How Does DWI Differ from DUI in Virginia?

In Virginia, both DWI (driving while intoxicated) and DUI (driving under the influence) are contained in the same statute.  They are punished in the same way.  However, what must be proven for each is very different.  

Virginia DWI and DUI are defined by code section 18.2-266. Under this code section, a DWI or DUI can be proven by showing that the person drove while:

  1. having a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath;
  2. such person was under the influence of alcohol;
  3. such person was under the influence of any narcotic drug or any other self-administered intoxicant or drug, or any combination of such drugs, to a degree which impaired their ability to drive;
  4. while such person was under the combined influence of alcohol and any drug or drugs to a degree which impaired their ability to drive;
  5. having a blood concentration of any of the following substances at a level that is equal to or greater than: (a) 0.02 milligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c) 0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood.

In short, 1 and 5 are DWI and 2, 3, and 4 are DUI.  Why? 

Virginia DWI

DWI involves a per se limit or level.  In other words, if you are an .08 blood alcohol level or .02 mg of cocaine at the time of driving, the law deems you to be guilty of DWI regardless of facts and circumstances.  It is en effect a strict liability provision. However, there are not per se limits for every drug.  For instance, there is no per se level for marijuana or THC.  Marijuana driving cases must be prosecuted under the DUID provisions.    

Virginia DUI

A person is guilty of DUI if they are under the influence.  A person can be found to be under the influence regardless of their blood alcohol level.  Therefore, a person could have a blood alcohol level below a .08, yet still be convicted of DUI if they are under the influence.  The Virginia Supreme Court has stated that a person is under the influence if their manner, speech, or disposition is effected.  For example, slurred speech, lack of balance, motor skill impairment, etc.  It is surprising to many people that Virginia does not have a lower limit for drunk driving.  A person can be convicted of DUI even though their blood alcohol level was below a .08 and they will be punished exactly the same as someone convicted of DWI. 

Proof of Operation is Broadly Interpreted

In addition to one of the above factors, the prosecution must also prove the accused drove or operated a motor vehicle.  It is important to note that Virginia appellate courts have defined operation extremely broadly. (Read More).  For example, even if a person is sleeping behind the wheel of the vehicle on the side of the road, they are deemed to be operating the vehicle if the ignition is in the on position. 

Consult a Fairfax DUI & DWI Defense Lawyer

If you would like to explore how the prosecutor might approach your case, contact a Fairfax Virginia DUI & DWI Defense Lawyer at 703-556-0004 or by using the Contact Us page.  

Kyle Manikas
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