electronic logging device. The electronic log keeps a record of your BAC during attempted starts of your vehicle and rolling tests. It also documents any attempt to circumvent or tamper with the device. The log will be monitored by Virginia Alcohol Safety Action Program (VASAP).

    Who Pays for an Ignition Interlock Device?

    You must use a court-approved company to install and maintain the device. You are required to pay for its installation and a monthly maintenance fee. Currently, these companies are not charging to install the device, and the monthly maintenance fee is approximately $75 to $80.

    Tampering With an Ignition Interlock Device

    Under Virginia Code § 18.2-270.1, it is also a crime to tamper with or attempt to circumvent an ignition interlock device. This can include a variety of things, including allowing someone else to give a breath sample, blocking the camera, or breathing through another device. This offense is a Class 1 misdemeanor.

    If you have been charged with DUI in Fairfax or Northern Virginia, or have questions about your obligations to install an ignition interlock device, our experienced DUI attorneys are here to help. Call our office or start an online chat to schedule your free consultation today.

     

  • What happens to a non-resident who gets charged with DUI in Virginia?

    Out-of-State Driver Being Charged With Virginia DUIBeing charged with DUI can be even more stressful if you are an out-of-state resident traveling in Virginia on vacation, on your way to work, or for business. Unfortunately, this is common because of the proximity of Maryland and Washington D.C. to our state and Virginia’s aggressive prosecution of DUI. If you are a resident of another state and have been charged with DUI in Fairfax or Northern Virginia, you need to retain an experienced local DUI attorney as soon as possible.

    Consequences of DUI Charges in Fairfax for Out-of-State Residents

    Under Virginia Code § 18.2-266, you may be charged with DUI if you have a blood alcohol content of 0.08 percent or higher or you are under the influence of alcohol. As a non-resident, you will still be required to attend any scheduled court hearings in Virginia. Your lawyer may be able to attend some of them on your behalf depending on the court and the type of hearing. DUI is a Class 1 misdemeanor, and you can face these penalties if convicted of a first offense:

    • You may be sentenced to up to 12 months in jail, but this may be suspended by the judge if you satisfy other conditions of your sentence. If your BAC was between 0.15 and 0.19 percent, there is a mandatory jail sentence of five days. This mandatory jail sentence would increase to 10 days if your BAC was 0.20 percent or higher.
       
    • You may be ordered to pay a fine of between $250 and $2,500.
       
    • You must complete the Virginia Alcohol Safety Action Program (VASAP) and may be sentenced to up to one-year probation.
       
    • Your driver’s license would be suspended for one year, but you may be able to obtain a restricted license allowing you to drive for certain approved purposes. In addition, you would be required to install an ignition interlock device on your vehicle in order to drive, even on a limited basis.
       
    • You would have a permanent criminal record.

    How a DUI Conviction Will Affect Your Driver’s License in Your Home State

    Almost all states are part of the Driver License Compact (DLC), which is an information sharing agreement to notify each other of traffic offenses and driver’s license suspensions or revocation. As a result, you may face the same loss of your driving privileges in your home state.

    Are you an out-of-state resident who has been charged with DUI in Virginia? Our experienced DUI attorneys have helped many non-residents facing these charges. To learn how we can assist you, call our Fairfax office to schedule a free consultation today.

     

  • Does Virginia have an open container law?

    Virginia's Open Container Laws Unlike many other states, Virginia does not have a law that expressly prohibits passengers in a vehicle from having an open container of alcohol. However, if an open container is found in your vehicle and you are driving, you may face severe consequences under Virginia’s open container law.

    Virginia’s Open Container Law

    Virginia’s open container law applies to the driver of the vehicle and not the passengers. Under Virginia Code § 18.2-323.1, it is illegal to consume alcohol while driving a motor vehicle. There is a rebuttable presumption that the driver was consuming alcohol if there is an open container in his automobile. An open container is defined as one without the original factory seal. The presumption arises if these three conditions are met:

    • An open container is located in the passenger area.
       
    • At least some of the alcohol in the container has been removed.
       
    • The driver’s speech, other physical characteristics, appearance, conduct, or odor of alcohol can be reasonably associated with the consumption of alcohol by him.

    The passenger area of the vehicle is broadly defined to include the following:

    • Area where the driver sits in a vehicle
       
    • Any area within reach of the driver, including an unlocked glove compartment
       
    • Areas designed for passengers to sit in

    However, it does not include a motor vehicle’s trunk or the area behind the last upright seat in a van, station wagon, or SUV.

    Although Virginia's open container law applies specifically to drivers and not passengers, allowing any passenger to consume alcohol or carry an open container of alcohol significantly raises your risk of facing an open container charge. The safest way to reduce your risk of facing this charge is to simply never have an open container in the passenger area of your car while driving.

    Penalties Under Virginia’s Open Container Law

    Violation of the open container law is a Class 4 misdemeanor offense. If convicted, you may face a $250 fine but will not be sentenced to jail. In addition, you may also face a separate DUI charge if there is evidence of driving under the influence of alcohol or drugs, or while intoxicated.

    Even though the fine upon conviction is relatively small, it would be a mistake to just plead guilty if charged with this offense. Doing so would result in a permanent criminal record that may affect many areas of your life, such as your career, immigration status, security clearance, and ability to obtain a loan. You need the assistance of an experienced DUI attorney in Fairfax to build a strong defense so that the charges are dismissed or reduced to a less serious offense. To learn how our skilled lawyers can help, call our office or start an online chat to schedule a free consultation.

     

  • What are Your Rights If You’re Pulled Over After Drinking?

    If you’re being pulled over and you’ve been drinking, you need to know what your rights are.  If you don’t know your rights, you may unwittingly harm yourself more than you realize. Read on to find out what you can and cannot do when interacting with the police after being pulled over.

    How to Respond When You're Pulled Over

    Man being pulled over by Virginia police after drinking

    First, after you’re pulled over, the officer will approach your car, ask you to roll down your window, and request to see your license.  Virginia law requires all individuals, whether they are driving or not, to accurately identify themselves to police. Failure to do so is a crime under Code § 19.2-82.1 (Giving false identity to law-enforcement officer).  While this law does not require you to hand over your driver’s license, failure to do that may lead to a charge of driving without a license, which can be a class 1 or 2 misdemeanor (Code § 46.2-300).  So, it’s best to be honest and upfront about your identity and give the police your driver’s license after being pulled over.

    During this first portion of the encounter, an officer may ask you seemingly innocent sounding questions.  Officers who suspect someone of drinking and driving will ask where that person is coming from, who they were with, what they were doing, where they are headed to now, and any other questions they feel appropriate.  You are NOT obligated to answer a single question posed by the officer. You may respond by telling the officer that you do not wish to talk about anything and that you wish to remain silent. That is your right under the United States Constitution.  However, do not lie to the officer, because then you could expose yourself to an Obstruction of Justice charge (Code § 18.2-460) and the Constitution does not give you the right to lie when you are faced with an arrest.

    Field Sobriety Tests

    If police suspect that you have been drinking, either while driving or beforehand, they may next ask you to step out of the vehicle.  Police are permitted to ask you to step out of your vehicle, and if you fail to comply, they can force you out. So again, best practice here is to exit the vehicle.  But, before doing so, you can also ask whether you are being told to get out or asked to get out. If the officer tells you it is a request and not a command, you can respond by saying you do not wish to exit the vehicle.  Once they command you to get out, you should follow their order. Otherwise, you may find yourself being dragged out of your car.

    Once out of the vehicle, the officer will either ask you to go somewhere or guide you to a specific place.  Again, if asked to do something, you can respond by saying you do not wish to do that or by clarifying whether you are being asked or told to do it.  If they command you to move to a location, do as they ask.

    Once the police determine you are in a safe location, they typically will ask you to do field sobriety tests (FSTs) or question you, if they have not done so already or wish to ask more questions.  If you have told the officer that you do not wish to answer any questions, make sure you tell them that again. As for FSTs, most people believe they are required to do them. That is simply not the case.  You can decline to do FSTs. Additionally, the police cannot command you to do FSTs.

    Even if you decline to do FSTs, the police may still ask you to do a preliminary breath test (PBT).  The PBT is a little machine that officers carry with them and measures a person’s blood alcohol content (BAC).  These machines can be inaccurate, and a driver is NOT required to take the PBT. Police also cannot command you to take the PBT, so if you decline to do so, they have no other option at that point but to either arrest you or let you go.

    What to Expect If You Are Arrested for DUI

    If you are arrested, you will be brought to the police station and subjected to a breathalyzer test at the jail.  You are REQUIRED to take this test.  If you decline to take the test, you will be charged with Refusal, which can be a civil penalty or criminal charge, depending on the circumstances.  Thus, you must take the breathalyzer test when told to do so by the police. Alternatively, if you are unable to take the breathalyzer test, either because you are unconscious or have weak lung capacity, the police can seek a warrant to draw your blood and obtain your BAC that way.  Refusing this test can also lead to a Refusal charge.

    What you do during each of the above steps determines the strength of the case the police have against you.  Even if you decline to do all the tests and say nothing, there still may be sufficient evidence to prove your guilt.  Alternatively, even if you do all the tests and make statements, there may be insufficient evidence to prove you’re guilty.  

    You will need an experienced DUI attorney who knows the procedure for alcohol-related prosecutions to come up with the best strategy for your case, and we can help you do that.  Call us today if you are facing an alcohol-related charge to find out what defenses you may have.

  • What Are DUI Maiming Charges?

    Woman facing DUI maiming charges after DUI car accident in Fairfax, VA

    As many people quickly find out, Virginia’s DUI laws are strict and harsh.  Virginia also has a specific and separate charge when someone is driving under the influence of alcohol and consequently causes an accident with injuries.  This charge is called “DUI maiming” and can be found in Virginia Code § 18.2-51.4.  Unlike a standard DUI charge under Virginia Code § 18.2-266, which is a misdemeanor, this charge is a felony offense.  Therefore, it is much more serious and the consequences may be worse.

    DUI Maiming Statute in Virginia

    Specifically, the code states that, “any person who, as a result of driving while intoxicated in violation of § 18.2-266 or any local ordinance substantially similar thereto in a manner so gross, wanton and culpable as to show a reckless disregard for human life, unintentionally causes the serious bodily injury of another person resulting in permanent and significant physical impairment shall be guilty of a Class 6 felony” (emphasis added).

    Penalties For DUI Maiming in Virginia

    A class 6 felony can carry punishments of one to five years in prison and up to $2500 in fines.  There is also a mandatory license suspension, requirements for completion of an alcohol/substance abuse program, and the required installation of an ignition interlock if a restricted license is granted.

    Similar to a DUI, there are a variety of elements that the prosecutor must prove to obtain a conviction, especially since it is a car accident case.  If you have been charged with DUI maiming, it is important that you contact the experienced DUI lawyers at Greenspun Shapiro PC immediately so that we can walk you through your defenses and make sure you receive the best representation possible.

  • What is a wet reckless charge in a Fairfax DUI case?

    What You Need to Know About a Wet Reckless Charge in VirginiaWhen you are charged with a first offense of driving under the influence (DUI) in Virginia, you are facing a possible misdemeanor conviction that could carry sentence of jail time, fines, court costs, and loss of your privilege to drive. In addition, a DUI conviction would leave you with a permanent criminal record. However, you may be able to avoid some of the harsh consequences of a first DUI by entering into a "wet reckless" plea.

    What Is Wet Reckless in Virginia?

    Wet reckless is a term that refers to a reckless driving charge where alcohol is involved. There is no statutory offense in Virginia called “wet reckless.” However, under Virginia Code § 46.2-392, if a judge believes the reckless driving is alcohol-related, a person who is convicted of reckless driving may be required to enter and successfully complete the Virginia Alcohol Safety Action Program (VASAP). Here are some important things you need to know about a wet reckless plea:

    • There are no laws that require the government to offer you a wet reckless. It is solely within the discretion of the prosecutor handling the case. That means there are no guarantees that someone can get a wet reckless, regardless of how good their driving record is, how nice they were to the officer, or anything else.
    • Not all jurisdictions will permit a wet reckless plea. In fact, many jurisdictions have moved away from this practice.
    • A wet reckless outcome is usually reserved for first time offenders who were close to the blood alcohol content (BAC) legal limit. In Virginia, a BAC of .08 or greater creates a permissive inference that the accused was intoxicated at the time of operating the vehicle. If someone is at or below a .08, there is a greater likelihood that a wet reckless plea could be offered by the prosecution.
    • You may be required to enter into and successfully complete VASAP. Whether VASAP will be required will depend on the deal struck between you and the prosecution.
    • You will face similar penalties for wet reckless as for DUI. These can include a possible jail sentence, fines, and a suspended driver’s license for up to six months.

    A wet reckless conviction has less of a stigma than a DUI conviction. It also means that enhancements that would otherwise apply if convicted of a DUI, would not apply if only convicted of a wet reckless.

    Were you charged with DUI in Fairfax or the surrounding areas? We’re here to help you build a strong defense and consider all of your options. To learn more about our extensive experience and how we can help, start an online chat to schedule your free initial consultation.

     

  • Can I get a restricted license after being convicted of driving under the influence (DUI) in Virginia?

    Restricted License Requirements After a DUI in VirginiaIf you are convicted of DUI in Virginia, one of the penalties will be the suspension of your driver’s license for one year for a first offense DUI—and longer for a second or subsequent conviction. This can make it extremely challenging to get to your job, take your children to activities, and do everything else that you rely on driving to get to. However, you may be able to obtain a restricted license that gives you limited driving privileges.

    What Is a Restricted License in Virginia?

    A restricted license is a temporary license that permits you to drive to specific locations and at certain times of the day. The judge granting the restricted license will set the specific times and places allowed under the restricted license. Here are some of the circumstances where driving may be permitted:

    • To and from your job
    • To and from school
    • To and from necessary doctor appointments
    • To and from a child’s daycare or necessary doctor appointments
    • To and from court-ordered visitation with your child
    • To and from a religious place of worship

    When Can You Request a Restricted License If You Have Been Convicted of DUI in Fairfax?

    You must file a motion to request a restricted license, and there is no guarantee that the judge will grant your request. It is best to retain an experienced DUI attorney to file the motion on your behalf. In order to obtain a restricted license, you must enroll in the mandatory Virginia Alcohol Safety Action Program (ASAP) and, in some cases, you may be required to successfully complete the program before a restricted license is granted. In addition, you will most likely need to have an ignition interlock system installed on your vehicle.

    If this is your first DUI offense, you can request a restricted license on the date of your conviction or guilty plea, although you will not be able to actually drive on the restricted license until you enroll in ASAP. However, if this is your second DUI conviction within 10 years, you will need to wait four months to receive a restricted license. The wait is one year if you were convicted of a second DUI within the last five years.

    Have you been charged with DUI in the Northern Virginia area? Our experienced DUI attorneys have decades of experience successfully representing our clients in DUI cases in Fairfax and Northern Virginia. We will aggressively fight the charges you face. Start an online chat or call our Fairfax office today to schedule your free consultation.

     

  • What can I expect to happen at my arraignment for DUI in Virginia?

    DUI Arraignments in VirginiaWhen you have been charged with driving under the influence (DUI) or driving while intoxicated (DWI) in Virginia, you need to understand what happens in these criminal cases so that you know what to expect. Your first court hearing is usually an arraignment. Here, we explain what happens at an arraignment.

    What Occurs at DUI Arraignments in Virginia

    An arraignment can be conducted on the day of your arrest or a few days later. If you were released from jail on your own recognizance—your promise to return to all court hearings—or by posting bail, it is more likely that the hearing will be set at a later date. Your arraignment may be conducted by video conferencing if you are still in jail. At the hearing, the judge will do the following:

    • Read the criminal charges to you.
       
    • Ask you if you have retained an attorney and advise you of your right to a court-appointed lawyer if you cannot afford to pay for one. If you are requesting an attorney, the judge will most likely ask you questions about your financial situation before appointing one.
       
    • Advise you of future court dates.
       
    • In some cases where bail has not been set, the judge may set the amount of your bail. However, it is very rare to receive bond at your arraignment hearing. Therefore, it is important to retain an attorney as soon as possible so you receive a bond motion promptly.

    It is best to retain an attorney as soon as possible after your arrest and have him attend the arraignment with you. In some cases, he may be able to file paperwork with the court advising of his representation so that you do not need to attend your arraignment.

    Contact Us for Help

    If you were arrested for DUI or DWI in Northern Virginia, our experienced DUI attorneys are here to build a strong defense to the charges you face so that they are dismissed or reduced to a less serious offense. Call our Fairfax office or fill out our online form to schedule your free consultation today.