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Answers to Common Questions About Drinking and Driving Matters

At Tillotson & Martin, our Coastal Virginia DUI attorneys have nearly 4 decades of experience. We know the nuances of DUI law and have trained other lawyers in this area. Additionally, we are well-informed and stay up-to-date with the latest technologies and methods used in these cases. Our team is committed to helping those accused of drinking and driving understand their charges, the judicial process, and potential outcomes.

Throughout our years of practice, we have been asked many questions about DWI matters – some more frequently than others. Read below for answers to a few of the more common questions. 

If you need further assistance, call us at (757) 568-7978 or contact us online today. We serve Coastal Virginia, including Hampton Roads and Newport News.


    • When is a DUI a felony?
      A DUI is elevated to a felony charge under more severe circumstances. Specifically, a DUI is considered a felony in Virginia if the offender has been convicted of three other DUI offenses within a 10-year period. This escalation from misdemeanor to felony highlights the legal system's efforts to deter repeat offenders and address the risks associated with drunk driving.
      Furthermore, other conditions can elevate a DUI to felony status, such as causing serious injury to another person while driving under the influence. Whether a DUI is a felony or a misdemeanor in Virginia hinges on these critical factors, underscoring the importance of understanding the state's DUI laws and the potential consequences of these serious charges.
    • How did I get charged with a DUI? My BAC was only .07.

      A common misconception is that a person can be charged with a DUI only if their BAC was at or above the legal limit of .08. However, the law says that a person is considered to be driving under the influence when their ability to operate a vehicle safely is impaired by drugs and/or alcohol regardless of BAC. Also, under the DWI statute, you’re not presumed sober unless you’re BAC was .05 or less.

    • Is a DUI a misdemeanor?
      Yes, for a first or second offense without aggravating factors, a DUI is typically considered a misdemeanor.
    • If my BAC was between .06 and .07, can I be convicted of a DUI?

      Because the law provides that impaired driving is illegal regardless of BAC, it’s possible to be convicted even if yours was below the legal limit. However, when a person has a BAC between .06 and .07, many prosecutors will offer to reduce the charge to “wet reckless.”

    • Is a DUI a misdemeanor or felony in Virginia?
      In Virginia, the categorization of a DUI as a misdemeanor or a felony depends on the specific circumstances of the offense and the offender's prior record.
    • What’s implied consent?

      Implied consent means that when you drive your vehicle on public roads in Virginia, you give your permission to be subject to a breath or blood test if you’re suspected of drinking and driving. Because of this, it may be a crime to refuse chemical tests given at a police station or jail.

    • If I’m convicted of a DUI, do I have to participate in VASAP?

      Yes. In Virginia, anyone convicted of a drinking and driving offense must complete a Virginia Alcohol Safety Action Program (VASAP), which is commonly referred to as ASAP. ASAP may be required even if your DWI was reduced to a reckless driving charge.

    • What’s a typical sentence for a first-time DUI conviction?

      The sentence you could face for your first DUI conviction depends on your circumstances and variations based on where your offense occurred.

      Below we’ll discuss the potential penalties for a drinking and driving charge levied when the driver:

      • Didn’t cause an accident
      • Wasn’t driving horribly
      • Didn’t have a passenger in the vehicle
      • Stopped quickly after being directed to do so
      • Was cooperative
      • Didn’t perform horribly on the Field Sobriety Tests
      • Had less than .14 grams/210 liters of breath test
      • Didn’t have a previous DUI
      • Had fairly clean driving and criminal records

      In this situation, the judge may impose the following:

      • 90 days in jail, all 90 suspended*
      • $500 fines, $250 suspended*
      • License revocation of 12 months
      • Eligible for a restricted license with the installation of an ignition interlock device for 6 months

      *suspensions based on 2 years’ good behavior, payment of all fines and costs, completion of VASAP

    • Why would an officer suspect I was drinking and driving?

      Officers are trained to look for specific cues to determine whether or not a person is driving under the influence.

      The driving behaviors officers look for include, but are not limited to:

      • Weaving between lanes
      • Driving too fast or slow
      • Stopping issues
      • Driving the wrong way
    • How much does ASAP cost?

      According to Virginia law, the fee for ASAP can be between $250 and $300. You’ll also have to pay for the classes, which must be at a “reasonable” cost. If your financial situation makes it difficult for you to pay, you can ask for a waiver or reduction in fees. You may also set up a payment plan with ASAP.

    • What are the specifics of education and treatment?

      If you’re referred to ASAP, you will have to complete education and treatment, which is handled by a treatment center or addiction program. Typically, the entry-level class costs $100. It generally consists of a 10-week course, with classes lasting 2 hours each.

    • What is FR 44 insurance?

      If you were convicted of a DUI, you are considered a “high-risk driver,” and you must be insured for twice the minimum limits required in Virginia.

      FR 44 limits are:

      • Bodily injury/death of one person $50,000
      • Bodily injury/death of two or more persons $100,000
      • Property damage $40,000

      Basically, FR 44 refers to the “Certificate of Financial Responsibility” form your insurance company must send to the Virginia Department of Motor Vehicles (DMV) to show you meet the coverage requirement.

    • What’s the difference between bail and bond?

      If you’re arrested for a crime, you may be jailed until your trial. If you’re released from custody before the trial, that’s called “bail.” While you’re out on bail, you must adhere to whatever court orders the judge imposed on you.

      In some DUI cases, you may initially be denied bail. If that happens, you must remain locked up until your trial. Your attorney can appeal the decision and help craft the conditions that a judge would accept to let you out of jail.

      “Bond” is the money you pay to be released from jail.

    • I was charged with underage possession of alcohol but didn’t have any on me. How did that happen?

      In Virginia, it’s illegal for a person under 21 years of age to “consume, purchase, or possess” alcohol or attempt to do such. Because of how the law is written, you don’t need to have the substance on you to be charged with possession. If you drank alcohol, technically, you possessed it. Also, if you told the officer you consumed alcohol, that may be enough to charge and/or convict you of possession.

      When possession is based on an underage person having consumed alcohol, unique defenses can be raised. One of which is challenging the venue (the court) in which the case is heard.

    • If I was sentenced to jail, can I serve my time on weekends?

      If you work or have other obligations during the week, jail can cause a real hardship. Virginia law allows for jail time imposed for a misdemeanor conviction to be served on weekends.

      The judge will consider numerous factors before deciding whether or not to allow weekend jail time. These include:

      • Whether the jail has a weekend program and space for the defendant
      • Whether the judge allows weekend time
      • Whether the defendant has a job that will be affected by weekday jail time
      • Whether the prosecutor or arresting officer objects to weekend time

      If you’re granted “jail weekends,” the nature of your time can vary based on the facility. You may or may not have to stay overnight. For instance, you can be assigned a weekend work program that you complete during the day. You can also be required to remain in jail from Friday night to Sunday night (or whatever nights the jail runs its weekend program).

    • I’m on a weekend jail program. Can I drive there?

      If you were convicted of a DUI and granted a restricted driver’s license, Virginia law allows you to drive to weekend or non-consecutive jail time. You must ask the judge for authorization for such driving, and they may require that you have an ignition interlock device installed on your vehicle.

    • What’s a restricted driver’s license?

      If you’re arrested for or convicted of a DUI, your driving privileges may be suspended. Meaning you won’t be able to drive anywhere. You may apply for a restricted driver’s license, which would allow you to travel to and from specific places.

      If your request for a restricted driver’s license is approved, the amount of time you’ll have to drive on it depends on your DWI conviction:

      • If you’re convicted of a first-time DUI, your driver’s license will be suspended for 1 year, and you can drive on a restricted license for that period.
      • If you’re convicted of a second DWI within 5 years of the previous, your driver’s license will be revoked for 3 years. You won’t be allowed to drive for the first of suspension. You can drive on a restricted license for the remaining 2 years.
      • If you’re convicted of a second DWI within 5 to 10 years of the previous, your driver’s license will be suspended for 3 years. You cannot drive for the first 4 months of suspension. You can drive on a restricted license for 2 years, 8 months.
    • If I have to drive for work, is a restricted license guaranteed?

      Although many judges will grant a restricted license when the law allows, they will consider the totality of the circumstances before making their decision. For instance, if you were said to have been “belligerent” during your arrest, the judge may not approve your restricted license. Thus, it’s not guaranteed that because you have a job, you’ll be granted this privilege.

    • What happens if I drink alcohol and drive on a restricted license?

      Virginia Code provides that it’s illegal for a person to have a BAC of .02 or higher while they are driving on a restricted driver’s license. If you violate this law, you could be charged with a Class 1 misdemeanor, which carries conviction penalties that include up to 12 months in jail and/or a maximum fine of $2,500.

      Additionally, if you’re found guilty, you’ll lose your driving privileges for 1 year and won’t have the opportunity to get a restricted driver’s license during that period.