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 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.

     

  • 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.

     

  • Is there a difference between DUI and DWI in Virginia?

    The Differences Between DUI and DWI Charges

    In some states, driving under the influence (DUI) and driving while intoxicated (DWI) are two separate offenses, with one being less serious than the other. In addition, many people use the terms DUI and DWI interchangeably when talking about drunk driving charges. However, you should know that in Virginia, there is no difference between the two.

    The confusion between the terms DUI and DWI may stem from the text of the statute itself. Virginia Code § 18.2-266 contains a reference to driving while intoxicated as well as a reference to being under the influence of alcohol. But no matter what you call it—DUI or DWI—it is the same serious charge that may result in a misdemeanor conviction and a permanent criminal record.

    Virginia Intoxication Law Addresses Both Drugs and Alcohol

    Virginia state law prohibits a driver from operating any type of motor vehicle—even a train—while under the influence of a substance that alters their ability to operate the vehicle safely. This substance could be alcohol, which is very common, but it could also be street drugs or even drugs that were prescribed by a doctor.

    When it comes to drinking and driving in the Commonwealth of Virginia, a driver is considered legally DUI if their blood alcohol concentration (BAC) is .08 percent or higher. However, they can still be charged with DUI—even when their BAC is lower than .08 percent—if their ability to drive has been affected by alcohol. And if their capacity to safely operate a motor vehicle has been compromised due to drug use, they may face the same charges as they would for driving under the influence of alcohol—a jail sentence of up to 12 months and a fine between $250 and $2,500.

    Contact Our Experienced Attorneys for Help With Your Drunk Driving Charge

    Were you arrested for DUI in Virginia? Our experienced drunk driving attorneys have years of experience successfully helping other clients face these charges. To learn what to expect in your criminal case and how we can help, call our office or start an online chat today. The initial consultation is free, so you have nothing to lose.

     

  • What is underage DUI in Virginia and what penalties might I face if convicted?

    Undersage DUI Charges in VirginiaThere is no tolerance for driving while intoxicated (DWI) or driving under the influence (DUI) of alcohol in Virginia. The laws against DWI or DUI are especially strict if the driver is under 21 years old. If you have been charged with underage DWI or DUI in Virginia, you may face a harsh sentence and long-term consequences—including a permanent criminal record.

    What Is Underage DUI?

    In Virginia, the legal drinking age is 21 years old and consuming alcohol when under the legal age is considered illegal unless on private property with the permission of a legal guardian. It is never legal to consume alcohol and drive. Under Virginia Code § 18.2-266.1, a person under 21 years old can be convicted of underage DUI if he did either of the following:

    • Consumed alcohol and operated a motor vehicle, or
    • Had a blood alcohol content (BAC) of more than 0.02 percent and operated a motor vehicle

    As with an adult being charged with DUI, a minor charged with underage DUI is required to submit to a breath or blood test under Virginia’s implied consent laws.

    Penalties for Underage DUI

    Underage DUI is a Class 1 misdemeanor, and a conviction will result in a minor having a permanent criminal record. If convicted, he may be sentenced as follows:

    • Fines of up to $2,500
       
    • Community service—up to 50 hours
       
    • Jail sentence of up to one year
       
    • Driver’s license suspension of up to one year
       
    • Court-ordered substance abuse counseling

    In addition, six demerit points will be added to the minor’s Virginia driving record, which most likely will also result in an increase in his automobile insurance rates. In some cases, the person may be able to petition the court for a restricted driver’s license.

    Have you been charged with underage DUI? You may have defenses to the charges that you face—even if you know that you are guilty of underage drinking. Our experienced Fairfax DUI lawyers are here to aggressively fight on your behalf so that the charges are dropped or reduced to a less serious offense. To learn more, call our office or fill out our online form to schedule a free case evaluation.

     

  • How can social media posts affect my DUI criminal case?

    Social Media Can Play a Big Role in Your Criminal CaseOdds are that you likely use social media sites, such as Facebook and Twitter, to stay in contact with friends and family and to share fun activities and experiences with your social network. While this may be harmless in general, posts about social events where you are consuming alcohol or about your arrest for driving under the influence (DUI) can be harmful to your criminal case. It is important that you understand how prior social media posts can help the police build a case against you, and why it is important to avoid posting anything in the future that may make your situation worse. As a general rule, you should never post anything on social media about any pending criminal case you are facing without first consulting with an experienced criminal defense attorney. Whatever you post online is not private or confidential, and it may be used by law enforcement if they find it. 

    How Social Media Posts Can Harm You If You Face DUI Charges

    It is not only your own posts but also the posts about you or where you are tagged by family or friends that can cause problems when you are charged with DUI, as well as other offenses. Here are some of the ways that social media posts can be damaging:

    • Not private. The police and prosecutor may search your public social media sites at various times during your criminal case to look for evidence that can help them prove your guilt. Even if you have changed your social media site settings to private, this does not mean that they cannot obtain your social media history. A judge can issue a subpoena that gives them access to this information.
       
    • Deleted posts. Some people charged with DUI attempt to delete prior incriminating posts. However, the police may obtain a subpoena allowing them to recover this information directly from the social media company. In addition, the fact that you deleted the posts may be considered intentional and may result in you receiving a harsher penalty if you are convicted.
       
    • Location information. The police can obtain cell phone data to determine the time and location of calls, texts, and other uses of your cell phone. In addition, when you post on Facebook, the time and location of your post will also be logged. All of this information can be used to create a timeline of where you were before your DUI arrest to help prove that you were consuming alcohol or that you drank more than you claim.

    What happens if you already posted damaging posts on your social media sites? An experienced Fairfax DUI attorney will have strategies to handle problems these posts may pose to your criminal case. To learn about our years of experience helping our clients fight DUI charges and what to expect in your criminal case, fill out our online form to schedule your free, no-obligation consultation.