VA DUI Penalties & Defenses

Justin Ervin is an experienced DUI defense attorney, providing top-quality defense throughout Fairfax, Arlington, Loudoun, Alexandria, and Stafford.

Call us today: (703) 962-7790

Fairfax DUI & Traffic Lawyer

Have you been charged with a DUI or DWI in Virginia?  If so, it is critical to be aware of what the potential penalties are if you are convicted.  In Virginia, DUI (Driving Under the Influence) charges are treated possibly harsher than in any other state in the country.  For this reason, it is important to hire an experienced DUI lawyer to work on your case and develop a proper defense strategy as early in the process as possible.  It is important to remember that any amount of alcohol in your system can result in a DUI charge and conviction.  While the legal limit for Blood Alcohol Content (BAC) is .08, you can test below a .08 BAC and still be arrested and convicted for DUI if the Commonwealth can prove that you were impaired.

Potential Penalties For a First-Time DUI Conviction:

  • Jail Incarceration (length depends on the BAC level)
  • Up to $2500 Fine
  • 12 months loss of driver’s license
  • If granted a restricted license, you will be required to pay for and install an ignition interlock device
  • 6 points on your Virginia driver’s license
  • Completion of ASAP (Alcohol Safety & Awareness Program) at your expense

Experienced Virginia DUI Lawyer

The attorneys at Ervin Kibria PLLC defend clients charged with DUIs throughout Northern Virginia, including Alexandria, Fairfax, Loudoun and Prince William Counties.  When you are facing a drunk driving charge or any motor vehicle traffic offense, you need fast, accurate answers about your situation and the best way to proceed. The defense attorneys at Ervin Kibria understand your concerns and your sense of urgency in dealing with a difficult situation.

  • The consequences for DUI: Clients who reach out to us concerning a DUI arrest often share common questions. These concerns are best addressed by a lawyer experienced with DUI cases. While every case is different, clients often struggle with understanding what a DUI conviction would mean. Will there be a criminal record? Jail time? Loss of a driver’s license?  We’re hear to listen to your concerns, answer your questions to the best of our ability, and guide through the difficult legal process.
  • An aggressive defense: The consequences of a DUI charge often depend on having an experienced lawyer to represent you. At Ervin Kibria, we have the necessary experience to aggressively investigate, defend and challenge the charges.
  • We work with you: We do not treat cases as if they were a car on an assembly line. We are not a DUI mill. We are personalized. We are accessible. We are hands on. We keep our practice small so we can be completely dedicated to giving our clients the very best representation. When you hire us you have direct access to us, not a law clerk, or a paralegal, or an associate attorney.

Whether you are dealing with a DUI charge or a serious traffic offense that can put points on your driver’s license, you can depend on the defense lawyers at Ervin Kibria.

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Justin Ervin, Esq.

Principal Attorney

Lawyer specializing in DUI and criminal defense throughout Northern Virginia.

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Penalties For Virginia DUI Conviction

What Constitutes Driving For DUI Purposes?

Under Virginia law, an operator or a driver means: “every person who either (i) drives or is in actual physical control of a motor vehicle on a highway or (ii) is exercising control over or steering a vehicle being towed by a motor vehicle.” A Virginia Supreme Court judge had recently reiterated: “any individual who is in actual physical control of a vehicle is an operator.”

Virginia courts have established the rule that when an intoxicated person is seated behind the steering wheel of a motor vehicle on a public highway and the key is in the ignition switch, he is in actual physical control of the vehicle and, therefore, is guilty of operating the vehicle while under the influence of alcohol within the meaning of Code § 18.2-266.

Based on this definition and a variety of Virginia Supreme Court decisions, Virginia police officers will charge you with a DUI even when you are not actually driving your vehicle. This includes: falling asleep behind the wheel of a parked car while in the driver’s seat with the keys in the ignition, just listening to the radio in the driver’s seat while the car is on, etc.

Virginia Field Sobriety Tests

After you are pulled over, if the officer has reason to believe that you may be intoxicated, he or she will ask you to perform field sobriety tests.  Generally, officers do not possess probable cause to arrest you for DUI at the time that they pull you over.  However, an extended interaction with police, including performance of these field sobriety tests can often provide the evidence they need to legally justify an arrest.  Consequently, it is very important to be aware of possible field sobriety tests, the voluntary nature of these tests, and why the police use them.  These tests are voluntary, not required; but most clients perform the tests anyway, because everybody tries to be as cooperative as possible. (The problem here is that by performing field sobriety tests, you are providing the officer with evidence that he can use against you in court. Had you not performed the tests, the officer would not have had this evidence to use against you in court, and may not have had probable cause to arrest you for a DWI.)

Generally, officers in Northern Virginia implement the following tests while investigating a subject for drunk driving, in addition to asking you to count backwards, perform the alphabet without singing, and performing the finger touch test.

HGN Eye Test 

“Horizontal Gaze Nystagmus” (“HGN”) is a physical sign of intoxication that involves the involuntary jerking of eye.  In the administration of this test, the officer instructs the suspect to follow (with his eyes) a stimulus to the left and to the right. The officer notes the angle at which the pupil starts to exhibit “nystagmus” (an involuntary jerking of the eye). An early onset of nystagmus (at or before a 45-degree angle) is a clue associated with a high blood alcohol concentration. is an involuntary jerking of the eye that occurs naturally as the eyes gaze to the side.  However, this type of HGN result may also indicate the consumption of seizure medications, phencyclidine, a variety of inhalants, barbiturates, and other depressants.

Walk and Turn

The Walk-and-Turn test and One-Leg Stand test are “divided attention” tests that, according to the government, are easily performed by most unimpaired people. They require a suspect to listen to and follow instructions while performing simple physical movements. Impaired persons have difficulty with tasks requiring their attention to be divided between simple mental and physical exercises. (Personally, I have difficulty performing these tests while sober and while knowing all of the instructions after years of repetitive training.)

In the Walk-and-Turn test, the subject is directed to take nine steps, heel-to-toe, along a straight line. After taking the steps, the suspect must turn on one foot and return in the same manner in the opposite direction. The examiner looks for 8 indicators of impairment: if the suspect cannot keep balance while listening to the instructions, begins before the instructions are finished, stops while walking to regain balance, does not touch heel-to-toe, steps off the line, uses arms to balance, makes an improper turn, or takes an incorrect number of steps.

One Leg Stand

In the One-Leg Stand test, the suspect is instructed to stand with one foot approximately six inches off the ground and count aloud until told to put the foot down. The officer times the subject for 30 seconds. The officer looks for four indicators of impairment, including swaying while balancing, using arms to balance, hopping to maintain balance, and putting the foot down.

Standard DUI Penalties For First Offense:

For a first offense, Virginia DUI penalties are still considerably harsh.  DUI convictions will always include a probationary period for one year, completion of alcohol treatment classes provided by ASAP, a fine that tends to run between $250-$500, loss of license for 12 months, jail incarceration (with some or all of that time suspended), and installation of an ignition interlock device if the defendant applies for a restricted driver’s license.

DUI Penalties With a Prior DUI Conviction

A prior DUI conviction will have serious implications on any subsequent offense.  In generally, a prior DUI conviction will be used to increase your DUI from a misdemeanor to a felony if it is a third or subsequent offense within 10 years, impose higher penalties for your new offense, and potentially implicate the mandatory sentencing requirements for your new conviction.

What is Virginia’s Implied Consent Law?

You may have heard or read about Virginia’s “implied consent law,” without really understanding what it refers to.  In Virginia, if you drive a vehicle on a public highway (which is any publicly accessible road), you are assumed to have impliedly consented to a blood or breath test being performed if you are ever arrested for a DUI.  Consequently, you can and likely will be punished with another charge if you refuse to submit to take these sobriety tests.  Virginia Code Section 18.2-268.3 makes it illegal to “unreasonably refuse” to have samples of your blood or breath taken for chemical analysis to determine the alcohol or drug content after a drunk driving arrest has occurred.

While a first refusal crime is considered a civil, rather than criminal offense, the penalties are still severe.  The refusal charge requires a 1 year driver’s license suspension.  A 2nd or 3rd refusal causes the offense to be treated as a criminal matter, and can often result in jail time.

Mandatory Minimum Penalties For a First DUI Conviction in Virginia

  • Suspension of driver’s license for 12 months
  • You must install an ignition interlock device if you are granted a restricted license
  • Attend ASAP classes at your expense (about $300)
  • With a BAC between .15 and .20, you must serve at least 5 days in jail.
  • With a BAC above .20, you must serve at least 10 days in jail.
  • If you had a child in the car at the time of the offense, you must serve at least 5 additional days in jail
  • With a BAC above .15, you must install an ignition interlock device on your vehicle for the first 6 months of restoration of your driver’s license
  • 6 points on your driver’s license

Call Us Today To Discuss Your Virginia DUI Case: (703) 962-7790

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I had a great experience with Mr. Kibria and I would hire him again. I recommend Mr. Kibria to anyone in the DC area. He was very helpful and informative and always responsive right away to my calls and texts. I was really appreciative of that as a lot of times it takes a while for attorneys to get back to you. Mr. Kibria met with me the same day I called and was able to walk me through the process during a free consultation face to face in his office. Also, he gave me a very affordable rate compared to many other attorneys in the area. If you receive a traffic ticket of any kind, make sure to call Mr. Kibria as you won't be disappointed with the service you receive. View on AVVO

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Super DUI & Criminal Lawyer. The defense lawyer you need in the toughest times!

Virginia DUI Penalties & Defenses Overall rating: 5 out of 5 based on 10 reviews.
Ervin Kibria PLLC, 4023 Chain Bridge Rd., Suite 5, Fairfax, 22030, United States - Phone: 703-962-7790 Secondary phone: 703-962-7790 Fax: 866-709-5280