Traffic and DUI Defense

Thomas L. Phillips, Jr., Gentry R.P. Ferrell, and Brian R. Moore serve as our firm’s primary criminal and traffic defense team. Our attorneys are experienced in criminal defense representation for a variety of matters including: DUI or DWI, reckless driving or speeding, drug related offenses, and numerous other misdemeanor and felony matters.

Every citizen has specific rights under federal and state laws when faced with criminal charges. These protections are essential to our nation’s system of justice and inseparable from the notion of a free and fair society. In order to ensure that your rights are protected it is highly recommended that you contact a lawyer before speaking to law enforcement authorities or anyone else concerning any criminal allegations or charges brought against you.

Driving Under the Influence or Driving While Intoxicated (DUI / DWI) Offenses

Being charged with DUI/DWI can be a harrowing experience.  A conviction for DUI/DWI often has a far-reaching impact on a person’s life, including the loss of one’s driver license, fines, costs, and increased insurance rates, embarrassment, and even jail time.  Because of the great detriment caused by such penalties it is important that the law pertaining to DUI/DWI related offenses by interpreted strictly and accurately by the Courts so that the innocent are not convicted and the guilty are not punished more harshly than the law requires.  The only way to ensure that your case is handled properly is to utilize the services of an attorney with experience in handling state and local law and procedures with regards to DUI/DWI laws. Our attorneys have the experience necessary to see that your rights are thoroughly and properly represented in court.

The general DUI/DWI statute for Virginia may be found at Virginia Code § 18.2-266.   The commonly relevant portion is as follows:

  • 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…

The portions applicable to preliminary breath tests (these are the field breathalyzers) may be found at Virginia Code § 18.2-267.  It is important to remember that these sections only apply to preliminary breath tests and not the more official breath test taken after the arrest for DUI/DWI . Here are some excerpts from that statute.

  • A. Any person who is suspected of a violation of § 18.2-266, 18.2-266.1, subsection B of § 18.2-272, or a similar ordinance shall be entitled, if such equipment is available, to have his breath analyzed to determine the probable alcoholic content of his blood….
  • C. Any person who has been stopped by a police officer…and is suspected by such officer to be guilty of an offense listed in subsection A, shall have the right to refuse to permit his breath to be so analyzed, and his failure to permit such analysis shall not be evidence in any prosecution for an offense listed in subsection A.
  • D. Whenever the breath sample analysis indicates that alcohol is present in the person’s blood, the officer may charge the person with a violation of an offense listed in subsection A…
  • E. The results of the breath analysis shall not be admitted into evidence in any prosecution for an offense listed in subsection A, the purpose of this section being to permit a preliminary analysis of the alcoholic content of the blood of a person suspected of having committed an offense listed in subsection A.
  • F. Police officers ……shall, upon stopping any person suspected of having committed an offense listed in subsection A, advise the person of his rights under the provisions of this section.

Once a person has been arrested for suspected DUI/DWI then they are usually required to take an “official” breath test.  The results of this test may be used as evidence against you in court.  The statutory provisions related to this process may be found at Virginia Code § 18.2-268.2.  Here are a few excerpts:

  • A. Any person, whether licensed by Virginia or not, who operates a motor vehicle upon a highway, as defined in § 46.2-100, in the Commonwealth shall be deemed thereby, as a condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, if he is arrested for violation of § 18.2-266, 18.2-266.1, or subsection B of § 18.2-272 or of a similar ordinance within three hours of the alleged offense.
  • B. Any person so arrested for a violation of clause (i) or (ii) of § 18.2-266 or both, § 18.2-266.1 or subsection B of § 18.2-272 or of a similar ordinance shall submit to a breath test. If the breath test is unavailable or the person is physically unable to submit to the breath test, a blood test shall be given. The accused shall, prior to administration of the test, be advised by the person administering the test that he has the right to observe the process of analysis and to see the blood-alcohol reading on the equipment used to perform the breath test. If the equipment automatically produces a written printout of the breath test result, the printout, or a copy, shall be given to the accused.
  • C. A person, after having been arrested for a violation of clause (iii), (iv), or (v) of § 18.2-266 or § 18.2-266.1 or subsection B of § 18.2-272 or of a similar ordinance, may be required to submit to a blood test to determine the drug or both drug and alcohol content of his blood. When a person, after having been arrested for a violation of § 18.2-266 (i) or (ii) or both, submits to a breath test in accordance with subsection B or refuses to take or is incapable of taking such a breath test, he may be required to submit to tests to determine the drug or both drug and alcohol content of his blood if the law-enforcement officer has reasonable cause to believe the person was driving under the influence of any drug or combination of drugs, or the combined influence of alcohol and drugs.

If you are ever arrested for DUI/DWI be sure to take advantage of the right to observe the process of analysis and to read the blood alcohol level on the analysis machine as well a request a copy of the results.

Many people do not realize the significance of Virginia Code § 18.2-268.2(A) unless they take the time to read the very next statute, which sets forth the penalty for refusing to take the breath test impliedly consented to under Virginia Law.  Virginia Code § 18.2-268.3 sets forth the procedures in case of a breath test refusal and, more importantly, § 18.2-268.3(D) states that for a first offense refusal of a breath test the driver’s license shall be suspended for a period of one year. Subsequent refusals (as the result of a subsequent arrest) are treated as criminal offenses.

The basic penalty structure for DUI/DWI offenses may be found at Virginia Code § 18.2-270.   Here are a few excerpts:

  • 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…. (i) 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, (ii) 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.
  • B.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.
  • B.3. Upon conviction of a second offense within 10 years of a prior offense, if the person’s blood alcohol level…. (i) 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, (ii) 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.
  • C.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.

  • 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.

As one can see the statutes pertaining to DUI/DWI offenses are complex.  This brief overview has only covered a small portion of the statutory text devoted to these types of criminal charges.  There are many more provisions and exceptions that a competent lawyer must be aware of in order to properly serve their client.

Back to Top