DUI/DWI


DUI in Fairfax County


If you are on this page, you or someone you care about likely had a little too much to drink, and got caught while ending up behind the wheel on public property in a (not surprisingly) poor judgment call. Before you say it’s the end of the world, let’s take a look at what this all means.


“DUI” and “DWI” stands for “driving under the influence” and “driving while intoxicated”, respectively, and are synonymous in the Commonwealth of Virginia.


In the law, Virginia refers to driving as “operating” a motor vehicle, which in simple terms can be defined as changing the state of the vehicle to which you can move it. That, in addition to 1) having a BAC of 0.08 or higher while operating, 2) being “under the influence” of alcohol – or as Va. Code §4.1-100 defines it, consuming enough alcohol to affect your manner, disposition, speech, muscular movement, general appearance or behavior, as to be apparent to observation by others, 3) being under the influence of any drugs, 4) being under the influence of both alcohol and drugs combined, and 5) having at least 0.02 milligrams of cocaine per liter of blood, 0.1 milligrams of methamphetamine per liter of blood,  0.01 milligrams of phencyclidine per liter of blood, and 0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood can find you charged with DUI and in violation of Va. Code §18.2-266.


Law Enforcement Officers Making Stops and Arrests for DUI


Repeatedly (not a single instance) showing signs of failing to stay within or driving improperly within the lane, driving at unusual speeds or acceleration/deceleration rates, and showing improper judgment provides reasonable suspicion for a police officer to suspect driving under the influence and to conduct a stop.


If you have been arrested, the Commonwealth of Virginia will argue the officer had probable cause to do so and must then prove beyond a reasonable doubt that you were driving under the influence through your 1) driving behavior, 2) appearance and conduct, 3) performance on the voluntary field sobriety tests, 4) statements regarding your alcohol consumption, and 5) BAC as determined by a breath or blood test in order to find you guilty of DUI. Any, or all, of these factors can be used against you in court to obtain a conviction.


Penalties for DUI in Fairfax and Virginia


For the state of Virginia, the penalties for DUI increase and essentially add on to the previous punishment for each subsequent offense. The penalties are drawn out below.


For individuals charged with DUI for the first time, they can face a maximum punishment of 12 months in jail and/or a maximum fine of $2,500. Virginia demands that the guilty be fined a minimum of at least $250. Jail time as a mandatory minimum can depend on the BAC level; if the BAC was less than 0.14, then there is none. However, if the BAC was recorded at 0.15 to .20, the mandatory minimum jumps to five days in jail. If the driver had a minor 17 years old or younger within the vehicle, the driver faces harsher punishments for putting them in danger. This entails additional $500 – $1,000, as well as mandatory five days in jail (added).


For a subsequent second conviction within 5 years of the first one, the mandatory minimum jail sentence becomes 20 days, regardless of the BAC, whereas if this second conviction comes from an extended period of 5 to 10 years of the first, the minimum jail sentence is 10 days. If convicted, in order to fall under this criteria, the dates of the two offenses must be committed within 5 years of each other, and not the convictions. For having a BAC of .15 to .20, the law requires an additional 10 days in jail, or an additional 20 days instead if the BAC was 0.21 or higher. Transporting a minor 17 years old or younger will add an extra 5 days to the total.


The fines include a mandatory minimum of $500 for a second conviction, plus $500 more if the BAC was found to be 0.15 or higher. The presence of a minor will add $500 – $1000 to the total.


A third conviction means an automatic elevation to a felony charge, and the penalties are dramatically increased. If they are convicted and the second and third offense dates are within 5 years of each other, the convicted will face 6 months in jail mandatory. With the felony DUI offense, 5 days of jail time are added for the transportation of a minor, but no additional time is added for the BAC level.


If the third conviction came within 5 – 10 years of the second, the mandatory minimum jail sentence becomes 90 days. Again, there is no additional jail time for the BAC level but 5 days will be added if a minor is in the picture.


Any other further convictions related to DUI following a felony DUI results in a mandatory minimum of one year in jail, with a minimum fine of $1,000. Transporting a minor adds $500 – $1,000 to the fine.


If convicted (whether it be the first time or not), not only can they spend time behind bars and their wallet hurt, but it can also have an effect outside of those punishments. Monitored good behavior for at least 12 months, alcohol/drug safety education programs with treatment, and a permanent criminal record without the possibility of expungement can affect the convicted’s life going forward.


Common Defense Strategies


Based on the details of your case, DUI Attorney Joseph Yoon will determine and consult with you the best plan in fighting a conviction. Listed below are just some of the common defense strategies that could be used to combat those factors used in court and drop the charges:


  • No Reasonable Articulable Suspicion to Stop – Police officers need reasonable suspicion that you are breaking a law in order to make a traffic stop. If the evidence can show that the officer had no reasonable suspicion in conducting the traffic stop, then the stop can be deemed unconstitutional, and the charges will be dropped.
  • No Probable Cause for Arrest – Arrests can not be made without probable cause. If the evidence can show that the officer had no probable cause in making the arrest, then the arrest can be deemed unconstitutional, and the charges will be dropped.
  • Accused Was Not Operating the Vehicle – Under the state code definition of “operating”, if the evidence shows you were not operating the vehicle in any form, this can be argued to have the charge dismissed.
  • BAC for Alcohol Less than 0.08 – If you are charged under subsection (i) for operating under a BAC higher than 0.08 when the evidence suggests that your BAC was actually less, then the charge must be dismissed.
  • No Impairment to Safely Operate – If you are charged under subsections (iii) and/or (iv), and the evidence suggests you were not under the influence enough to affect your ability to operate the vehicle safely, then the charges may be dismissed.
  • Field Sobriety Tests (“FST”s) Improperly Administered – The only field sobriety tests that can prove intoxication are horizontal gaze nystagmus, walk-and-turn, and the one-leg-stand. If you had participated in any of these field sobriety tests, but they were not conducted in the proper methods or manners, then the charge can be dropped if it was the only source of evidence without any others.
  • Post-Operating Absorption of Alcohol and/or Drugs – This is commonly referred to as the “rising BAC defense”. If the breath/blood tests administered after your operating of a vehicle indicate a BAC higher than what it may have been during the time of your operating, then it may be concluded that you had operated the vehicle before the alcohol/drugs were absorbed into your system and before you became intoxicated, and the courts may dismiss the case.
  • Margin of Error for Breath/Blood Test is Greater Than 10% – Even breath/blood tests used to determine BAC can at times be faulty. If it can be proven that the margin of error in the test was greater than 10%, than the evidence will be considered too unreliable for trial. If the test is the only piece of evidence, the charges may be dismissed.

Strong prosecution on DUI charges? Find stronger legal defense.


Due to the significantly greater risk of danger that you put not only yourself in, but others on the road as well while driving impaired, this charge is heavily prosecuted in Virginia. With Virginia averaging 243 deaths from drunk driving incidents per year from 2006 – 2010, there is no wonder driving while intoxicated is not taken lightly in the courts. DUI cases are typically difficult to dispute and find much leniency in, but legal consultation can be a start in finding the best strategy.


DUI cases are complex. Don’t assume, and don’t take the chance that because you might think there is compelling evidence, that you will be found guilty and meet the full extent of the punishments. As listed above, being convicted of DUI is not as simple as you would think. Just because you blew higher than 0.08, or the officer believed the stop/arrest was justified, may not necessarily mean you will be convicted.


Not in Fairfax County? No problem.


Yoon Law Firm, PLLC, located in Fairfax, VA deals with DUI cases in:

Fairfax City 

Alexandria City
Town of Herndon
Town of Vienna
Loudoun County
Prince William County
Manassas City
Arlington County
City of Falls Church
United States District Court for the Eastern District Alexandria Division