Virginia DUI/DWI is a class one misdemeanor criminal offense carrying the possibility of jail time.  Virginia DUI and DWI are interchangeable terms in state courts.

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There is a distinction between DWI and DUI if you are charged in a federal court such as the U.S. District Court in Alexandria. Under the Code of Federal Regulations, the body of law under which federal officers usually charge defendants, DUI reflects a blood alcohol content (BAC) between .02 and .08. DWI reflects a BAC of .08 and above. 

There is no distinction between DWI and DUI in state courts of the Commonwealth of Virginia as there is in Maryland and other states. Virginia state courts include the courts of Fairfax county, Arlington county, Prince William county, Loudoun county. 

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Driving under the influence and drunk driving are synonymous terms under Virginia law as set forth in the Code of Virginia:

§ 18.2-266. Driving motor vehicle, engine, etc., while intoxicated, etc.  
It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article, (ii) while such person is under the influence of alcohol, (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, (iv) while such person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, or (v) while such person has a blood concentration of any of the following substances at a level that is equal to or greater than: (a) 0.02 milligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c) 0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood. A charge alleging a violation of this section shall support a conviction under clauses (i), (ii), (iii), (iv), or (v).

For the purposes of this article, the term "motor vehicle" includes mopeds, while operated on the public highways of this Commonwealth.

Section 18.2-266 is termed the "adult DWI" section and it is the section charged for DWIs in Virginia state courts. For persons under the age of 21 charged with DWI, officers charge under a section of the Code termed "baby DWI." As stated below, the sentencing provisions of a baby DWI are very different from an adult DWI.

§ 18.2-266.1. Persons under age twenty-one driving after illegally consuming alcohol; penalty.  

A. It shall be unlawful for any person under the age of 21 to operate any motor vehicle after illegally consuming alcohol. Any such person with a blood alcohol concentration of 0.02 percent or more by weight by volume or 0.02 grams or more per 210 liters of breath but less than 0.08 by weight by volume or less than 0.08 grams per 210 liters of breath as indicated by a chemical test administered as provided in this article shall be in violation of this section.

B. A violation of this section shall be punishable by forfeiture of such person's license to operate a motor vehicle for a period of six months from the date of conviction and by a fine of not more than $500. This suspension period shall be in addition to the suspension period provided under § 46.2-391.2. The penalties and license forfeiture provisions set forth in §§ 16.1-278.9, 18.2-270 and 18.2-271 shall not apply to a violation of this section. Any person convicted of a violation of this section shall be eligible to attend an Alcohol Safety Action Program under the provisions of § 18.2-271.1 and may, in the discretion of the court, be issued a restricted license during the term of license suspension.

C. Notwithstanding §§ 16.1-278.8 and 16.1-278.9, upon adjudicating a juvenile delinquent based upon a violation of this section, the juvenile and domestic relations district court shall order disposition as provided in subsection B.  

The government has the burden of proving its case against a defendant "beyond a reasonable doubt." This is the same standard applicable to criminal prosecutions. In the drunk driving context, the government proves its case against a defendant by introducing the driver's (1) Driving Behavior (2) Appearance and Coordination, and/or (3) Scientific evidence. 

More often than not, the prosecutor will place an emphasis on the BAC certificate (scientific evidence) to secure a conviction. This is because the prosecutor must simply introduce the BAC certificate indicating a BAC of .08 or higher for a presumption of driving under the influence. For this reason, as outlined below, it is important to advance any technical arguments against the BAC certificate (scientific evidence). Technical arguments are not available in all cases, but they are in some.

§ 18.2-268.10. Evidence of violation of § 18.2-266 or § 18.2-266.1.

A. In any trial for a violation of § 18.2-266, 18.2-266.1, or subsection B of § 18.2-272 or a similar ordinance, the admission of the blood or breath test results shall not limit the introduction of any other relevant evidence bearing upon any question at issue before the court, and the court shall, regardless of the result of any blood or breath tests, consider other relevant admissible evidence of the condition of the accused. If the test results indicate the presence of any drug other than alcohol, the test results shall be admissible, except in a prosecution under clause (v) of § 18.2-266, only if other competent evidence has been presented to relate the presence of the drug or drugs to the impairment of the accused's ability to drive or operate any motor vehicle, engine or train safely.

B. The failure of an accused to permit a blood or breath sample to be taken to determine the alcohol or drug content of his blood is not evidence and shall not be subject to comment by the Commonwealth at the trial of the case, except in rebuttal or pursuant to subsection C; nor shall the fact that a blood or breath test had been offered the accused be evidence or the subject of comment by the Commonwealth, except in rebuttal or pursuant to subsection C.

C. Evidence of a finding against the defendant under § 18.2-268.3 for his unreasonable refusal to permit a blood or breath sample to be taken to determine the alcohol or drug content of his blood shall be admissible into evidence, upon the motion of the Commonwealth or the defendant, for the sole purpose of explaining the absence at trial of a chemical test of such sample. When admitted pursuant to this subsection such evidence shall not be considered evidence of the accused's guilt.

D. The court or jury trying the case involving a violation of clause (ii), (iii) or (iv) of § 18.2-266 or § 18.2-266.1, or a similar ordinance shall determine the innocence or guilt of the defendant from all the evidence concerning his condition at the time of the alleged offense.

In introducing evidence of driving behavior, the prosecutor will generally call the police officer to testify about her observations of the driver prior to stopping the vehicle.  Often, police officers will refer to weaving, erratic turning, and excessive speed.  These observations are then argued by the prosecutor as evidence of driving under the influence of alcohol.  

Driving behavior alone; however, is not enough to prove a government's case in chief in the drunk driving context although it is often enough proof of reckless driving. The police officer will often expand her testimony to include observations of the defendant upon the stop.  Blood shot eyes, a strong odor of alcohol, and slurred speech are indicative of intoxication and the prosecution will elicit this evidence from the police officer. 

In addition to appearance, the police officer will also testify on the defendant's coordination or lack thereof.  This evidence will often rely on field sobriety tests conducted by the officer at the scene of the arrest. 

Field Sobriety Tests include the following: 

1. Touching the tip of the nose with the forefinger 
2. Walking a straight line, heal-to-toe in one direction, turning around, and walking back in the opposite direction 
3. Standing on one foot
4. Reciting the alphabet 
5. Counting, usually backwards, from one number to another 

The scientific evidence in a drunk driving case is premised on the use of Intoxilyzer Model 5000.  When a person is arrested for suspicion of drunk driving, her breath is used to determine the level of alcohol in her blood.  A defendant with a blood alcohol level of  .08 or more is presumed to be under the influence. This is a rebuttable presumption as noted in the Code section below.

§ 18.2-269. Presumptions from alcohol content of blood. 
A. In any prosecution for a violation of § 18.2-36.1 or clause (ii), (iii) or (iv) of § 18.2-266, or any similar ordinance, the amount of alcohol or drugs in the blood of the accused at the time of the alleged offense as indicated by a chemical analysis of a sample of the accused's blood or breath to determine the alcohol or drug content of his blood in accordance with the provisions of §§ 18.2-268.1 through 18.2-268.12 shall give rise to the following rebuttable presumptions: 

(1) If there was at that time 0.05 percent or less by weight by volume of alcohol in the accused's blood or 0.05 grams or less per 210 liters of the accused's breath, it shall be presumed that the accused was not under the influence of alcohol intoxicants at the time of the alleged offense; 

(2) If there was at that time in excess of 0.05 percent but less than 0.08 percent by weight by volume of alcohol in the accused's blood or 0.05 grams but less than 0.08 grams per 210 liters of the accused's breath, such facts shall not give rise to any presumption that the accused was or was not under the influence of alcohol intoxicants at the time of the alleged offense, but such facts may be considered with other competent evidence in determining the guilt or innocence of the accused; 

(3) If there was at that time 0.08 percent or more by weight by volume of alcohol in the accused's blood or 0.08 grams or more per 210 liters of the accused's breath, it shall be presumed that the accused was under the influence of alcohol intoxicants at the time of the alleged offense; or 

(4) If there was at that time an amount of the following substances at a level that is equal to or greater than: (a) 0.02 milligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c) 0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood, it shall be presumed that the accused was under the influence of drugs at the time of the alleged offense to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely. 

B. The provisions of this section shall not apply to and shall not affect any prosecution for a violation of § 46.2-341.24.  

Because there is a rebuttable presumption that a BAC of .08 or more reflects the defendant was under the influence of alcohol, attorneys must rebut the presumption with credible proof of sobriety. 

Attorneys often rebut the presumption with the use of experts in the field of medicine or toxicology. Attorneys usually use experts in cases where the BAC is low - between .08 and .10. The use of experts for higher BACs is often reserved for cases in which the defendant has a medical condition such as diabetes that sometimes complicates the assessment of driving under the influence of alcohol.

Counsel prior to the hearing date must scrutinize the use of the scientific evidence. As noted below, there are many burdens that must be met for the use of the BAC report against the defendant. Objections to the use of the BAC report must be made during trial. If the objections are not made in a timely fashion, the errors are deemed to have been waived at the trial.

§ 18.2-268.9. Assurance of breath-test validity; use of test results as evidence.  
To be capable of being considered valid as evidence in a prosecution under § 18.2-266, 18.2-266.1, or subsection B of § 18.2-272, or a similar ordinance, chemical analysis of a person's breath shall be performed by an individual possessing a valid license to conduct such tests, with a type of equipment and in accordance with methods approved by the Department. The Department shall test the accuracy of the breath-testing equipment at least once every six months.

The Department shall establish a training program for all individuals who are to administer the breath tests. Upon a person's successful completion of the training program, the Department may license him to conduct breath-test analyses. Such license shall identify the specific types of breath test equipment upon which the individual has successfully completed training. Any individual conducting a breath test under the provisions of § 18.2-268.2 shall issue a certificate which will indicate that the test was conducted in accordance with the Department's specifications, the equipment on which the breath test was conducted has been tested within the past six months and has been found to be accurate, the name of the accused, that prior to administration of the test the accused was advised of his right to observe the process and see the blood alcohol reading on the equipment used to perform the breath test, the date and time the sample was taken from the accused, the sample's alcohol content, and the name of the person who examined the sample. This certificate, when attested by the individual conducting the breath test, shall be admissible in any court in any criminal or civil proceeding as evidence of the facts therein stated and of the results of such analysis. Any such certificate of analysis purporting to be signed by a person authorized by the Department shall be admissible in evidence without proof of seal or signature of the person whose name is signed to it. A copy of the certificate shall be promptly delivered to the accused. Copies of Department records relating to any breath test conducted pursuant to this section shall be admissible provided such copies are authenticated as true copies either by the custodian thereof or by the person to whom the custodian reports.

The officer making the arrest, or anyone with him at the time of the arrest, or anyone participating in the arrest of the accused, if otherwise qualified to conduct such test as provided by this section, may administer the breath test and analyze the results.
 

DWI is a class 1 misdemeanor in the Commonwealth of Virginia. A first time offense is punishable by up to one year in jail and/or up to $2500 in fines. Additionally, Section 18.2-270 of the Code of Virginia mandates entry into ASAP (Alcohol Safety Action Program) and a one-year revocation of the defendant's drivers license upon conviction for a first time offense. The sentence parameters for a second and third offense of DWI are more severe. A third offense may actually be charged as a felony offense. Note that even for a first time offense, there is mandatory jail time for certain BAC levels.

§ 18.2-270. Penalty for driving while intoxicated; subsequent offense; prior conviction 

A. Except as otherwise provided herein, any person violating any provision of § 18.2-266 shall be guilty of a Class 1 misdemeanor with a mandatory minimum fine of $250. If the person's blood alcohol level as indicated by the chemical test administered as provided in this article was at least 0.15, but not more than 0.20, he shall be confined in jail for an additional mandatory minimum period of five days or, if the level was more than 0.20, for an additional mandatory minimum period of 10 days.

B. 1. Any person convicted of a second offense committed within less than five years after a prior offense under § 18.2-266 shall upon conviction of the second offense be punished by a mandatory minimum fine of $500 and by confinement in jail for not less than one month nor more than one year. Twenty days of such confinement shall be a mandatory minimum sentence.

2. Any person convicted of a second offense committed within a period of five to 10 years of a prior offense under § 18.2-266 shall upon conviction of the second offense be punished by a mandatory minimum fine of $500 and by confinement in jail for not less than one month. Ten days of such confinement shall be a mandatory minimum sentence.

3. Upon conviction of a second offense within 10 years of a prior offense, if the person's blood alcohol level as indicated by the chemical test administered as provided in this article was at least 0.15, but not more than 0.20, he shall be confined in jail for an additional mandatory minimum period of 10 days or, if the level was more than 0.20, for an additional mandatory minimum period of 20 days. In addition, such person shall be fined a mandatory minimum fine of $500.

C. 1. Any person convicted of three offenses of § 18.2-266 committed within a 10-year period shall upon conviction of the third offense be guilty of a Class 6 felony. The sentence of any person convicted of three offenses of § 18.2-266 committed within a 10-year period shall include a mandatory minimum sentence of 90 days, unless the three offenses were committed within a five-year period, in which case the sentence shall include a mandatory minimum sentence of confinement for six months. In addition, such person shall be fined a mandatory minimum fine of $1,000.

2. The punishment of any person convicted of a fourth or subsequent offense of § 18.2-266 committed within a 10-year period shall, upon conviction, include a mandatory minimum term of imprisonment of one year. In addition, such person shall be fined a mandatory minimum fine of $1,000. Unless otherwise modified by the court, the defendant shall remain on probation and under the terms of any suspended sentence for the same period as his operator's license was suspended, not to exceed three years.

3. The vehicle solely owned and operated by the accused during the commission of a felony violation of § 18.2-266 shall be subject to seizure and forfeiture. After an arrest for a felony violation of § 18.2-266, the Commonwealth may file an information in accordance with § 19.2-386.1. If the information is filed, the Commonwealth shall notify the Commissioner of the Department of Motor Vehicles that the property is subject to seizure. The Commissioner shall act upon such notification pursuant to the provisions for certification and notice applicable to a seizure under § 19.2-375, except that the Commissioner shall serve the written notice of the seizure upon the registered owner and lienor in accordance with the requirements of § 8.01-296. Any seizure shall be stayed until conviction and the exhaustion of all appeals at which time, if the information has been filed, the Commonwealth shall immediately commence seizure of the property in accordance with § 19.2-386.2.

An immediate family member of the owner of any motor vehicle for which an information has been filed under this section who was not the driver at the time of the violation may petition the court in which such information was filed for the release of the motor vehicle. If the immediate family member proves by a preponderance of the evidence that his immediate family has only one motor vehicle and will suffer a substantial hardship if that motor vehicle is seized and forfeited, the court, in its discretion, may release the vehicle.

In the event the vehicle was sold to a bona fide purchaser subsequent to the arrest but prior to seizure in order to avoid seizure and forfeiture, the Commonwealth shall have a right of action against the seller for the proceeds of the sale.

D. In addition to the penalty otherwise authorized by this section or § 16.1-278.9, any person convicted of a violation of § 18.2-266 committed while transporting a person 17 years of age or younger shall be (i) fined an additional minimum of $500 and not more than $1,000 and (ii) sentenced to a mandatory minimum period of confinement of five days.

E. For the purpose of determining the number of offenses committed by, and the punishment appropriate for, a person under this section, an adult conviction of any person, or finding of guilty in the case of a juvenile, under the following shall be considered a conviction of § 18.2-266: (i) the provisions of § 18.2-36.1 or the substantially similar laws of any other state or of the United States, (ii) the provisions of §§ 18.2-51.4, 18.2-266, former § 18.1-54 (formerly § 18-75), the ordinance of any county, city or town in this Commonwealth or the laws of any other state or of the United States substantially similar to the provisions of § 18.2-51.4, or § 18.2-266, or (iii) the provisions of subsection A of § 46.2-341.24 or the substantially similar laws of any other state or of the United States.

F. Mandatory minimum punishments imposed pursuant to this section shall be cumulative, and mandatory minimum terms of confinement shall be served consecutively. However, in no case shall punishment imposed hereunder exceed the applicable statutory maximum Class 1 misdemeanor term of confinement or fine upon conviction of a first or second offense, or Class 6 felony term of confinement or fine upon conviction of a third or subsequent offense.

If BAC is .15 to .20, there is mandatory 5 days in prison.  

If BAC is 0.20% or higher, there is a mandatory 10 days in prison. 

20 days minimum in prison.

For BAC between .15 and .20, add 10 days in jail.

For BAC .21 and above, add 20 days

Driving to and from VASAP 
Driving to and from work 
Driving during work  hours with proper agendas 
Driving to and from school 
Driving to and from medical treatment 

Some judges in northern Virginia do not allow the issuance of a restricted license until 30 days from the conviction date. They term this a "walking period." For judges that make the defendant walk for 30 days, it is often beneficial to move (motion at trial) the Court to allow for a reduction of this period by 7 days to reflect the administrative loss period faced by all persons charged with a DWI. If made properly and with conviction, judges will often consider this argument and allow the issuance of a restricted license after 23 days.

It is often in the best interest of defendants facing a DWI charge to thoroughly review the sections of the Code of Virginia applicable to the offense of drunk driving. Most of the relevant sections are provided above. 

The defense of a DWI charge is laced with technical issues. An attorney must review the stop for Constitutional defenses based on the Fourth Amendment. If the stop passes muster, the defense counsel must analyze the sobriety tests and BAC certificate for adherence to proper procedure and processes. Good attorneys will always subpoena and review the maintenance records from the Department of Forensic Science to make certain the breath test machine (Intoxilizer 5000) was properly maintained and that the operator was fully authorized to conduct the test.

For persons interested in proceeding pro se (without an attorney), it is imperative to review the technical sections regarding the scientific evidence in a DWI case. Cases are won and lost on technical / scientific terms in this area of the law. 

Over 60% of DWI cases are certain to lead to a conviction. In those cases, it is in the best interest of the defendant to plea bargain with the prosecutor prior to appearing before the judge. In Fairfax, this is not possible for an unrepresented defendant because the Commonwealth Attorney (prosecutor) will not speak with a defendant without the appearance of counsel. This is policy in Fairfax county. However, for all the remaining northern Virginia jurisdictions, it is possible for a pro se defendant to speak with the Commonwealth Attorney and strike a deal.  Make certain you know the parameters of the sentence prior to negotiating with the government attorney.  Their interests and your interests are fundamentally different.

The terms of this deal are usually more favorable if you are able to point out a legal weakness in the government's case. Legal weaknesses in the government's case are technical issues as stated above.

THE BOSE LAW FIRM TEAM IS SIMPLY UNMATCHED
The Bose Law Firm team understands the mindset of the Police officer, Prosecutor, and the Prosecutor's Expert Toxicologist.

Former Virginia Police Officers	Bose employs former Virginia and federal police officers on staff to analyze police procedure and form unique defenses based on years of experience. POINTS OF DISTINCTION  In an effort to emulate our expertise in the realm of DUI/RD defense, some law firms have structured "Of Counsel" agreements with attorneys who are former military police officers.  These "Of Counsel" agreements are basically subcontractor agreements formed between a law firm and a solo practitioner (one person practice) not associated directly with the firm.  "Of Counsel" attorneys have their own clients and serve only a portion of their practice time as subcontractors to the law firm claiming them as "Of Counsel."  Bose attorneys and staff professionals are not subcontractors, they are employees of the Firm with only one set of clients and only one focus - a Bose client's best interest.  Bose Law Firm employs former Virginia and federal police officers including a former Fairfax County police officer.  For DUI and Reckless driving cases, the experience of former Virginia police officers is invaluable. One of Virginia's self-proclaimed "largest" firms (with only a handful of DUI/RD lawyers amongst a sea of civil attorneys) now highlights that its Constitutional Attorney is a 2007 graduate of the Arlington County Citizen Police Academy.  Clients, with their security clearances and livelihoods at risk, know and research professionals.  They are not easily fooled or impressed.  When one speaks with a Bose Law Firm attorney, one knows he is speaking with a person with authority.  When one interacts with a Bose Law Firm attorney, one immeditely senses the years of experience and dedicated advocacy. Bose Law Firm is proud of its heritage, lineage and trust amongst a very small community of attorneys, police officers and highly discerning professionals who chose Bose Law Firm as their attorneys of choice.    Query: Did the police properly pace you in your Virginia reckless driving case pursuant to academy standards?  Did the police properly conduct the Virginia DUI field sobriety tests?
Former Virginia Private Investigators	Bose lawyers include a former private investigator  with unique talent in investigating crimes, testifying in trials and understanding the criminal justice system. POINTS OF DISTINCTION  Some law firms hire private investigators to assist in cases and charge these subcontractor/third party fees to the client.  Bose does not hire outside personnel.  Again, the focus is to contain all information in-house and maintain a high level of nexus to the core competencies within the Firm.  Query: Does the witness in your Virginia DUI accident case have convictions which impede his level of truthfulness?  Are there witnesses with exculpatory evidence in your Virginia DUI accident case?  Did the police get the facts right in your Virginia reckless driving case?
Former Prosecutors	Bose Law Firm® lawyers  include former Virginia prosecutors who have handled felonies and misdemeanors on behalf of the Government.  This experience is indispensable in understanding the mind set of the attorney who will prosecute the case. Query:  How will the prosecutor's office polices and state mandates affect your disposition?  Was the prosecutor taught the latest scientific defenses in her yearly Assistant Commonwealth Attorney seminars?
Former Scientist	Bose lawyers  include counsel with training in advanced chemistry, physiology, biology at the university level.  This unparalleled experience leads to a very careful analysis of complex chemical evidence, testing procedures and protocols.  This experience is highly effective in cases involving expert toxicologists in DUI cases: both breath and blood cases. POINTS OF DISTINCTION  Having a scientist with high level university training is not necessary for all DUI cases.  However, it is indispensible in cases when the prosecutor calls its Richmond, Virginia based Expert Toxicologist - the Breath Section Chief for the Division of Forensic Science.  If there is a trial in one's DUI case and if the science of the blood or breath is attacked by the defense, there is a high probability of the government calling the Breath Section Chief to tender expert testimony.  Knowledge is power - particularly in the sciences. There are currently no other Virginia DUI law firms with a scientist as part of the DUI defense team. Query:  Will your atkins diet influence the production of ketones and thus enhance your blood alcohol and thus the facts of your Virginia DUI case?  Will the procedure implemented by the registered nurse in extracting your blood in your Virginia DUI case influence the results?
Lecturers and Professors	Bose Law Firm® attorneys teach other lawyers and police officers various areas of criminal law, DUI defense and criminal procedure.  Further, Bose lawyers teach police officers in various forums and are lecturers and professors in local colleges.  POINTS OF DISTINCTION  There are currently no other Virginia DUI law firms with attorneys chosen to teach in the F.B.I. Academy.  The distinction is one of honor and prestige.

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