Virginia DWI FAQ: – VA DUI Laws in Virginia by Fairfax Criminal Attorney Vincenzes Law


Understanding DWI laws in Virginia can be complicated and confusing. Our Virginia criminal attorney and Fairfax based DUI lawyer has created this quick guide to help non-lawyers understand the basics, in a Question and Answer (Q & A) format. We have tried our best to create a guide absent legalese.

Some of the questions our Northern Virginia criminal attorney addresses are as follows:

  • How do Virginia DUI lawyers analyze DWI cases and arrests?
  • If there is no reason for a stop, does it influence the case? If so, how?
  • Do police officers ever wait or “stake out” bars/nightclubs?
  • What exactly gives a police officer in Virginia a reason to stop me?
  • What happens in the event of a single-car accident (no witnesses)?
  • How do Virginia police try to prove or allege the identity of the driver?
  • Should I take field sobriety tests?
  • Should I blow on the side of the road if suspected of DUI in Virginia?
  • Do police officers want me to blow on the the side of the road?
  • Is a Preliminary Breath Test (PBT) “evidence”?
  • What if I blew on the side of the road prior to a VA DUI arrest?
  • If I pass field sobriety tests, will I be free to leave in Virginia?
  • What is the difference between blowing on the side of the road vs. blowing at the police station after a DWI or DUI arrest in Virginia?
  • Should I blow at the station if I have been arrested for DWI or DUI?
  • Do I have to blow or submit to a breath test at the police station?
  • What are the penalties for refusal in Virginia?
  • Will my criminal defense attorney in VA be able to obtain footage (i.e., dash-cam, or body-cam footage)?
  • What are the steps in a Virginia DWI or DUI trial?
  • What are my rights if I am charged with DWI in Virginia?
  • What are the penalties if convicted of DWI in VA? How does this differ from refusal penalties in VA?
  • If I was found “not guilty of DUI or DWI” how is it that I can be found “guilty” of refusal”?
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How Do Virginia DWI Attorneys Analyze Cases?

First, it is helpful for readers to understand the way a Virginia criminal lawyer or local Fairfax DWI attorney may analyze a case:

The major issues, generally speaking, are as follows:

  1. What was the reason for the stop (why did the officer conduct a traffic stop)
    • Sometimes, this question does not come into play because the driver is not stopped, but either is questioned after he/she was alleged to be operating a motor vehicle on a public highway in the Commonwealth,  or he/she was involved in a motor vehicle accident. Another possible scenario involves a driver who is asleep behind the wheel.
  2. Did the driver blow on the side of the road (prior to arrest)?
  3. Did the driver perform and consent to field sobriety tests?
  4. Did the driver blow or provide a blood sample at the station after arrest?
  5. Did the police officer provide proper instructions, and ask the right questions?

Virginia DWI Laws – Frequently Asked Questions

Our local Fairfax criminal lawyer believes it makes the most sense to address the questions most people have in the order in which they occur in real life. So, here are the main issues our Fairfax DUI attorney often addresses, we cover them in this order:

What is the reason for the stop? Why was I stopped or pulled over? How does it affect my case?

Generally, the first step when analyzing a DWI case involves the reason for the initial interaction with law enforcement. Drivers are stopped for numerous reasons, here are some of the most common:

  • Speeding
  • Defective equipment (headlights not turned on, brake light out, or license plate display light out)
  • Expired registration
  • Erratic driving behavior (swerving, near collisions, actual collisions)
  • Anonymous tips (other drivers reporting vehicle driving erratically)
  • Obstructed view (air freshener)

If a driver is stopped for an infraction and then an officer smells alcohol, then he or she may ask questions… but it does not mean the driver must answer such questions. The next thing the officer will likely ask is whether or not he or she would be willing to perform field sobriety tests, and/or submit to a preliminary breath test (PBT).

If a driver refuses all of the above, it may result in an arrest. Whether or not the case will be dismissed depends upon how bad (or decent) the driving behavior was, as well as other factors (e.g., beer cans littered across the vehicle; demeanor of the driver; presence of vomit; and, numerous other factors).

Do police officers ever wait outside of bars or nightclubs?

There are numerous other reasons why a traffic stop may be initiated. Some police officers are keenly aware of certain bars and clubs where patrons often leave inebriated. These officers may wait in locations at specific times, looking for a reason to pull over a driver who seem to be departing from such location.

If an officer has any reasonable articulable suspicion of any violation of a law – criminal or traffic – he or she can conduct a stop or detention. Once stopped, if the driver has been drinking, it is usually detected by way of odor of congeners. Alcohol itself has no odor, but other ingredients in alcoholic beverages cause humans to emit the typical alcoholic beverage odor smell most people are aware of.

Many people think that clear liquor, like vodka, cannot be detected by smell. This is not true. There is, however, a basis, based on our research, that darker liquors such as whiskey could produce a heavier smell. Never drive after consuming alcohol! With that said, it is important to eat, drink water, and wait for a lengthy period of time before driving if even one drink has been consumed. Alcohol in any form is usually very easily detectable by trained officers if the suspect has not consumed food or water – especially if consumption of alcohol was recent.

What gives an officer a basis to stop me or pull me over?

Any reasonable articulable suspicion of criminal activity or violation of the law may result in a traffic stop. In fact, though this may seem contrary to common belief, if an officer reasonably believes you are breaking the law, but you are not, the stop may be deemed valid. 

What if I was involved in an accident but nobody else saw anything?

If you are involved in a single vehicle accident, then eventually you will probably interact with law enforcement. They will try to elicit a statement – an admission – that you were the driver (assuming they suspect you were the driver and are not covering for someone else).

Generally, there is nothing you can say to the police that will help your situation as a suspected driver, unless you were not the driver. Our Fairfax Northern Virginia criminal attorney almost always tells people that they only hurt themselves talking to police. Of course, every situation and case is different, and while this is not legal advice it is what criminal law and trial practice legal professors have taught for decades, including Professor Duane.

James Duane: Influential former Trial Advocacy professor of Brenton Vincenzes

How can the police prove I was the driver?

Police officers will pretend to downplay situations, or they may approach with harsh words. Ultimately, they just want to find out who was driving. If a person is standing next to a vehicle in a ditch by themselves, officers will probably assume it was that person who was driving. Unless the person can corroborate that someone else was driving and fled the scene, the police will probably try to question the individual and use techniques to try and elicit an admission. Again, please remember every case is unique and this is not legal advice.

VA DWI Laws – Field Sobriety Tests

Should I take sobriety tests?

You do not have perform field sobriety tests. There are numerous tests, but the two most acceptable tests are the 9-step walk and turn, and the 1 leg stand test. The HGN (pen/eye test) is accepted as scientifically reliable in a few courts in Northern Virginia, but in our Virginia DWI criminal attorney’s experience, it is the least-focused upon test of the main three.

If an officer forces an individual to perform field sobriety tests, then these tests should not be considered when it comes to the threshold determination of whether or not probable cause existed for the arrest at the time he/she was placed in handcuffs. Why? The arrest, arguably in such a situation, occurs when the suspected driver is told her or she must perform the tests or otherwise will be arrested. The same is true for the PBT.

Should I blow on the side of the road?

This question is asked very frequently. We have previously published on this topic.

If you have not consumed an alcoholic beverage, most people would say “yes.” Again, this article is not legal advice, however, it is important to understand the difference between blowing on the side of the road versus blowing at the station after arrest.

Do officers hope you will blow on the side of the road?

The short answer is, yes! The reason why law enforcement loves it when someone blows on the side of the road is because even if he or she performs field sobriety tests without error, police officers are trained to arrest if the individual consents and blows near, around, or above .08. Keep in mind, a driver may still be arrested even if he or she blows a low or zero level for alcohol, if there is a suspicion the driver is intoxicated by something other than alcohol.

Is the Preliminary Breath Test considered evidence?

The PBT is not considered by a trial judge as evidence when it comes to the ultimate question of whether or not someone was intoxicated beyond a reasonable doubt. That said, our Fairfax criminal lawyer believes most of his victories have been a result of dismissal based upon lack of probable cause.   If the individual submits to the PBT and performs perfect sobriety tests, the sobriety tests do not mean much.

Is my case doomed if I blew or submitted to take a breath test on the side of the road?

Virginia defense attorneys should be ready to exclude PBT results at trial for purposes of determining probable cause, if a basis exists. A few examples: Improper calibration; timing issues; non-arresting officer provides PBT but is not present at trial; and, many more. Again each case is different and requires analysis by a Virginia defense attorney or local Northern VA fiarfax criminal lawyer.

What if I do well on my sobriety tests, will they let me go? Should I blow on the side of the road?

If asked to perform sobriety tests and a driver does do well, he or she may be asked whether they will submit to a preliminary breath test (PBT). The officer will probably state that the results are not admissible in court unless the attorney challenges probable cause, and that it is not legally required. Sometimes, the officer may cross a line and make the individual feel as if they must take the PBT. It can even rise to the level that in which an officer makes a person believe he or she will be arrested if they do not take the PBT. This is not acceptable. Whether or not a person consents to blow on the side of the road is their own decision.

If someone performs sobriety tests well, and driving behavior is not indicative of driving while intoxicated, then there may not be probable cause to arrest the driver for DWI, unless he or she does blow on the side of the road. In other words, a PBT reading – even if a slight infraction is the reason for the stop and in light of perfect field sobriety tests – probable cause to arrest may exist..

Our Fairfax DWI lawyer wants you to be aware of your rights, and the implications of your decisions.

What is the difference between blowing on the side of the road vs. at the station?

Blowing on the side of the road is used for purposes of determining the legal basis to arrest the driver. In many cases, criminal defense attorneys have a chance to challenge probable cause – and hopefully dismiss the case —  if the arrested party refused the roadside test.

On the other hand, the test at the station is required by law. If a driver refuses to submit to a breath test after arrest, they will likely be charged with a violation of the refusal law. When the police are especially bored or diligent, or if they suspect the driver is on drugs rather than alcohol, they may seek to obtain a warrant to obtain the person’s blood. If the suspect does not allow for a blood sample, law enforcement  could in theory charge that person with obstruction of justice. There have been cases our Fairfax criminal DWI attorney has handed in which the suspect was strapped or held down, and blood was drawn.

Virginia DUI Laws – Blowing at Police Station vs. Side of the Road

Should I blow at the station after arrest?

The consequence is not a criminal conviction (for a first offense), but the penalty is severe – no driving for a full year, and no restricted license, either. Readers must also be aware that if convicted and the blood alcohol level is .15 or higher, mandatory jail time must be imposed by the judge (the judge has no authority to go below 5 days for a first offense, assuming it is over .15 but below .20. Higher levels mandate more consequences.

Do I have to blow at the station after arrest?

If you were arrested based upon probable cause (suspicion of DWI) on a public highway within the Commonwealth of Virginia, then the refusal law requires submission by way of something called “implied consent.” A driver implies his or her consent to submit to a test if arrested for such a purpose. Keep in mind, if arrested, the driver is not deemed guilty.

Refusal of a breath or blood test may result in loss of license and no ability for a restricted license for a year or more (depending on the individual’s record). With that said some people knowingly violate this law because of mandatory jail terms for certain elevated blood alcohol level situations.

What happens if I do not agree to blow at the station, after arrest?

If you do not agree to provide a breath sample, the officer will either charge you will refusal, a civil violation if it is a first offense, or, he/’she may seek a warrant for a blood sample.

What are the penalties if convicted of refusal in Virginia?

A first-offense refusal violation is not a criminal conviction; however, the penalty is extremely annoying for most people. It results in loss of privilege to drive for a year, with no ability to petition the court for a restricted license.

Of course, if convicted of refusal and found not guilty of DWI (which happens more than you may know), one may appeal the refusal conviction. Our Fairfax DWI attorney has successfully handled DWI and refusal cases, with the case resulting in the refusal charge being amended to something else such as improper driving (a 3 point traffic violation with no suspended license). This is not a suggestion or insinuation your case will manifest itself in such a way, as all cases are unique.

Virginia DWI and DUI Discovery Issues – Dash Cam, Police Reports, and Body Cam

I was charged with DWI. Can my lawyer get the dash-cam footage from my case?

Dash-cam and body cam footage is usually helpful for the criminal defense attorney and the defendant. Sometimes, it is bad. Usually, our criminal lawyer in Fairfax is eager to see the video because in his experience, the police reports typically do not paint a full picture of what really happened.

No police officer wants to arrest a person without probable cause, but it happens all the time. When video did not exist (in years gone by), it probably happened more often. But still, usually the video is obtainable on the first court date in Fairfax County. In Prince William County, body cam footage is obtainable as well, via a web portal provided to the defense attorney. In some jurisdictions, a special request must be made. Also, another variance is the format. Some counties provide video via email (using online systems) and other counties provide the VA criminal lawyer with a DVD. The quality of the footage varies greatly.

What are the steps in a Virginia DWI or DUI trial?

The judge will ask both sides (defense and Commonwealth whether or not either side would like to make a preliminary motion. Then, the judge should ask both sides if they would like to make opening arguments. In regular/typical cases, usually both sides waive in our criminal lawyer’s experience. However, it is sometimes important for a Virginia DUI defense attorney to provide the judge with a roadmap – that is to say, offer a  statement explaining what may be stipulated (admitted), and what will be challenged.

The Commonwealth always goes first.

First, the prosecutor or Commonwealth attorney will usually ask the officer to testify as to the reason for the initial encounter. It may be a regular traffic stop, or, response to an accident from dispatch among other possibilities. 

Second, the defense attorney will be able to cross-examine the officer. Depending on the judge, the video (if one exists) may be played by either side, and generally the judge will direct both parties as to how he or she prefers to handle the logistics and flow of the trial. Every judge is different. One tip our local Fairfax criminal lawyer suggest: when selecting a Virginia DWI lawyer, it is important to factor in counsel’s knowledge of judge preferences.

In a typical case, once the officer has testified and the video has been played, and after the VA criminal law attorney has cross-examined the officer, he or she may make a motion to challenge the reason for the stop, or probable cause for the arrest.

If the judge rules that there was a valid reason for the stop, or if the judge rules that there was probable cause, then the next phase will begin. Alternatively, the case may be dismissed at this juncture.

Third, the prosecutor may call other witnesses (e.g., accident witnesses, etc.). Once the commonwealth rests her case, the defense may make a motion to strike. This is an assertion that the elements of the offense have not been alleged.

Fourth, the defense will be able to call witnesses to testify, including the defendant, but it is not required nor generally advised. Even if the defendant consumed one alcoholic beverage, the Commonwealth would potentially question the defendant and raise an issue as to his or her memory of the events.

The prosecutor will usually attempt to admit into evidence the breath analysis certificate or blood analysis certificate prior to resting their case, so when the defense attorney has his or her turn, he or she may call an expert witness to refute the Commonwealth’s evidence.

Finally, there may be questions related to the administration or upkeep of a breath analysis or evidentiary breath device, or in the event of a blood-case, chain of custody issues or a plethora of other challenges.

Eventually, both sides are able to put forth closing arguments.

Lastly, the judge will render a decision as to guilty beyond a reasonable doubt, and if found guilty, he or she will hear arguments as to sentencing.

What are my rights if I am charged with DWI?

This is a broad question. Generally, and in no particular order (this is not a complete list): a charged individual has the right to an attorney, the right to say no to a preliminary breath test, the right to refuse field sobriety tests, the right to remain silent, the right not to incriminate one’s self, the right to have his or her property returned upon conclusion of the case or investigation depending on circumstances. The right to go before a neutral and detached magistrate.

Virginia DUI and VA DWI Penalties

What are the penalties of refusal?

For a first offense, the penalty is not criminal in nature. However, it will result in loss of privilege to operate a motor vehicle for one year, with no ability to petition or ask the court for a a restricted license.

The law is tricky: for example, according to Virginia Code 18.2-268.3, if found guilty of refusal and within the prior 10 years the individual was found guilty of a previous refusal charge, DWI, or other offenses then it is considered a Class 1 misdemeanor which is punishable by up to 12 months in jail and a $2,500 fine. Unlike a first offense refusal, conviction under these circumstances would result in at least a 3 year deprivation of privilege to operate a motor vehicle.

What are the penalties of DWI?

This depends on jurisdiction, as well as the nature of the case. It depends also on one’s prior record, and the alcohol level (if tested is considered “elevated”). Since each case is different and each jurisdiction and judge vary to a degree, consult your local Virginia criminal law attorney for assessment of your case.

I was found not guilty of DWI, so how can I be found guilty of refusal?

See our article on refusal penalties vs. DWI penalties. Basically, if a judge decides the driver was arrested based upon probable cause, but the individual does not submit to a breath analysis and is charged with refusal, he or she may be found not guilty of driving while intoxicated yet guilty of refusal.

Is it possible to be found not guilty of DWI and refusal? If so, how?

Yes. There are a few ways, but the most common are as follows: First, if the reason for the stop is not founded upon reasonable articulable suspicion of illegal activity – as in, the officer stopped the driver without a legitimate basis (this may happen if the officer sees a driver leaving a nightclub, for example), but no law is violated, any subsequent resulting charge would generally be dismissed. The second situation is when an officer makes an arrest without probable cause. If an arrest occurs absent probable cause, then the DWI should be dismissed and so should the refusal charge.  Speak with your local Fairfax DWI attorney for analysis because every case is different.

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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.

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