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Virginia DWI – Explained

Virginia DWI – Explained

Chances are, if you are reading this page you have been charged with Driving while intoxicated (DWI) In Virginia. under § 18.2-266 of the Code of Virginia.  The charge of DWI is very serious in Virginia and the punishment can involve jail time, high fines, required education classes, lengthy loss of license periods and the requirement that you install an ignition interlock device in your vehicle.  Subsequent convictions (e.g. 2nd, 3rd, & 4th offenses) and elevated blood alcohol concentrations (BAC) carry even more serious penalties.

Everything you have worked for could be in jeopardy.  Your job, your security clearance, and your livelihood…


When people think of DWI charges in Virginia, they think of someone driving with a blood alcohol concentration (BAC) above a .08. While a vast majority of Virginia DUIs deal with BACs of a .08 or above, most people do not realize that you can be charged and convicted of a Virginia DWI offense with a BAC as low as .06.  In fact, you can be convicted of DWI with no BAC at all.

Don’t trust your future and all you have worked for to just any attorney.  Any attorney can plead you guilty to an offense, but only a select few will truly fight to keep you from being convicted.  If you are charged with a Virginia DWI, you need the help of an experienced DWI attorney.  Attorney Dischley has been a prosecutor in two northern Virginia jurisdictions and knows how to challenge the technical, legal, and procedural issues affiliated with Virginia DWI offenses.  Attorney Dischley has handled hundreds of DWI cases and knows that the result of every case he handles matters.  He is available to help you with your DWI defense in Arlington, Alexandria, Fairfax, Prince William, Loudoun, Fauquier, Stafford, Spotsylvania, Culpeper, Rappahannock, Clarke, Herndon, Vienna, Fairfax City, and U.S. District Court in Alexandria.

Whether its a federal court DWI or local court, Attorney Dischley has won DWI Cases in all the Major Northern Virginia Jurisdictions.  Put his experience to work for you…


Virginia DWI cases often rise and fall on the testimony of the arresting officer.  He or she will be the primary witness against you. These officers receive many hours of training on DWI arrest procedures, field sobriety testing, and breath alcohol analysis.  Furthermore, they are trained and taught how to “effectively” testify in court.  Local police officers are trained in a variety of different academies (Northern Virginia Criminal Justice Academy in Ashburn, Fairfax County Criminal Justice Academy in Chantilly, Prince William County Criminal Justice Academy in Nokesville, and the Rappahannock Regional  Criminal Justice Academy in Fredericksburg and Middletown).  If you are in Federal Court, the likely officer attended the Federal Law Enforcement Training Center (FLETC) in Glenco, GA.

Your case (unless their is video) is going to hinge on that officer’s ability to accurately recall the facts of your case to the prosecutor (for negotiations) and to the judge (at trial).  This testimony is often affected by their training, experience, and ability to articulate.  Some officers are excellent at relaying the facts accurately to the court and describing, in detail, their observations that lead to your arrest.  Conversely, some officers are lacking in this area despite having recorded the information in their notes and report.

As a former Prosecutor and police advisor, Attorney Dischley knows how a case can hinge on a single witness’s ability to testify.  He understands that what an officer does not say is as important as those things that are said.  This experience is priceless when the prosecutor is struggling to get facts out of the police officer.


In Virginia DWI cases, the prosecution, like in all criminal cases, is required to prove your guilt “beyond a reasonable doubt.”  Below is an excerpt from a Virginia Jury Model Jury Instruction that explains the concept of “beyond a reasonable doubt” as:

This standard does not require proof beyond all possible doubt; nor is the Commonwealth required to disprove every conceivable circumstance of innocence.  However, suspicion or probability of guilt is not enough for a conviction.  A reasonable doubt is a doubt based on sound judgment after a full and impartial consideration of all the evidence in the case.

To meet its burden, the Commonwealth is going to rely on the officer’s observation regarding the your driving behavior (e.g. weaving, erratic lane changes, speeding, etc),general appearance, gait, coordination, statements, and the results of any chemical analysis performed.   All of these observations and scientific evidence are used to prove the accused was “under the influence.”  In Virginia, a fact-finder is permitted to infer that a person is under the influence if their BAC is .08 or higher.  This is permissible inference can be negated by proof to the contrary (e.g. excellent performance on Field Sobriety Tests).  In cases where there is a BAC, the Commonwealth or government will place a lot of emphasis on the breath certificate.  This is often because this evidence tends to be the most conclusive of guilt if the science and machinery used to produce this result is not properly challenged.  Technical arguments are critical to overcome this inference.

Attorney Dischley handles each DWI case personally and understands what is at stake for his clients.  Any attorney can plead a client guilty; however, that is not the aim of the representation undertaken by Attorney Dischley.  No case is cut and dry or black and white.  Every case has legal issues that are identifiable to a skilled and experienced criminal defense Attorney.  Furthermore, as any former prosecutor knows, nothing can be taken for granted and sometimes things just do not go your way.  This means that prosecutors can make mistakes, struggle to get a piece of evidence in, have a hard time phrasing a question that day, and much more.  Many things can occur at trial that, if identified properly, can be used to your advantage.

Experts are often employed by DWI Defense Attorneys to show problems with the breath test machinery or to negate the permissible inferences found in Virginia Law.


While many cases involve a BAC reading, there those cases where there is no BAC.  These cases are often associated with a refusal charge or occurred on private property.  When there is no BAC, the Commonwealth must prove that a person is under the influence of alcohol.  A person is under the influence when that person has consumed enough alcoholic beverages as to affect his or her manner, speech, disposition, muscular movement, general appearance, or behavior as to be apparent to common observation.  Field sobriety tests are critical to the prosecutions case in these circumstances.

Attacking Field Sobriety Tests and the observations of the officer are critical to challenging a DWI charge in Virginia.  Effective challenges to Field Sobriety Testing can result in the case being thrown out for lack of probable cause to arrest or a failure to prove the case beyond a reasonable doubt.  The National Highway Traffic Safety Association (NHTSA) developed standardized field sobriety tests that, when conducted properly, can predict, to a certain percentage, of accuracy that a person has a BAC over a .08.  These Standardized Field Sobriety tests are (1) the nine-step walk and turn; (2) the Horizontal Gaze Nystagmus Test (HGN) and (3) the one-legged stand.  These tests are judged by the number of clues present.  If a person shows certain clues, an officer may be able to accurately predict intoxication.

Ironically, Virginia does not require that officer’s use Standardized Field Sobriety Tests and, at trial, the officer’s independent opinion as to whether the accused passed or failed the test is inadmissible as a conclusory opinion.  What the court is looking at is the person’s performance on the tests as they relate to intoxication.  Courts are required to look at the ‘totality of the circumstances” when judging the indicators of intoxication.  Specifically, a judge will want to hear testimony about the your balance, ability to follow instructions, demeanor, and appearance.

Attorney Dischley was a highly successful DWI prosecutor.  He successfully prosecuted contentious DWIs against some of the best defense attorneys in Northern Virginia.  Through this experience, he learned what defenses work, what defenses do not, and how best to present them.  He was trained by the Commonwealth of Virginia’s Department of Forensic Science on all matters related to Virginia DWI cases.  Through this training, Attorney Dischley is able to analyze all aspects of the DWI arrest to identify critical issues that could lead to your acquittal.  From the initial stop to the arrest, Attorney Dischley will closely scrutinize the Commonwealth’s case to identify flaws in the traffic stop, administration of field sobriety tests, and the arrest process.  Attacking the officer’s observations, field testing, and procedures are crucial to crushing the prosecutor’s case and keeping the Breath Certificate out of evidence.

Virginia courts place a lot of emphasis is placed on the admission of the breath certificate in a DWI case.  Almost any DWI is winnable without a certificate of analysis.  But when there is a certificate of analysis in a case, this scientific evidence is heavily relied upon to prove intoxication.  It is the piece of evidence that tilts the scale in favor of the government on the beyond a reasonable doubt spectrum.  From a defense perspective, THE FOCUS IS ON KEEPING THIS CERTIFICATE OUT OF EVIDENCE.  The basis for these challenges are vast and experience plays a major role.  If the certificate stays out, your chances of winning your DWI charge improve immensely.

A Virginia DWI could ruin everything you worked for in your life.  It can adversely affect security clearances, immigration issues, and your livelihood.  You have no choice – YOU MUST FIGHT YOUR CASE.  Having a clean record and a lot to loose is not going to get you the result you need.  Having an experienced DWI Attorney will.

Alexandria Office
108 N. Alfred Street
Alexandria, Virginia 22314

Manassas Office
9255 Center Street, Suite 300B Manassas, Virginia 20110
Fairfax Office
10509 Judicial Drive, Suite 102A Fairfax, VA 22030