8.3 Punishments

• Library: Defense of Serious Traffic Cases in Virginia (Virginia CLE) (2020 Ed.)

8.3 PUNISHMENTS

8.301 Driving While Intoxicated. ¹²

A. First Offense. A first offense of driving while intoxicated is a Class 1 misdemeanor ¹³ punishable by a maximum 12-month jail sentence and a fine of up to $2,500. ¹⁴ The fine and jail sentence may be suspended except for mandatory minimum penalties provided by statute. The mandatory minimum fine is $250. ¹⁵ Conviction of a first-offense DUI also results in a 12-month license suspension. ¹⁶ Enrollment in and completion of VASAP is mandatory for a first-offense conviction unless waived by the court for good cause

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based on VASAP's recommendation that intervention is not appropriate. ¹⁷ As a condition of a restricted license, the offender is also prohibited from operating a motor vehicle not equipped with an ignition interlock system for at least six months but not to exceed the maximum revocation period. ¹⁸ Ignition interlock is a device that connects a motor vehicle ignition system to an analyzer that measures a driver's blood alcohol content and prevents the ignition from starting if the driver's BAC exceeds .02 percent. ¹⁹ Even if the court neglects to order ignition interlock for a first-time offender, the DMV will still enforce the ignition interlock requirement administratively. ²⁰ However, courts are not required to order the installation of an ignition interlock system when the DUI conviction is a first offense for driving under the influence of drugs under Virginia Code section 18.2-266(iii) or (v). ²¹

Any person pre-enrolling in an alcohol safety action program may also prequalify to have the ignition interlock system installed. The installation cannot be implemented until a court has issued a restricted license. This prequalification would allow a defendant whose conviction seems certain to schedule the installation appointment the day after the conviction. ²²

Under section 18.2-266.1, it is unlawful for any person under the age of 21 to operate a motor vehicle with a blood alcohol content of .02 percent or more. Violation of this section is a Class 1 misdemeanor. Punishment includes loss of license for one year from the date of conviction and a mandatory minimum fine of $500 or the performance of a mandatory minimum of 50 hours of community service. ²³ Any person convicted under section 18.2-266.1 is eligible, under the terms of section 18.2-271.1, to attend VASAP

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and may, at the discretion of the court, be issued a restricted license. ²⁴ A juvenile and domestic relations district court can only sentence the juvenile to the punishments contained in section 18.2-266.1(B). ²⁵

B. First Offense with High Blood Alcohol. A first-offense DUI conviction in which the driver's BAC was at least .15 percent but not more than .20 percent triggers a mandatory minimum jail term of five days. A first offense committed with a BAC above .20 percent results in a mandatory minimum jail term of 10 days. ²⁶

A first offense DUI is a Class 1 misdemeanor, ²⁷ which provides the court the discretion to sentence a client up to 12 months in jail for the offense. The court does not have the discretion to suspend any portion of a mandatory minimum sentence. If counsel for the defendant keeps the breath or blood certificate out of evidence, then the client would avoid the mandatory minimum jail sentence.

C. Second Offense. A second offense DUI is also a Class 1 misdemeanor, however, the conviction triggers certain mandatory sentencing provisions irrespective of the driver's BAC. A second offense committed within less than five years of a prior offense ²⁸ is punishable by a mandatory minimum fine of $500 and a confinement period of one month up to one year, 20 days of which may not be suspended by the court. ²⁹ If the second offense occurs between 5 and 10 years of a prior offense, the mandatory minimum jail period is 10 days and the mandatory fine remains $500. ³⁰ Enrollment in and completion of VASAP is also mandatory for a second offense unless waived by the court for good cause based on VASAP's recommendation that intervention is not appropriate. ³¹ An ignition interlock system is required and must be installed on every vehicle owned by or registered to the driver as a

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condition of restricted license. ³² If a second offense occurs after 10 years have elapsed since a prior offense, the defendant is only subject to a first-offense conviction. The period during which the offender is prohibited from operating a motor vehicle that is not equipped with an ignition interlock system is calculated from the date the offender is issued a restricted license by the court. However, that period is tolled upon the expiration of the restricted license issued by the court until the person is issued a restricted license by the DMV. ³³

In all second-offense convictions, the suspension period of the driver's license is three years. ³⁴ When the second offense occurs less than five years after the prior offense, the court may not grant a restricted license until 12 months into that three-year period, at which time the offender must be enrolled in VASAP ³⁵ and ignition interlock must be installed on all vehicles that are registered to or owned by the offender for at least six months without alcohol-related violations of the interlock requirements. ³⁶ All periods of license suspension or revocation imposed by section 18.2-271(B) run consecutively with any other period of suspension the driver may be under for previous DUI or refusal convictions.

When the second offense occurs five to 10 years after the prior offense, the court may grant a restricted license four months into the suspension period, as long as the offender is enrolled in VASAP. ³⁷ Ignition interlock must be installed on all vehicles registered to or owned by that individual and must remain in place for a minimum of six months without alcohol-related violations of the interlock requirements. ³⁸

D. Second Offense with High Blood Alcohol. Higher blood alcohol levels result in increased punishment. Violators whose BAC is at least .15 but not more than .20 percent receive an additional mandatory

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minimum sentence of 10 days; those with a BAC above .20 percent must serve 20 additional days. ³⁹ The enhancement for high blood alcohol levels also requires an additional mandatory minimum fine of $500, raising the mandatory fine at this level to $1,000. ⁴⁰ These sentences are in addition to the mandatory periods of confinement that apply to any second offense that occurs within 10 years of a prior offense.

E. Three or More Offenses Within 10 Years.

1. Third Offense. Conviction of a third offense of driving while intoxicated within a 10-year period is a Class 6 felony, ⁴¹ which is punishable by imprisonment of not less than one year nor more than five years, or by a fine of not more than $2,500 and/or imprisonment of not less than one year. ⁴² The jail term for a third-offense DUI is subject to a mandatory minimum sentence of 90 days; a third offense committed within five years of the two prior offenses is punishable by a mandatory minimum confinement of six months, not subject to suspension. The mandatory minimum fine is $1,000. ⁴³

2. Fourth or Subsequent Offense. A fourth or subsequent offense committed within a 10-year period results in a mandatory minimum term of imprisonment of one year and a mandatory minimum fine of $1,000. ⁴⁴

Upon receiving the record of conviction for any combination of three DUI offenses within a 10-year period or a felony DUI conviction, the Commissioner of the Division of Motor Vehicles (DMV) must revoke the offender's driver's license. ⁴⁵ A three-time offender's privilege to drive will be revoked indefinitely by the DMV administratively, even if all three of the predicate offenses were disposed of separately as first offenses. Three years after the date of the last conviction, the defendant is eligible to petition for a restricted license. The offender may, if certain conditions are met, petition

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the circuit court for full restoration of driving privileges five years after the date of the last conviction. ⁴⁶

Section 18.2-270(C)(2) enhances any subsequent DUI conviction that follows (i) a prior DUI manslaughter conviction, (ii) a prior DUI maiming conviction, or (iii) a prior felony DUI conviction to make the subsequent conviction a Class 6 felony. Because subsection (C)(2) does not include the 10-year look-back period, any of the listed offenses committed by the offender in his or her entire driving history would trigger this escalation in punishment. As in section 18.2-270(C)(3), subsection (C)(2) also provides for a mandatory minimum term of one year in prison and a mandatory minimum fine of $1,000. Since almost all defendants with a third-offense DUI conviction will already have a prior felony conviction, subsection (C)(3) may only apply in limited circumstances, such as when a defendant who has three prior DUI convictions was convicted of a first or second offense instead of the third offense. ⁴⁷

3. Noncitizen Criminal Convictions. If the client is not a citizen, there can be serious collateral consequences when a criminal conviction is entered. The rules governing this practice area are complex. For example, under federal immigration regulations, a noncitizen forfeits his or her temporary protected status (TPS) after a conviction of either one or more felonies or two or more misdemeanors. ⁴⁸ If counsel is not familiar with immigration issues, then it is vital for counsel to consult an immigration attorney to evaluate the possible consequences of a conviction before the entry of any plea or a final adjudication of the charges. ⁴⁹

A detailed discussion of the potential immigration consequences of serious traffic offense convictions for a noncitizen is beyond the scope of this chapter. However, counsel should be aware that the removal of the defendant from the United States is a possible outcome. The types of

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crimes that could...