FAQs: Fairfax DUI Charges

If you or a loved one have been charged with a DUI in Fairfax County, Virginia, you may be confused about what your next step should be. Below is some basic information on DUI/DWI in Fairfax. If you have any questions, call our office today to schedule a free consultation with a Fairfax DUI lawyer.

What qualifies as a DUI or DWI in Fairfax?

According to Code Section 18.2-266 you can be convicted of DUI in the Commonwealth if you operate a vehicle under the following conditions:

  • You have a blood alcohol concentration (BAC) of 0.08 percent or more (or 0.08 grams or more of breath as indicated by a breath chemical test);
  • You are driving while under the influence of alcohol;
  • If you are driving while under the influence of any drug (See Section 18.2-266) ;
  • If you are the influence of a combination of alcohol and drugs.

Additionally, Virginia is frequently referred to as a “zero tolerance state” when it comes to underage DUI/DWI; which means that a minor’s BAC need only measure 0.02 percent to result in a DUI/DWI charge. See Section 18.2-266.1.

What are the penalties for a DUI/DWI conviction in Fairfax?

This is a somewhat complicated question because the state legislature recently applied a “weighted” sentencing schedule that takes into account a suspect’s BAC level, the number of previous convictions over the past 10 years (the time that previous convictions can be considered when sentencing one who is guilty of DUI/DWI) and whether there are one or more minors in the vehicle at the time of the alleged offense.

But very generally, for a first offense, the penalty can range up to 12 months in jail and includes the possibility of a fine of $250 to $2,500 as well as a one year license suspension.  A second conviction can result in a fine of $500 to $2,500, up to a year in jail (including 20 to 40 days of mandatory incarceration), and a three year license suspension.  A third conviction raises the fine to $1,000 to $2,500, a mandatory minimum of three months jail, and indefinite driver’s license suspension: Section 18.2-270.

Additional penalties include the mandtory installation of an ignition interlock device once your restricted license is issued, and completion of the Virginia Alcohol Safety Action Program (VASAP).

There is also a new penalty for those under the age of 21, which includes a minimum fine of $500, a one year license suspension, and up to 50 hours of community service: Section 18.2-266.1.

What are my rights when stopped for DUI?

An officer must have “reasonable articulable suspicion” to stop you and generally establishes this by observing your driving behavior. If you are asked to take a field sobriety test (FST), you may refuse, though his should be done in a respectful manner. The results of FST’s are used as probable cause to arrest you for suspicion of DUI/DWI. If you refuse, you will likely be arrested anyway. However, the results of the FSTs can’t be used against you if you don’t take the tests. Determining whether or not you want to cooperate with the FSTs or not is a difficult decision. Again, whatever you choose always be respectful when speaking with the officer.

Can I refuse to take a Breathalyzer test?

Yes, however there are risks for refusing to do so. You will be given a separate charge for refusal and your driver’s license is automatically suspended for one year, per Section 18.2-268.3. A refusal conviction means you can’t qualify for a restricted driver’s license during that time. On the other hand, if you fail a BAC test you will make it easier for the prosecutor to convict you of DUI. Again, the decision can be difficult to make. If you suspect your BAC may register extremely high, you may be better off refusing the Breathalyzer exam and not providing prosecutors with that reading to use against you in court. If you do submit to the test, however, the results can be challenging by a DUI attorney. The machines used for these tests must be calibrated regularly and operated correctly to provide accurate readings. An experienced DUI lawyer will know how to unearth any issues or problems with Breathalyzer evidence.

Will a DUI/DWI conviction affect my driver’s license?

Your license will be suspended upon conviction by operation of law, however the length of the suspension will depend on the circumstances of your case. A minimum 12 month suspension will occur following a first offense in Virginia. A three year suspension follows a second DUI or DWI conviction. Three or more convictions within a ten-year period will result in mandatory, indefinite driver’s license revocation (pdf here).

If my license is suspended, how can I get to work or drive my kids to school?

In certain circumstances you may be able to qualify for a restricted license that allows you to drive to specific places needed to keep a job or to address crucial needs, such as your work, you child’s school and doctor’s appointments or hospitals. A Fairfax DUI attorney can help you request the restricted license and follow up with the DMV to ensure you are legally able to drive your vehicle as long as you comply with the imposed conditions.

Are ignition interlock devices mandatory in Fairfax?

In all cases in which someone has their license suspended due to a DUI conviction, an ignition interlock device is mandatory if a restricted license is issued. See Section 18.2-270.1. You must pay for the installation, as well as a monthly maintenance fee.

Who will hear my court case in Fairfax?

Since you will most likely appear in the General District Court, there will be no jury trial. A judge will hear the evidence and render a decision. If you are convicted and you choose to appeal your conviction, the matter will be transferred to the Fairfax County Circuit Court.  At that time, you have the right to request a jury trial (of seven, rather than 12 people) or you can opt for a judge to oversee the matter once again.