DWI FAQs

Fairfax DWI Frequently Asked Questions

1. What are the penalties for DWI in Fairfax?

A variety of factors can alter the punishment for a person convicted of a DWI offense in Virginia. Judges will often consider a defendant’s prior driving record, whether there was an accident, etc. However, certain minimum punishments apply in most cases. For example, the minimum punishment for a DWI in Virginia largely depends on how high the driver’s blood alcohol content (BAC) was and whether the driver has prior DWI offenses. As with any criminal case, simply being charged in a certain category doesn’t mean that the suspect will be found guilty in that same category. As skilled Virginia DWI attorneys, we always strive to minimize punishments regardless of the category. (Ignition interlock – a device that measures your BAC before you can drive your car – is required for all DWI convictions.)

  • First DWI, BAC .14 or below
    In these cases, no active jail time is required. It is not unusual to get all suspended jail time, a fine of about $300 and a one-year loss of license. Individuals in this category will often be allowed to get a restricted license to drive to work and for other essential travel.
  • First DWI, BAC .15-.20
    Defendants convicted of their first DWI with a BAC between .15 and .20 face a mandatory five days in jail. Additional suspended jail time, a fine, and a one-year loss of license are also likely. A restricted license may be granted, but typically the defendant will be required to be approved by the Alcohol Safety Action Program (see number 10 below).
  • First DWI, BAC above .20
    Defendants in this category face a mandatory 10 days in jail. They also face a fine and a one-year loss of license. A restricted license is possible, but less likely than cases with lower BACs. Enrollment and completion of the ASAP program is also required.
  • Second DWI in 10 years, BAC below .15
    Defendants in this category face a mandatory 10 days in jail, based upon it being their second offense. They will also face a mandatory $500 fine. Additionally, a conviction will result in a three-year loss of license and a requirement to complete the ASAP program. A restricted license cannot be issued for the first four months.
  • Second DWI in 10 years, BAC .15to.20
    Defendants in this category face a mandatory 10 days in jail, based upon it being their second offense, and another 10 days based on the elevated BAC. They also face a mandatory $500 fine. Additionally, a conviction will result in a three-year loss of license and a requirement to complete the ASAP program. A restricted license cannot be issued for the first four months.
  • Second DWI in 10 years, BAC .21 or higher
    Defendants in this category face a mandatory 10 days in jail, based upon it being their second offense, and another 20 days based on the elevated BAC. They will also face a mandatory $500 fine. Additionally, a conviction will result in a three-year loss of license and a requirement to complete the ASAP program. A restricted license cannot be issued for the first four months.
  • Second DWI in five years, BAC below .15
    Defendants in this category face a mandatory 20 days in jail, based upon it being their second offense. They will also face a mandatory $500 fine. Additionally, a conviction will result in a three-year loss of license and a requirement to complete the ASAP program. A restricted license cannot be issued for the first year.
  • Second DWI in five years, BAC .15-.20
    Defendants in this category face a mandatory 20 days in jail based upon it being their second offense and another 10 days based on the elevated BAC for a total minimum of 30 days. They will also face a mandatory $500 fine. Additionally, a conviction will result in a three-year loss of license and a requirement to complete the ASAP program. A restricted license cannot be issued for the first year.
  • Second DWI in five years, BAC .21 or higher
    Defendants in this category face a mandatory 20 days in jail, based upon it being their second offense, and another 20 days based on the elevated BAC. They will also face a mandatory $500 fine. Additionally, a conviction will result in a three-year loss of license and a requirement to complete the ASAP program. A restricted license cannot be issued for the first year.
  • Third DWI or subsequent
    Any individual convicted of three or more DWIs in 10 years or less faces a felony conviction. Even relative to misdemeanor punishments, these cases have factors that cause tremendous differences in the outcome of the case. A person convicted of his or her third DWI in 10 years faces a minimum of 90 days in jail. A third DWI conviction in five years results in a minimum of sixmonths in jail, and afourthmeans a minimum of one year in jail.

Every case is unique and has a number of factors that may impact the outcome for the DWI defendant. Please remember that the information below is provided only as a general guide about the Virginia DWI penalties that may result from a conviction for the outlined offenses.

2. What is the definition of DWI?

An individual can be found guilty of a “DWI” (driving while intoxicated) in Virginia if the government can successfully prove that the person was operating a motor vehicle while under the influence of alcohol or any self-administered drug or intoxicant. Typically, Fairfax DWI arrests happen when the suspect has consumed enough alcohol to affect their manner, disposition, muscular movement, general appearance and/or behavior.

According to state law, a person is guilty of driving while intoxicated if they have a BAC over .08 even if they aren’t displaying signs of drunkenness. Furthermore, even if someone has a BAC below .08 but is still exhibiting intoxicated behaviors, they may also be found guilty of a Fairfax DWI charge.

3. The officer never read me my Miranda rights. Will the case automatically get dismissed?

Probably not, at least not solely based on that. In the Commonwealth, the Implied Consent Law provides that each person who drives on the public highways of Virginia agrees to submit a breath or blood test if they are arrested for suspicion of drunk driving. Because of this “agreement” with motorists, the courts have ruled that after being arrested, the defendant doesn’t have to be read his or her Miranda rights. The officer similarly doesn’t have to allow an arrested person access to a lawyer before taking a breath test.

4. Do I really need a VA DWI lawyer?

Successfully defending DWI charges in Virginia is a difficult and complex process that can carry significant and life-changing consequences. Because of the crucial and delicate nature in which accused drunk drivers must treat their legal situation, it is always in their best interest to contact an experienced Virginia DWI lawyer. Skilled attorneys will be able to help clients navigate the complex legal process while helping to best defend the accused in court. If an individual doesn’t wish to hire a lawyer for representation, they should at the very least consult with one before going to court.

5. Am I automatically guilty if my Blood Alcohol Content (BAC) was higher than .08?

As every DWI case in Virginia is unique, not necessarily. Basing intoxication solely on the BAC is not always a guarantee of guilt. If the officer violated a suspect’s rights in any way or if the test cannot be shown to be accurate, a defendant can be found not guilty even with a BAC over the legal limit. Keep in mind that these are just a couple of the possible circumstances where one could be found not guilty in a Fairfax DWI case. There are dozens of other potential issues and defenses based on the individual circumstances of the arrest.

6. What is a refusal charge? What are the penalties for refusal?

The Virginia Implied Consent Law requires all drivers on public highways to consent to testing if they are arrested for DWI. If an individual refuses to take the test after being arrested, he or she may be subject to an additional charge for refusal (in addition to being charged with the underlying drunk driving offense). The first violation is a civil offense, while any subsequent violations are criminal offenses. Typically, first-time offenders will lose their license for a period of at least a year. Additionally, those who lose their driving privileges because of refusing to be tested for drunk driving are not eligible for a restricted license.

7. What happens if I get caught driving while my license is suspended for DWI?

If one is caught driving with a license that has been suspended because of a Virginia DWI conviction, it is possible for the individual to be charged with additional crimes. In addition to penalties for driving on a suspended license, a motorist may be charged under the same section if they are caught driving outside of their restrictions or with any level of alcohol in their blood. Regardless of type, any of these charges are serious offenses. In the state of Virginia, it is a Class 1 misdemeanor and is punishable by up to one year in jail and a $2,500 fine. Additionally, the DMV will automatically suspend an offender’s license for an additional year with no possibility of getting a restricted license. If one had outstanding suspended jail time from a previous Virginia DWI, they could also be subjected to having some or all of their time imposed.

Regardless of the circumstances, it is never a good idea to drive while holding a suspended license for a DWI conviction.

8. What possible DWI defenses exist?

While roving that somebody is intoxicated is a very difficult and complex undertaking in the Commonwealth, a number of viable defenses may exist depending on the facts of one’s case.

Common DWI defenses in Virginia include:

  • Challenge the stop – The officer must have a valid reason to have initially stopped a suspect’s vehicle. If the police can’t show that their reason was valid, the case may be dismissed regardless of what happens after they stop the driver.
  • Challenge the arrest – Law enforcement must have enough evidence to believe that a person was probably intoxicated before they place them under arrest. If they can’t show that they had enough evidence to prove that the suspect was most likely under the influence, then the case may be dismissed, no matter what happens after the individual was arrested.
  • Challenge the field sobriety tests – The police will typically administer a number of field tests. In court, they can testify as to your performance on these tests, the idea being that poor performance on these tests may indicate a level of impairment by the driver. However, these tests are often inconclusive at best. If the officer doesn’t follow and strictly comply with established standards, the test results are even less conclusive.
  • Challenge the Procedure – The collection and testing of breath or blood to determine BAC is complicated and very well-regulated. If the police failed to comply with any of the rules or regulations, the case may be dismissed or reduced.

While these are some of the possible DWI defenses, it is certainly not a complete list. To explore the many additional defense strategies for DWI cases in Fairfax, contact an experienced Virginia attorney immediately.

9. How much is all this going to cost?

Conviction of a DWI charge in Virginia is going to be very costly, monetarily and otherwise. As fines, court costs, and ASAP fees all add up quickly, it is a good idea to invest in an experienced defense attorney to avoid the potentially life-changing financial consequences of conviction.

10. What’s VASAP/ASAP?

ASAP, or sometimes referred to as VASAP, is the Virginia Alcohol Safety Action Program. By law, all individuals convicted of a DWI in the Commonwealth are required to complete the program. Additionally, a condition of receiving a restricted license will be based upon total compliance with the ASAP program. Generally beginning with an initial intake evaluation, a participant will be assigned a counselor with whom they will discuss their prior record, drinking behavior, and a number of other factors that impact a person’s risk status. After determining one’s risk status, the counselor will create a program of treatment in which the offender is required to comply with and maintain full contact. Should one violate any of the terms set forth by the Virginia ASAP program, they could be subjected to serving some or all of their suspended jail time.

11. I live out of state; can I do ASAP locally?

Virginia ASAPs will typically work with out-of-state individuals to make completion of the program relatively painless. While the decision is ultimately up to the ASAP counselor assigned to the case, it is not unusual for the staff to allow one to work with a similar agency in their home state.

12. I think I am guilty, why do I still need a Fairfax DWI attorney?

Even if you think one thinks they were driving drunk, experienced Virginia DWI lawyers may be able to help minimize resulting legal problems while maximizing opportunities to move ahead toward a brighter future. Working with a skilled criminal defense attorney helps to equalize the balance of power between the defendant and the prosecution, striving to preserve the constitutional rights that are guaranteed to all criminal defendants. Additionally, retaining a lawyer as well-versed with Fairfax courts as Faraji Rosenthall will be crucial in helping one avoid judges that typically issue the harshest sentences.

13. What will happen if a person under 21 is arrested for DWI in Fairfax?

Motorists under the age of 21 that are stopped for drinking and driving can be charged with a standard DWI, just like any other person can. However, law enforcement also has the option of assessing the driver with an additional charge. Often referred to a “baby DWI,” this makes it unlawful for any person under the age of 21 to operate any motor vehicle after illegally consuming alcohol and having a BAC of .02 or more.

A violation of this section is a Class 1 misdemeanor. Punishment includes a one-year loss of license and  a mandatory minimum fine of $500 or performance of a mandatory minimum of 50 hours of community service.

14.  What steps does the Law Office of Faraji Rosenthall take in preparing for a Fairfax DWI case?

Representation by our Virginia DWI lawyers begins with an intensive interview with the client about the details surrounding their arrest. It is essential to tell one’s attorneys as much information as possible, clearly describing both their actions as well as those of the arresting officer. Our skilled legal team will also review the court’s file to obtain additional information about what took place.

Once all of the details are compiled, we will analyze the constitutional aspects of the traffic stop as well as whether proper technical and legal procedures were followed while administering the BAC test. If law enforcement officials have violated any of the defendant’s rights or did not execute any sobriety test exactly to protocol, our Fairfax DWI attorneys will be sure to use that to our client’s advantage.

When a client’s court date arrives, our aggressive legal team will vigorously negotiate on the defendant’s behalf with the Fairfax Commonwealth Attorney assigned to handle the case throughout the entire trial, ensuring the full protection of one’s constitutional rights.

703-454-8402

Email faraji@fairfaxcriminallawyer.com

10560 Main Street • Suite 310 • Fairfax, Virginia 22030

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