A person under 21 years old who is stopped for driving under the influence can be charged with a standard DWI/DUI (under code section 18.2-266), just as any other person can. There is no minimum age limit for a charge under 18.2-266. If charged with standard DWI or DUI, someone 18 to 21 years old would face the same penalties as someone over the age of 21. However, if the person is under the age of 18, they would be treated as a juvenile and subject to the penalties that judges have at their disposal for juveniles - even if charged with standard DWI or DUI. A Fairfax Virginia Juvenile DUI DWI Defense Lawyer can explain those penalties. However, the officer also has the option of charging the underage driver under code section 18.2-266.1, often referred to a “baby DUI”, even if the person is 18 and not a juvenile.
What is a "Baby DUI" under Virginia Code 18.2-266.1?
18.2-266.1 makes it “unlawful” for any person under the age of 21 to operate any motor vehicle after illegally consuming alcohol and having a blood alcohol concentration ("BAC") of 0.02 percent or more. A .02 BAC is essentially one beer for the average person. There is no requirement that the person be impaired, "buzzed", or show any deficiencies on the field sobriety tests. The statute is in effect a strict liability statute.
Penalties for Underage DWI / DUI In Virginia
A violation of this section is a Class 1 misdemeanor. Punishment includes (i) a 12 month loss of license and (ii) a mandatory minimum fine of $500 or performance of a mandatory minimum of 50 hours of community service, (iii) up to 12 months in jail, (iv) completion of the ASAP program.
People often make the mistake of thinking that because a person is underage they must be charged with a baby DUI as opposed to a standard DUI/DWI. This is not correct. If a person is a .08 BAC or above, the officer will almost always charge the person with a regular DUI/DWI regardless of their age. However, if the BAC is below a .08 and the driver does reasonably well on the field sobriety tests, the officer may charge the person with a baby DUI under 18.2-266.1.
What is important to note that a charge under 18.2-266.1 is still a Class 1 criminal misdemeanor and carries essentially the same consequences as a regular DUI/DWI. The advantage is that it is not a DUI, but rather driving after consuming alcohol while under age. There is no indication that the person was under the influence.