10 Virginia DWI Law Tips – Winter, January 2015

Top 10 DWI Law Tips for 2015

Plus, safe driving tips and suggested GPS app

A DWI Lawyer fairfax virginia

This post contains no legal advice. Virginia laws frequently change, and all cases should be discussed with a licensed Virginia criminal law attorney. The good news: many local Northern Virginia DWI and DUI attorneys offer free consultations. If charged with DUI or DWI in Virginia, contact a Northern Virginia DWI attorney as soon as possible following the arrest (read why time is not on your side below). This post is brought to you by award winning Fairfax DWI lawyer, Brenton Vincenzes. For a free consultation (in-office or over the phone), leave a message online here or call 703.665.3719.

Do you plan to go out this month? Arlington, Alexandria, Fairfax, or the District of Columbia? If so, you may need to find your way home via route 66, I-95, 495, 395, Fairfax County Parkway, or the many other roads in Northern Virginia.

10 Virginia DUI / DWI Tips List

10 Virginia DWI Points from a Fairfax Criminal Lawyer

Please do not forget: nothing below or on this site should be construed as legal advice. It is not legal advice. We only provide legal advice to our clients. This information is for educational/informational purposes only. To see some of our recent case results achieved by Northern Virginia criminal lawyer, Brent Vincenzes, see our results page.

1. Late evening/early morning hours: Officers more likely to stop drivers for very minor non-moving infractions.

Many of us know someone who regularly claims he or she is able to drive perfectly after a night of heavy drinking. Even assuming this to be true, it is terrible logic. This is not a public safety pointer…it is not a comment on whether or not it is possible to drive safely when above the threshold of .08.

The point: drivers who make no mistakes at all may still be arrested for DWI in Virginia (and it is more common than most people realize).

Why? Police tend to stop drivers for offenses which would not ordinarily trigger traffic stops when it is a typical time for party-goers to return home after closing time.

In short: if an officer has a very small hunch (profiling happens all the time) AND that officer has a legal basis to initiate a traffic stop, chances are high a stop will take place.

Police officers in Virginia initiate traffic stops based on a variety of non-moving infractions.

Realistically, most officers would probably admit there are some offenses that even if observed, would not normally prompt a stop. But when the ability exists and a hunch, too, it does not matter how perfectly a person drives. If he or she is stopped and has been drinking, then an officer will most likely be able to detect the odor of alcohol and at that point, good luck.

The point: Headlights, license plate display lights, and taillights fail sometimes without warning. It is also easy to forget how low speed limits are in some areas. This pointer applies to stops initiated on a hunch not just of DWI, but drug possession. Check your car to make sure the lights and signals are not out if you are driving, even if you are a designated driver (consider: it is not uncommon for every person in a vehicle, including the designated driver, to be charged with a possession offense (such as possession of marijuana), when the illegal contraband is found in the vehicle and no occupants make an admission.

The bottom line:

people are charged with DWI in Virginia even though their driving was perfect.

2. A single car accident with no witnesses can result in a Virginia DWI charge.

A driver need not be pulled over in the traditional sense to find himself in jail as a result of DWI in Virginia.

For example, a minor accident (driving car into a ditch) can result in a DWI charge although the officer did not observe driving behavior. These cases may be more difficult for the Commonwealth to prove beyond a reasonable doubt, but each case is unique and even DWI charges arising from accidents with no witnesses may be supported with evidence like:

  • admissions by the driver;
  • testimony from an officer regarding observations of the accused after the accident;
  • field sobriety tests;
  • preliminary breath tests;
  • and other documentary and testimonial evidence.

3. You can still be arrested on suspicion of DWI in Virginia if you blow under .08.

Many people in Northern Virginia are under the impression that a BAC level under .08 is going to automatically serve to protect against a DWI conviction. It will not. How is this so? The DWI law in Virginia contains several ways for police to charge drivers.

Even if a driver’s blood alcohol concentration level is less than .08, if the officer thinks the ability to drive safely is impaired, then a charge may be filed and an arrest may be executed based upon probable cause.

Take a look at the language of the statute, Virginia Code Section 18.2-266:

(We have summarized the statute – read the full version here).

It is a violation of the Virginia DWI law (18.2-266) … if the driver:

  • has a blood alcohol concentration of 0.08 percent or more;

  • is under influence of alcohol;

  • is under influence of any drug which impairs ability to drive safely;

  • is under influence of alcohol + any drug which impairs ability to drive safely; or,

  • has a blood concentration of the following drugs in the listed volume(s):

    1. 02 milligrams of cocaine per liter of blood,

    2. 1 milligrams of methamphetamine per liter of blood,

    3. 01 milligrams of phencyclidine per liter of blood, or

    4. 1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood.

Just because the law lists cocaine, meth, and other drugs specifically does not mean a driver could not be charged with DWI for driving while intoxicated as a result of taking too much cough medicine. Any intoxicant, according to the law, may serve as a basis for a DWI charge and conviction in Virginia. It comes down to the ability to drive safely.

4. Drivers do not have to consent to a preliminary breath test on the side of the road.

Read this carefully: you do not have to consent to a preliminary breath test (PBT) offered by an officer on the side of the road, but whether or not it is wise to refuse to do so depends upon the circumstances. If unsure of your rights, ask the officer if he or she would mind explaining  your rights. The officer should never demand the driver blow into a breathalyzer (the handheld device).

Consider: the reason for the preliminary hand-held breath test is to aid the officer in his or her determination of probable cause. Probable cause is a standard that if met, can result in arrest. The officer needs probable cause and one way to get that probable cause is the PBT reading. The PBT is not something used to determine guilt, but rather, to determine cause to arrest.

5. Police officers should ask about field sobriety testing (they should not demand).

You do not have to perform or engage in field sobriety tests, but again (just like consent to a preliminary breath test), whether or not it is wise to consent is not for discussion. Every case is unique and no source is in a position to give advice as to a future hypothetical offense.

These tests are also meant to help the officer determine whether or not an arrest should be made. But it is just as important to remember that an officer may still make an arrest based on probable cause in some cases, even if the driver does not consent to field sobriety tests or a PBT. Refusing to take the tests may be a factor the Commonwealth argues as something the judge ought to consider (if the defense makes a motion to suppress based upon lack of probable cause), but it is merely one factor of potentially dozens or more, under a totality of circumstances analysis by the trier of fact (or judge). Our Principal DWI lawyer in Northern VA brings relevant case law to court, in case a motion relies on an obscure or lesser-known case. It is often up to the defense attorney to educate the client, and sometimes the Commonwealth (prosecution). In slightly more rare occasions, yet still not completely unusual, the defense attorney educates the judge.

6. Drivers are expected to submit to a test if arrested.

If a driver is arrested (even if the original consent to blow in to the roadside PBT was denied), drivers in the Commonwealth are expected to submit to a test to determine blood alcohol concentration at the station post-arrest. Failing to submit to such a test AFTER arrest may result in a separate charge. See Virginia Code Section 18.2-268.3. Refusal of tests: a first violation is a civil violation but the court will suspend the privilege to drive for one year. Subsequent violations are criminal.

7. Some people talk too much.

Even if an officer does not smell alcohol or detect slurred speech, it is not uncommon for law enforcement officials to slip in other questions…especially in early morning hours when people are typically returning home from a night out. The police and prosecutors may refer to these as consensual encounters and argue that the person was free to leave but still voluntarily chose to stay and talk to the police. It is smart to be polite and courteous, but overreaching questions should be politely responded to by asking whether or not one is free to leave. If the officer says no, then the reasons for the officer’s response will later be scrutinized by a diligent VA DUI / DWI attorney.

8. When jail is unavoidable (see chart).

A first-time DWI conviction may result in active or suspended jail time. In some cases, judges have discretion to impose active jail, suspended jail, or no jail time at all. However, other cases are different. Some convictions require, by law, a mandatory minimum. There are many factors, even in the case of a first offense. (see § 18.2-270. Penalty for driving while intoxicated; subsequent offense; prior conviction). In the past, we published common misconceptions about DWI offenses in Virginia.

BAC level or Conviction Number

Mandatory Additional Jail Time (Not Suspended)

0.15 to 0.20 BAC 5 days
Above 0.20 10 days
2 convictions in less than 5 years 20 days
2 convictions within 5-10 years 10 days
2 convictions within 10 years and .15 – .20 BAC 10 days
2 convictions within 10 years and above .20 BAC 20 days
3 convictions in 10 years (felony) 90 days
3 convictions in 5 years 6 months
Any conviction after felony DWI conviction 1 year
4 convictions within 10 years 1 year
Transporting minor at time of offense 5 days (maybe more if other charges filed)

9. Felony DWI? May result in loss of car.

Felony DWI in Virginia may result in seizure and forfeiture of the driver’s vehicle. There are specific provisions related to this aspect of the law, see the code section in-full or talk to a lawyer, for more information and discuss your matter with a local Virginia criminal lawyer or Fairfax DWI lawyer. Losing a vehicle can be a monumental setback.

Conviction of a third or subsequent DWI within 10 years is a felony in Virginia, but determining whether or not a prior conviction is to be counted for this purpose is not straightforward.

First, convictions in other states do count, but only under substantially similar laws.

Second, the law does not state that convictions for purposes of convicting the driver of a felony vs. misdemeanor take place prior to the alleged third offense. So, a third offense within the time period will allow for the increased penalty, even if the convictions do not take place in that relative order of offense date(s).

10. If you consent to a field test and have a medical issue, tell the officer.

If asked to perform field sobriety tests and the driver agrees, he or she should be sure to tell the police officer about any conditions (such as leg injuries) which could impact the ability to successfully complete the tests.

The tests consist of standing on one leg for a period of time; walking heel-to-toe for a specific number of steps then turning back; following a pen with eyes (HGN); and, others (recitation of the alphabet or counting backwards, etc.). The numerical and alphabet tests carry less weight vs. the first three, and the first two carry more weight than the third (HGN). This is based on experience, observations, scientific research, as well as information from the National Highway Traffic Safety Administration

Also of importance: when cases are tried in the court of law, a driver who believes he or she was not driving in an unsafe manner may wish to challenge the arrest.

In other words, the officer did not have probable cause and thus, the case should be dismissed.

As of 2015, all of the Fairfax County Police Department Stations should have functional cameras. The video and audio may be helpful evidence for the accused; especially when tests were performed with little error.

One may politely ask the officer who initiated the stop that should any field tests be consented to, they be performed in full view of a functioning police camera with audio.

Brenton Vincenzes was recently featured on WUSA 9 (DC) in a segment on dash cameras. If interested in learning how they may be of assistance, view that story released late 2014 on the Channel 9 WUSA TV site.

3 Safe Driving Tips

Regardless of where you are heading at the end of the night, a Driving While Intoxicated (DWI / DUI) conviction can pose a big problem if you value your freedom and your job.

If you have had anything to drink, do the smart thing and please make a plan to get home without getting behind the wheel. If you need a reminder about the DWI laws in Virginia, please go to our Virginia DWI laws and penalties main page.

  1. Have a Plan

If you have a plan, follow it. Poor decisions tend to be made more frequently when a person is under the influence of alcohol. If you do not have a plan but instead you tell yourself you will make a decision later in the evening, you may take a risk not worth taking.

  1. Set Up GPS Before Driving

This is an important message: everyone is aware of the dangers of texting and driving, but adjusting a GPS or cell phone using a GPS app is potentially just as dangerous. Remember how annoying the GPS navigation voice can be if you are sensitive to it or expect a phone call, and make the necessary setting adjustments before you put the car in drive. Along these lines, make sure your phone is secure and will not be sliding all over the dash or the console. You do not want to be reaching around on the floor while driving on 66 or 95 at 2 am.

Waze is an app for smart phones we recommend for GPS. Get it:

  1. Stay Hydrated and Be Cognizant of Your Level of Alertness

There is nothing wrong with drinking alcohol, but if you are having a drink with dinner and driving home afterwards, have a tall glass of water with every drink. This will slow down your pace by spacing drinks out, and it will help you feel better the next day.

Arguably just as dangerous as drunk driving: driving while exhausted. If you are a designated driver or simply going home after a long workday, stay alert and awake.


 Further Reading on Virginia DWI Laws:

CDL Holder? What is OWI? Operating a commercial vehicle while  intoxicated triggers numerous other potential laws. More here.

More New Years-themed DWI legal discussion from the past

DWI Jail Chart

Revoked License Information Following DWI


One of the worst things you can do if charged with DWI in Virginia is wait around. The video evidence from the police cruiser is critical in so many cases, but if too much time passes, you may not have the ability to ever see that footage.  We recommend talking to a few lawyers if faced with a charge, and find out who you feel the most comfortable working with. Patience is a key element when up against this charge, and you will need to have an attorney who is trustworthy and reliable for the most effective representation and best possible outcome.

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Brenton D. Vincenzes is a lifelong Fairfax County resident and Fairfax Criminal Defense Lawyer. He is a member of the Virginia Association of Criminal Defense Lawyers, National College of DUI Defense, NORML, and has been awarded the following in 2014-15: Top 100 Trial Lawyer (National Trial Lawyers) Top 40 Under 40 Trial Lawyer (National Trial Lawyers) Nationally Ranked Top 10 Under 40 Defense Attorney (National Academy of Criminal Defense Attorneys) 10 Best in Client Satisfaction for Criminal Defense (American Institute of Criminal Law Attorneys) Nationally Ranked Top 1% Attorney Award Recipient (National Association of Distinguished Counsel) As a local leader, Mr. Vincenzes mentors troubled youths, volunteers his time to serve at his church, takes select pro bono clients, and strives to improve the community. Mr. Vincenzes represents men, women, and juveniles through zealous and diligent advocacy, strategic planning, and skilled trial work preparation. Mr. Vincenzes' areas of criminal law practice are broad, and include most felonies and misdemeanors such as: reckless driving, DUI & DWI, drug offenses, assault and battery, domestic violence, assault on an officer, destruction of property, alcohol offenses, firearm offenses, larceny, shoplifting, embezzlement, fraud, and other theft offenses, and moving traffic violations among others. His private legal services are available in most Northern Virginia jurisdictions, including Fairfax County, Arlington County, Prince William County, Loudoun County, Stafford County, Alexandria, Manassas, Leesburg, South Riding, and other cities and towns.



  1. Jonathan Pound says

    It’s always a good idea to know your rights when you are pulled over by a police officer. It’s always best to have the law on your side. Even the police officer must follow policy and procedure which is mandated by state law. The more you know the better decisions you can make.

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