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What is the Difference Between DUI and DWI in Virginia?

Driving while intoxicated (DWI) and driving while under the influence (DUI) are serious criminal charges in Virginia. Many people use DWI and DUI interchangeably when discussing drunk driving, but they are different criminal charges with different requirements and penalties. Understanding the differences between them can be confusing. However, if you have been arrested for drunk driving in Lynchburg, it is important to understand the difference between DUI and DWI. 


A defendant can face DWI charges for driving a motor vehicle with a blood alcohol content (BAC) of .08% or higher. Whether or not a suspect appears intoxicated is irrelevant for DWI charges. Proving a DWI is more straightforward than proving a DUI because it involves a chemical test with an objective standard. 

On the other hand, a defendant can face DUI charges regardless of his or her BAC content. A DUI simply means driving under the influence of alcohol or some other type of intoxicant substance. You must have consumed enough of the substance for it to observably affect your speech, manner, muscular movement, disposition, and general appearance.

As long as the alcohol consumption impairs a person’s ability to drive, prosecutors can bring criminal charges. What does this mean? Even if you take a blood alcohol test and your BAC is under the legal limit of .08%, you can still face criminal DUI charges. 

The Penalties for DUI and DWI Charges

Virginia has some of the strictest drunk driving laws in the United States. Virginia does not provide an alternative sentencing option for defendants hoping to avoid a drunk driving conviction. The only way to avoid a conviction in Virginia is to hire an experienced criminal defense lawyer. Your defense lawyer will be able to investigate your case and develop a compelling legal defense strategy.

Under the laws of some states, DUI charges are less severe than DWI charges. However, in Virginia, a defendant can face the same DUI penalties as for a DWI charge. Defendants can face the following penalties for a first-time DUI or DWI:

  • A jail sentence of up to 12 months, including a mandatory minimum sentence of at least five days when your BAC was at least .15%. 
  • The mandatory minimum sentence for a first-time defendant with a BAC of .2% or higher, the defendant will face a mandatory minimum prison sentence of at least 10 days
  • A fine between $250 and $2,500
  • The suspension of your driver’s license for up to a year

What to Do if You are Stopped by a Police Officer for a DWI or DUI

What you do after being pulled over by a law enforcement officer is important. It could mean the difference between facing a DWI charge and a DUI charge. Remember, law enforcement officers can charge you with a DUI even if your BAC level is under 08%. Suppose an officer notices that you are slurring your speech, have bloodshot eyes, or exhibit any other signs of intoxication. In that case, they will have the probable cause necessary to arrest you. 

The first step you can take after being stopped by the police is to cooperate while protecting yourself. We recommend that you remain cordial and non-combative. We also recommend that you stay quiet and do not provide any more information than necessary to law enforcement officers. You have the right to remain silent, and you should use that right. After you have been arrested, you also have the right to have an attorney present with you when law enforcement officers question you.

Taking a Field Sobriety Test

If a law enforcement officer notices that you are slurring your speech or showing any other signs of intoxication, they may ask you to step out of your vehicle and provide a field sobriety test. Taking a field sobriety test is optional and voluntary. Law enforcement officers will use the results of these tests to determine whether they have enough probable cause to arrest you. You do not have to agree to take a field sobriety test. These tests occur while on the side of the road and typically include one or more of the following:

  • Alphabet test
  • Counting test
  • Nine-step walk and turn
  • One-leg stand
  • Finger to nose test 
  • Follow a pen with your eyes (Horizontal Gaze Nystagmus Test)
  • Finger dexterity test

Breath Tests and Implied Consent

Under Virginia law, roadside breath tests are voluntary, and the law enforcement officer must tell you so. You have the right to refuse to take a roadside breath test, also known as a preliminary breath test. Law enforcement officers usually try to talk you into taking the breathalyzer test on the side of the road. That may be true, but the test will also establish probable cause for the person’s arrest, making it impossible for your defense lawyer to make that defense for you. Before administering the test, the law enforcement officer must tell you:

  • They cannot use the test against you in a DUI prosecution
  • You have the right to observe the DUI process, and you have a right to see the result of the test if you request to observe
  • You have the right to refuse the test

Drivers cannot refuse to take a breath test back at the police station without severe consequences. If you drive in Virginia, you offer your implied consent to taking a breath test at the police station through an intoximeter. If you refuse this test, you will be charged with the crime of unreasonable refusal. 

Contact a Virginia DUI/DWI Lawyer

DUI and DWI charges are serious in Virginia. If you are facing one of these charges, you need an experienced criminal defense lawyer on your side. Contact us today to schedule your initial consultation to learn how we can advocate for your rights. 

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