Legal Question in DUI Law in Virginia

In VA is DUI considered a "civil offense"

Asked on 7/06/14, 11:01 am

1 Answer from Attorneys

Sean Hanover Hanover Law

So what is a DUI?

Well...a DUI (driving under the influence) is a criminal offense. Generally, there are two types of alcohol related charges.


DUIDriving under the influenceVaries. However, generally this charge requires proof that the alcohol content in an individual's blood is .08 or higher.VA Code 18.2-266; DC Code 50-2206.11

DWI/OWIDriving while intoxicated; Operating while intoxicatedVaries. However, generally this charge requires only proof of some intoxication, and not a specific amount.Virginia really does not have a DWI/OWI provision. Closest would be VA Code 18.2-269(A)(2). DC Code 50-2206.14 is very specific in that a separate charge always exists for OWI.

There is quite a bit of literature about "failure to provide breath samples." In DC, this is generally not prosecuted by the Court. Rather, the police report the refusal to the Mayor's office (DMV) and separate action is taken to suspend the offender's license for 12 months. See DC Code 50-1905. However, in terms of defense, "refusal to blow," as it is popularly called, can be used as evidence of guilt in DC. Be careful of this! Probable cause (from SFST [standard field sobriety tests] at the scene) + refusal to blow = conviction in DC. You must beat the SFST's and/or exclude evidence of refusal to blow or you lose in DC.

In VA, the situation is a little different. Refusal to blow is a criminal offense covered under VA Code 18.2-268.3. This means that prior to a full hearing on the DUI, you will have to prove/disprove your refusal before the Court. While the refusal cannot be used against you in the DUI trial (unlike DC; see VA Code 18.2-268.10; 18.2-268.3(D)), if you bring it up first, the prosecution can and will use it against you. In VA, if convicted of refusing to provide a breath sample, you will be barred from driving in the Commonwealth for one year. Subsequent refusals carry exceptionally stiff penalties. See VA Code 18.2-268.3(B).

There are several "jam" strategies for stopping the police and the prosecution from successfully nailing a defendant for DUI. OWI is harder, as the standard is even lower. Do you need help beating a DUI charge? Contact us! We've had great success at holding the State to its burden of proof. Let us show you what competent counsel can do! 1-800-579-9864.

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Answered on 7/06/14, 12:52 pm

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