Federal DUI – DWI Law in Virginia | A criminal defense lawyer’s explanation of issues related to DWI arrests and Refusal to Take a Breath Test

This article is written by a criminal defense attorney licensed to practice law in the Federal Courthouse in the United States District Court in the Eastern District of Virginia in Alexandria. This article contains detailed and easy to understand explanations of the various laws, penalties, and defenses for Federal DUI / DWI charges in Virginia. Particularly, this article covers the various penalties associated with DUI / DWI charges and the legal issues which will be raised in court.

Which Law Applies / Which Court Has Jurisdiction: Federal or Virginia?

If your DUI / DWI arrest took place on a road owned by the Federal government, then you will be prosecuted in a Federal court. If your DUI / DWI arrest took place on a road owned by the Virginia state government, then you will be prosecuted in a city or county court in which the road lies.

A Federal courthouse will imbibe the laws of the land on which it sits. So a Federal courthouse located in Alexandria, Virginia will take on most of the laws of Virginia, with some minor exceptions. Thus, if your DUI / DWI arrest took place on federally owned property, including military bases or other government-owned lands or roads, such as the GW Parkway and the Pentagon parking lot, the United States District Court for the Eastern District of Virginia in Alexandria will apply the law of Virginia to guide DUI / DWI punishment.

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Federal DUI / DWI Law for Arrests Which Took Place on Land Owned by the National Park Service

The most common exception to the application of Virginia law instead of Federal law is being arrested in a national park. DUI charges which took place on National Park Service land are governed by the Code of Federal Regulation instead of Virginia law. Drinking and driving on land owned by the National Park Service is a Class B misdemeanor and can carry up to $5,000 in fines, suspension of your driver’s license, and up to six months in jail.

Title 36: Parks, Forests, and Public Property – CHAPTER I: NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR -PART 4: VEHICLES AND TRAFFIC SAFETY – 4.23 – Operating under the influence of alcohol or drugs.

(a) Operating or being in actual physical control of a motor vehicle is prohibited while:
(1) Under the influence of alcohol, or a drug, or drugs, or any combination thereof, to a degree that renders the operator incapable of safe operation; or
(2) The alcohol concentration in the operator’s blood or breath is 0.08 grams or more of alcohol per 100 milliliters of blood or 0.08 grams or more of alcohol per 210 liters of breath. Provided however, that if State law that applies to operating a motor vehicle while under the influence of alcohol establishes more restrictive limits of alcohol concentration in the operator’s blood or breath, those limits supersede the limits specified in this paragraph.

(b) The provisions of paragraph (a) of this section also apply to an operator who is or has been legally entitled to use alcohol or another drug.

(c) Tests.
(1) At the request or direction of an authorized person who has probable cause to believe that an operator of a motor vehicle within a park area has violated a provision of paragraph (a) of this section, the operator shall submit to one or more tests of the blood, breath, saliva or urine for the purpose of determining blood alcohol and drug content.
(2) Refusal by an operator to submit to a test is prohibited and proof of refusal may be admissible in any related judicial proceeding.
(3) Any test or tests for the presence of alcohol and drugs shall be determined by and administered at the direction of an authorized person.
(4) Any test shall be conducted by using accepted scientific methods and equipment of proven accuracy and reliability operated by personnel certified in its use.
(d) Presumptive levels. (1) The results of chemical or other quantitative tests are intended to supplement the elements of probable cause used as the basis for the arrest of an operator charged with a violation of paragraph (a)(1) of this section. If the alcohol concentration in the operator’s blood or breath at the time of testing is less than alcohol concentrations specified in paragraph (a)(2) of this section, this fact does not give rise to any presumption that the operator is or is not under the influence of alcohol. (2) The provisions of paragraph (d)(1) of this section are not intended to limit the introduction of any other competent evidence bearing upon the question of whether the operator, at the time of the alleged violation, was under the influence of alcohol, or a drug, or drugs, or any combination thereof.

Virginia DWI / DUI & Drunk Driving Laws
Virginia Law 18.2-266 criminalizes a DUI as follows: (1) driving while under the influence of alcohol, (2) driving while under the influence of any narcotic drug or intoxicant, (3) driving with a blood alcohol content level of .08 percent or higher.

Getting caught Driving Under the Influence in Virginia is a very serious crime. Almost any amount of alcohol in your system can result in a DUI charge. While most charges for drunk driving will have a Blood Alcohol Content (BAC) level of .08 or higher, that’s not required under Virginia law. A BAC level below .08 can still result in a conviction.

Virginia VA Code 18.2-269 goes on to clarify that when the BAC level is .08 or higher, the court will presume that the accused was under the influence. This means that when you step into a Courtroom with a DUI case in which a BAC is .08 or above, you are already presumed to have been driving under the influence … and it’s up to you and your lawyer to show otherwise! That tends to be a much heavier burden on people than they can ever expect.

When the BAC level is between.05 and .08 there is no such presumption and the prosecutor needs to prove beyond a reasonable doubt that you were driving while intoxicated. And, when the BAC is .05 and below, the court will presume that you were not under the influence and it will be up to the prosecutor to prove your intoxication by other evidence.

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Prior DUI / DWI convictions will be used to 1) increase your DUI from a misdemeanor to a felony if its a 3rd or subsequent offense within 10 years, or 2) impose higher penalties at sentencing for your new DUI conviction, or 3) add a mandatory minimum sentence to your new conviction.

A common question is can a previous out-of-state DUI or DWI convictions be used against you in court as previous conviction? The short answer is yes. While the convictions for the previous DUI charge must have been based on similar criminal laws, generally, DUI convictions from other states can be used to convict you of a second, third, fourth or subsequent DUI offense in Virginia and you would have to serve the minimum required jail sentence.

While the punishments outlined above are the minimum possible punishments for each variation of a Driving Under the Influence offense, the judge may impose the maximum penalties. It is undoubtedly important for you to trust your attorney and be comfortable with your defense. The importance of your first DUI defense is utmost – as you can see how a second or subsequent offense can easily guarantee you jail time.

Virginia law has recently been changed in VA Code 18.2-266.1. Persons under the age of 21 who are caught driving after illegally consuming alcohol with a BAC between .02 and .07 will be charged with a Class 1 misdemeanor DUI. Punishment must include forfeiture of drivers license for 1 year from date of conviction and mandatory minimum fine of $500 or 50 hours of community service. If your BAC was above .08, then even being a minor won’t save you from the 18.2-266 punishment.

Virginia law has something known as implied consent driving law. This means that you consent to your blood or breath being tested if you are ever arrested for a DUI in Virginia. Virginia punishes refusals to take the tests under Virginia VA Code Section 18.2-268.3 as “unreasonable refusal” to have samples of his blood or breath taken for chemical tests to determine the alcohol or drug content of your blood after a drunk driving arrest as required by Virginia VA Code Section 18.2-268.2. The term “unreasonable” here is really insignificant since almost all refusals are deemed unreasonable.

The implied consent law of post-arrest testing to determine drug or alcohol content of blood is codified in Virginia VA Code Section 18.2-268.2. This law imposes on all drivers passing through Virginia the burden of having to submit to blood or breath analysis upon arrest for DUI, as long as the blood or breath test is offered within 3 hours of the arrest for the drunk driving offense. This consent law is considered a condition of operating your vehicle in Virginia.

Your first refusal crime is considered a civil offense, and not a criminal one under Virginia VA Code 18.2-268.3. However, the penalty is steep. The refusal charge on its own carries a 1 year driver’s license suspension. If, however, you have had a DUI conviction or another refusal conviction in the 10 years prior to your refusal, then the refusal is in fact a crime – a Class 2 misdemeanor, punished by up to 6 months in jail and a $1,000.00 fine. If you had 2 previous convictions for either DUI or refusal, then the refusal will be punished as a Class 1 misdemeanor – with up to 1 year in jail and a $2,500.00 fine.

If you hit someone with your car while you were driving intoxicated, and you injure them seriously, you can get convicted under VA Code 18.2-51.4. Your driving behavior must have been so reckless that it can be interpreted to have disregarded the value of human life.This is a class 6 felony punishable by up to 5 years in jail. Additionally, you will lose your driving privileges indefinitely.

In Virginia, anyone convicted of a misdemeanor DUI by a judge in General District Court has a guaranteed automatic right to appeal the DUI conviction within 10 days of the conviction. The appeal is heard in the Circuit Court – a court of record. At the appeal, the defendant gets a brand new trial and the conviction result from the court below is automatically discarded. At the appeal, the defendant has an opportunity to choose to be heard by another judge or to have the case head by a jury instead. The important decision factor is that in Virginia, a jury both determines the verdict and also sentences if the verdict is guilty. Thus, it is important to discuss your case with a lawyer to determine which option is strategically more advantageous for your particular set of facts.

If a cop stops you and finds an open container of alcohol in your vehicle, together with some evidence that you were consuming alcohol, there is a rebuttable presumption that you were driving and consuming alcohol at the same time. Which means that you and your lawyer have to prove otherwise -the burden of the case shifts to the accused. The crime is charged as a class 4 misdemeanor.

Gibson v. Commonwealth, Va: Court of Appeals 2011

Ray Anthony Gibson (“Gibson”) appeals his conviction for driving under the influence, third offense, in violation of Code § 18.2-266. Gibson contends that the trial court erred in denying his motion to suppress testimony regarding his field sobriety tests. For the reasons that follow, we affirm the decision of the trial court.


In reviewing the denial of a motion to suppress, we view the evidence in the light most favorable to the prevailing party below, in this case the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. See Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). So viewed, the evidence demonstrates that, on December 19, 2008, Officer Aaron Will initiated a traffic stop on a vehicle driven by Gibson. After obtaining Gibson’s identification, Officer Will determined that Gibson’s license had been revoked for being a habitual offender. As a result, Officer Will arrested Gibson and placed him in the back of his patrol car. Officer Will then sat in the front seat of his patrol car and began to fill out the paperwork necessary to have Gibson’s vehicle towed.

While filling out the paperwork, Officer Will detected the odor of alcohol coming from the backseat where Gibson was seated. Officer Will asked Gibson if he had been drinking, to which Gibson responded that he had consumed three beers.

Suspecting that Gibson had been driving under the influence of alcohol, Officer Will had Gibson exit the vehicle to perform field sobriety tests. Prior to administering the field sobriety tests, Officer Will asked Gibson whether he had any physical problems. In response, Gibson informed Officer Will that he had a problem with his right knee.

Officer Will administered three tests: a horizontal gaze nystagmus test, a one-legged stand test, and a nine-step walk and turn test. Before the one-legged stand test, Officer Will advised Gibson that, in light of his right knee problem, Gibson could choose which leg he used to perform that sub-test. According to Officer Will, Gibson was unable to successfully perform any of the tests.

Officer Will then offered Gibson the opportunity to take a preliminary breath test, which Gibson accepted. Based on his observations, Officer Will transported Gibson to jail, where Officer Will administered a breath test. The test indicated that Gibson had a blood alcohol content of .17.

Gibson was subsequently charged with driving after his license had been revoked and driving under the influence of alcohol, third offense. Prior to trial, Gibson moved to suppress any statements he made and the field sobriety tests on the grounds that he was not read his Miranda warnings after he was initially arrested for driving after his license had been revoked.[1]

On July 29, 2009, the trial court heard the suppression motion in conjunction with the Commonwealth’s evidence. After hearing the evidence, the trial court granted Gibson’s motion to suppress with regard to any statements Gibson made regarding consumption of alcohol while he was in custody,[2] but denied the motion with respect to the field sobriety tests. Gibson was then found guilty of driving after his license had been revoked and driving under the influence of alcohol, third offense.

Gibson appeals.


As always, “[t]he defendant bears the burden of establishing that the denial of his suppression motion was reversible error.” Glenn v. Commonwealth, 275 Va. 123, 130, 654 S.E.2d 910, 913 (2008). Here, Gibson argues that the trial court erred in admitting testimony about the field sobriety tests into evidence. According to Gibson, parts of the field sobriety tests constitute interrogation, namely the question used to validate the tests (i.e., whether Gibson had any physical problems), therefore the field sobriety tests as a whole are testimonial. As such, he contends that any testimony about the field sobriety tests should be excluded as a result of Officer Will’s failure to read Gibson the necessary Miranda warnings prior to initiating the field sobriety tests. We disagree.

The Fifth Amendment to the United States Constitution guarantees that no “person . . . shall be compelled in any criminal case to be a witness against himself.” In Miranda v. Arizona, 384 U.S. 436, 478-79 (1966), the United States Supreme Court extended the Fifth Amendment privilege against self-incrimination to individuals subjected to custodial interrogation by the police.

Under Miranda, before a suspect in police custody may be questioned by law enforcement officers, the suspect must be warned that he has a right to remain silent, that any statement he makes may be used as evidence against him, and that he has a right to have an attorney, either retained or appointed, present to assist him.

Dixon v. Commonwealth, 270 Va. 34, 39, 613 S.E.2d 398, 400 (2005). Failure to give Miranda warnings prior to a custodial interrogation violates the accused’s rights under the Fifth Amendment; therefore, “[s]tatements obtained by law enforcement officers in violation of [the Miranda] rule generally will be subject to exclusion for most proof purposes in a criminal trial.” Id.

There are, however, limits to the protections offered by the Fifth Amendment. Notably, the right against self-incrimination “applies only when the accused is compelled [1] to make a testimonial communication [2] that is incriminating.” Fisher v. United States, 425 U.S. 391, 408 (1976) (emphasis added). For a communication to be considered testimonial, the speaker (or actor) must “reveal, directly or indirectly, his knowledge of facts relating him to the offense or . . . share his thoughts and beliefs with the Government.” Doe v. United States, 487 U.S. 201, 213 (1988). Generally, a “testimonial communication” involves a verbal or written statement, but it may also include acts. See id. at 209 (holding that nonverbal conduct contains a testimonial component whenever the conduct communicates the actor’s thoughts or beliefs to another).

A compelled act “which makes a suspect or accused the source of `real or physical evidence'” is not generally considered a testimonial communication. Schmerber v. California, 384 U.S. 757, 764 (1966). “[C]ompelling the accused merely to exhibit his person for observation . . . prior to trial involves no compulsion of the accused to give evidence having testimonial significance.” United States v. Wade, 388 U.S. 218, 223 (1967). Rather, it is merely “compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have.” Id. This removes from the Fifth Amendment’s protection a multitude of compelled acts that, while leading to the discovery of incriminating evidence, do not themselves make an incriminating factual assertion.[3] For example, the Fifth Amendment “offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.” Schmerber, 384 U.S. at 764. Similarly, we have held that a compelled breath test, like other compelled acts, does not violate the Fourth or Fifth Amendments because, as with blood, the alcohol content in a person’s breath is not testimonial. Rowley v. Commonwealth, 48 Va. App. 181, 184, 629 S.E.2d 188, 190 (2006) (citing Schmerber, 384 U.S. at 765).

In the present case, neither the physical components of the field sobriety tests nor Gibson’s inability to perform them constitute a testimonial communication. None of the three tests compelled Gibson to reveal his knowledge, thoughts, or beliefs; rather, they only required him to exhibit certain physical characteristics. Indeed, we note that both the one-legged stand component and the nine-step walk and turn component are synonymous with assuming a stance and walking, actions the Supreme Court has specifically recognized as non-testimonial communications. See Schmerber, 384 U.S. at 764. Moreover, the majority of the states that have addressed this issue have ruled similarly. See, e.g., State v. Devlin, 980 P.2d 1037 (Mont. 1999); State v. Whelan, 728 So. 2d 807 (Fl. Dist. Ct. App. 1999); State v. Nielsen, 936 P.2d 374 (Or. Ct. App. 1997); State v. Theriault, 696 P.2d 718 (Ariz. Ct. App. 1984); Commonwealth v. Brennan, 438 N.E.2d 60 (Mass. 1982); People v. Ramirez, 609 P.2d 616 (Colo. 1980).

Gibson further argues that Officer Will’s question regarding whether he had any physical problems was a custodial interrogation designed to validate the field sobriety test and, as such, his response, that he had a problem with his right knee, should have been suppressed along with the physical components of the field sobriety tests.[4] We disagree.

The Supreme Court has defined interrogation for Miranda purposes as pertaining to “express questioning” as well as “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 300 (1980). In Pennsylvania v. Muniz, 496 U.S. 582 (1990), the Supreme Court recognized two exceptions to this definition of interrogation. The first is the “`routine booking question’ exception which exempts from Miranda’s coverage questions to secure the `biographical data necessary to complete booking or pretrial services.'” Id. at 601 (citations omitted). The second exception applies to inquiries “necessarily `attendant to’ [a legitimate] police procedure.” Id. at 603-04. In Muniz, the Supreme Court specifically applied the second exception to police inquiries into whether a suspect understood instructions on how to perform a field sobriety test.

The “physical problems” question is sufficiently analogous to asking whether Gibson understood Officer Will’s instructions as to how each test is to be performed. Both questions are clearly meant to assure the validity of the test and not to elicit an incriminatory response. See id.

At least one state has similarly recognized that inquiries intended to assure the validity of a legitimate police procedure fall under the “necessarily attendant to a legitimate police procedure” exception. In State v. Blouin, 716 A.2d 826, 830 (Vt. 1998), the Supreme Court of Vermont examined whether a question designed to assure the accuracy of a breath test[5] was “designed to elicit an incriminating response from the defendant” and was therefore a custodial interrogation.[6] The court held that the question was not an interrogation, stating:

In Muniz, 496 U.S. at 603-04, the United States Supreme Court upheld the introduction of responses to “limited and carefully worded inquiries” as to whether a motorist understood instructions to a physical sobriety test, even after that individual was in custody and entitled to Miranda warnings. The Court reasoned that the inquiries were “necessarily `attendant to’ the police procedure,” and were “not elicited in response to custodial interrogation.” Id. We find the [inquiry at issue] analogous to the inquiry at issue in Muniz.

* * * * * * *

Defendant consented to the administration of a breath test. The [inquiry at issue] is designed to help assure the accuracy of the test—an objective as significant to the suspect as to the State. In and of itself, there is nothing incriminating about defendant’s response: if defendant had answered yes to the question, the officer would have merely waited another fifteen minutes to obtain accurate test results. In short, the [inquiry at issue] is not interrogation.

Id. at 829-30.

We find the analysis of the Supreme Court of Vermont persuasive. It is axiomatic that assuring the accuracy of the field sobriety test is just as significant to Gibson as it is to the Commonwealth. See id. at 830. Indeed, had Officer Will not asked the question, there was the potential that Gibson would have attempted to perform the one-legged stand on his injured leg, increasing his chances of failing the test. We further note that, in and of itself, there was nothing incriminating in Gibson’s response to the question.[7] As with the list of compelled acts referred to in Schmerber, while the statement might lead to the discovery of incriminatory evidence, the statement itself does not make an incriminating factual assertion. Schmerber, 384 U.S. at 764. The fact that Gibson has a bad right knee had no direct bearing on his prosecution for driving under the influence, third offense. As such, there was no violation of Gibson’s right against self-incrimination.


Officer Will’s failure to read Gibson his Miranda warnings prior to administering the field sobriety tests did not require the suppression of the results of the field sobriety tests. As none of the physical components of the field sobriety tests involved testimonial communication, Gibson’s physical performance during the field sobriety tests was not protected by the Fifth Amendment. Similarly, Officer Will’s question about whether Gibson had any physical problems, and Gibson’s response thereto, were necessarily attendant to a legitimate police procedure: administering the field sobriety tests. The question was designed to assure the validity of the field sobriety tests and not to elicit, nor did it elicit, an incriminating response. Accordingly, the decision of the trial court is affirmed.


[1] Gibson further argued that the suppression of the statements and the field sobriety tests would necessarily require suppression of the breath tests as the field sobriety tests provided the probable cause justifying the implied consent to administer the breath test.

[2] Specifically, the trial court stated “as far as any incriminating statements once he is in custody, I do think that [Gibson’s] argument is correct.”

[3] Likewise, the refusal to perform tests that do not themselves constitute communicative or testimonial evidence is equally non-communicative and non-testimonial and therefore no constitutional violation occurs when the fact of a refusal is admitted into evidence. See South Dakota v. Neville, 459 U.S. 553, 564 (1983); Rowley v. Commonwealth, 48 Va. App. 181, 185-86, 629 S.E.2d 188, 190-91 (2006); Farmer v. Commonwealth, 12 Va. App. 337, 341, 404 S.E.2d 371, 373 (1991) (en banc).

[4] The Commonwealth argues that this portion of Gibson’s argument was not made to the trial court and is therefore waived. See Rule 5A:18. We find that the objection made at trial was sufficient to put this issue before the trial court to the extent that the question at issue was a component of the field sobriety test.

[5] In Blouin, prior to administering the breath test, the trooper asked the defendant whether he had “`burped, belched or vomited within the last fifteen minutes.’ The purpose of the question is to ensure that trace amounts of alcohol are not in the mouth which could render an inaccurate test result.” Id. at 827. The defendant initially replied that he had just burped, but corrected himself and said it was more than fifteen minutes ago. Id.

[6] We recognize that, unlike the present case, where Gibson was never given his Miranda warnings, the defendant in Blouin was read his Miranda warnings and invoked his right to remain silent before being asked the question at issue. Blouin, 716 A.2d at 827. Such a difference is without distinction, as the issue in both cases is the same: whether the officer’s question amounted to a custodial interrogation in violation of the defendant’s Fifth Amendment right against self-incrimination.

[7] In Muniz, the Supreme Court noted that requiring the accused to count out loud while performing the one-legged stand test and the walk and turn test may turn a field sobriety test into a custodial interrogation. Muniz, 496 U.S. at 603. In that situation, the question becomes whether the compelled communication was incriminating. As Gibson does not challenge whether he was required to count out loud during the field sobriety test, and indeed the record is unclear as to whether Gibson or Officer Will counted, we do not consider the issue at this time.

[notice]*This article is for your personal information only and is not intended as legal advice. Nothing herein shall create an attorney – client relationship. This area of the law is very complex. Every case is different and the information contained herein is general. This information is not intended to be legal advice. Nor is this material intended to replace consultation with a lawyer. Always consult a licensed lawyer for your particular case. Call 703.870.6868 for a consultation.[/notice] [hideit hide=”.tags”]