Virginia DUI | DWI – What To Expect

If you are charged with a DUI | DWI offense in Northern Virginia, dispositions can vary between the various cities and counties.  Hiring a lawyer can add a small amount of certainty to your situation.  An attorney analyzing your case is going to assess the probability of successful negotiations with the prosecutor, likely offers, and the degree of risk in going to trial.

The process starts with negotiations.  In this process, while we would all like to think the prosecutor will drop the charges after talking to your lawyer, the reality is that only happens in very extreme circumstances.  Usually, if a prosecutor moves to nolle prosequi (not prosecute) your case, it is because there is an obvious legal hurdle that they know they can not overcome (they are going to lose and they know it).  On every other case, they are going to try and get something out of it.

Reductions to Reckless Driving are usually favorable outcomes that most individuals charged with DUI | DWI will accept because the stigma associate with this reduction is much less than having been convicted of a DUI | DWI.  Its important to note that a conviction of Reckless Driving is still a criminal misdemeanor conviction.  The important difference is it is not a crime involving alcohol and the license suspension that could be associated with it is only 6 months (vis-a-vis a year).  Further, ignition interlock is not REQUIRED on a conviction of Reckless Driving.

Different Commonwealth Attorneys Offices have different guidelines, if they have any at all, for reducing a DUI | DWI charge to reckless driving.  When your BAC is a .08 or .09, your chances of getting a reduction to reckless driving are better than most but it is still a challenge for a lawyer to get this reduction.  A reduction from DUI | DWI to Reckless Driving is usually based on a combination of factors from the prosecutors perspective regarding the legal issues in the case, your BAC, the probability of prevailing on the charge, the likelihood of you re-offending, and equitable factors personal to you (your job, consequences of a DUI | DWI, mitigation).

In the end, a reduction to Reckless Driving is truly a phenomenal disposition but is not frequently given by prosecutors.  In some jurisdictions, like Loudoun County, the prosecutors would rather lose the .08 DUI | DWI than reduce it Reckless Driving. While this theory may seem counterintuitive, it is based on the very real reality that they prosecutor, while having a duty to do justice, is an advocate for the state.  The head prosecutor is an elected official and has to answer to the electorate.   Read this news article for a deeper understanding of why reducing a charge to reckless driving is a big deal for a prosecutor.

Regardless of whether or not the charge gets reduced to reckless driving, a typical disposition in a first offense DUI | DWI in Virginia, without an elevated BAC (> .15) usually looks as follows.

  • An all suspended jail sentence (usually from 30 – 180 days).
  • A fine of $300 (some jurisdictions will suspend a portion of the fine (e.g. $1500 with $1200 suspended or $600 with $300 suspended).
  • 1 year loss of license (Restricted license conditioned on installing ignition interlock).
  • The suspended portion of the jail is conditioned on you enrolling in and successfully completing the Virginia Alcohol Safety Action Program (VASAP),violating no laws, and being of general good behavior (essentially, doing what VASAP tells you to do and not getting in any further trouble).

Suspended Jail Time

Suspended jail time essentially means probation (supervised or unsupervised).  This is jail time that is hanging over your head and should you violate any of the terms of your probation or not complete the programs you have been ordered to complete, then you may be called back into court to show cause why you should not have to serve all or a portion of this jail time.   The jail time is typically suspended for 12 months (period of probation); however, some jurisdictions do 36 months a a matter of course.

Suspended Fine

The concept of a suspended fine is similar to the suspended jail time.  If you are successful on probation, you will not have to pay the suspended portion of the fine; however, if you violate, the judge could order you to pay that suspended portion.

License Suspension

License suspensions in Virginia DUI | DWI cases are MANDATORY.  The judge has no discretion on the issue and must suspend you license.  However, the decision to grant a restricted license is DISCRETIONARY.  A judge may authorize a restricted license to allow you to drive to and from your primary employment and any secondary employment you may have.  The judge can also allow you to drive during work hours (if required by your employer),to and from medical appointments for you and your family members, to and from programs required by the court (including VASAP),to and from a place of worship one time a week, and to and from your child’s school and/or daycare provider.  AS A CONDITION OF A RESTRICTED LICENSE AUTHORIZED IN VIRGINIA DUI | DWI CASES THE JUDGE MUST ORDER THE INSTALLATION OF AN IGNITION INTERLOCK DEVICE FOR A MINIMUM OF 6 MONTHS.  After the 6 month time period has expired, you must petition the court for removal of the device (usually requires VASAP approval).  Read more about ignition interlock at the following sites:  Lifesaver or Drager

VASAP (Virginia Alcohol Safety Action Program)

For the typical first offender, VASAP is a 20-hour program which focuses on substance abuse and driving, substance abuse and health, and self evaluation of potential for substance abuse.  The education aspect of the treatment includes random testing for alcohol/drugs. VASAP can also order an offender who is at a particularly high risk of substance abuse to attend an additional 20 week intensive education program.  In addition to education, VASAP is authorized to refer a person for treatment, if necessary.  Read more about VASAP. 

OTHER CONDITIONS

Usually, all supervision of other conditions are accomplished through the VASAP program; however, the court may put you on active supervision through the local community based probation department (Adult Court Services, Community Corrections, Local Offenders Program, etc).

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