DUI and DWI lawyer

In Virginia, DUI and DWI are commonly used to describe the same general category of impaired-driving offense. A criminal charge against a driver may provide important evidence after a collision, but it does not automatically establish civil liability or guarantee compensation for an injured person.

Atkinson Law represents people injured in drunk driving accidents. The firm does not use this page to provide criminal-defense representation or individualized advice to people charged with DUI.

If an impaired driver caused a crash, the injured person’s civil claim may involve:

• Police and toxicology evidence
• Separate criminal and civil proceedings
• Compensatory damages
• Potential punitive damages
• Liability and contributory-negligence disputes
• Several automobile insurance policies
• Strict Virginia filing deadlines

Learn more about working with a Virginia drunk driving accident lawyer.

Are DUI and DWI Different in Virginia?

The terms DUI and DWI are often used interchangeably in Virginia.

Virginia Code § 18.2-266 prohibits driving or operating a motor vehicle:

• With a blood alcohol concentration of at least 0.08%;
• While under the influence of alcohol;
• While impaired by a narcotic drug or another intoxicant;
• While impaired by a combination of alcohol and drugs; or
• With specified concentrations of certain controlled substances in the blood.

A driver may therefore be charged even when no alcohol result of 0.08% or higher is available, provided other admissible evidence supports impairment under the statute.

The exact criminal charge, evidence and outcome should be verified through police and court records rather than assumed from the terms “DUI” or “DWI.”

Does a DUI Charge Prove an Injury Claim?

No. A charge is an allegation in a criminal proceeding.

An injured person pursuing a civil claim generally must establish:

1. The driver owed a duty of reasonable care.
2. The driver breached that duty.
3. The breach caused the collision.
4. The collision caused the claimed injuries and losses.

Evidence of alcohol or drug impairment may support the breach and causation analysis. It does not eliminate the need to prove the collision, injuries and damages.

How Is the Criminal DUI Case Different From the Civil Injury Claim?

Criminal DUI proceeding	Civil injury claim
Brought by the Commonwealth	Brought by the injured person
Seeks criminal penalties	Seeks compensation and other civil relief
Requires proof beyond a reasonable doubt	Uses the applicable civil burden of proof
May result in a fine, jail, probation or license consequences	May result in settlement, judgment or dismissal
Controlled by the prosecutor	Controlled by the claimant with legal counsel

The injured person does not decide whether the prosecutor files, reduces or dismisses a criminal charge.

The civil investigation can proceed while the criminal case remains pending. The civil filing deadline should be tracked independently.

What Evidence May Come From the DUI Investigation?

Potential evidence includes:

• The police crash report
• Officer observations
• Body-camera and dashboard-camera footage
• Field sobriety evidence
• Preliminary breath-test information
• Evidential breath-test certificates
• Blood-test and toxicology results
• Search warrants
• Witness statements
• 911 recordings
• Vehicle event data
• Criminal complaints and court records
• A guilty or no-contest plea
• A conviction or other final disposition

The crash report may not contain the final laboratory or breath-test result. Those records may be maintained separately by law enforcement, the Department of Forensic Science, the prosecutor or the criminal court.

Can a Criminal Plea or Conviction Be Used in the Civil Case?

Potentially. Virginia law may allow certain guilty or no-contest pleas, findings of guilt in absentia and forfeitures arising from the same occurrence to be admitted in a later civil action.

The civil court must still determine the legal significance of that evidence.

A dismissed charge or criminal acquittal also does not necessarily defeat the injury claim because the two proceedings use different standards and may involve different evidence.

What Is the Difference Between Roadside and Post-Arrest Testing?

Field sobriety exercises

Officers may ask a driver to perform roadside exercises intended to help evaluate coordination, attention and other potential signs of impairment.

These exercises are not the same as the evidential chemical test administered under Virginia’s post-arrest implied-consent law.

Preliminary breath test

A preliminary breath test is a handheld roadside test used during the officer’s investigation.

It should not be confused with the evidential breath test administered after arrest.

Post-arrest chemical test

Virginia’s implied-consent law generally applies when a person is arrested for a qualifying DUI offense within three hours of the alleged conduct.

In an alcohol case, the arrested person generally must submit to a breath test. A blood test may be used when:

• Breath testing is unavailable;
• The person is physically unable to provide a breath sample; or
• The officer has qualifying grounds to investigate drug or combined impairment.

Unreasonable refusal can result in separate license and legal consequences.

Does Refusing a Breath Test Always Constitute a Crime?

No.

Under current Virginia law:

• A first unreasonable refusal of the required breath test is generally a civil offense.
• A first refusal can result in a one-year loss of driving privileges.
• A subsequent qualifying breath-test refusal within ten years may be a Class 1 misdemeanor.
• A later qualifying refusal may result in a three-year loss of driving privileges.
• Refusal may also produce an immediate administrative license suspension.

These post-arrest consequences are different from the rules governing a preliminary roadside test.

Can a Driver Wait for a Lawyer Before Taking the Post-Arrest Test?

Virginia courts have held that a person generally cannot condition the required implied-consent test on first consulting with or waiting for an attorney.

A person may request counsel and invoke the right to remain silent concerning custodial questioning. That does not necessarily create a right to delay the chemical test while waiting for legal advice.

What Penalties Can Follow a Virginia DUI Conviction?

The consequences depend on the charge, test result, prior record and other circumstances.

A first ordinary DUI conviction is generally a Class 1 misdemeanor and carries a mandatory minimum fine.

Additional consequences may include:

• Jail
• Higher mandatory penalties for elevated BAC results
• License suspension or revocation
• Enrollment in the Virginia Alcohol Safety Action Program
• Ignition-interlock requirements
• Restricted-driving conditions
• Probation
• Higher insurance costs
• Felony treatment for qualifying repeat offenses

Those criminal consequences are imposed in the prosecution. They are separate from any civil compensation owed to an injured person.

Can an Injured Person Recover Punitive Damages?

Potentially, but punitive damages are not automatic after every DUI crash.

Virginia provides a specific statutory route when the evidence establishes:

1. The driver’s blood alcohol concentration was at least 0.15% at the time of the incident;
2. The driver knew or should have known that alcohol impaired or would impair the ability to drive; and
3. The intoxication proximately caused the injury or death.

The statute also addresses an unreasonable test refusal when the other required facts are established.

Another punitive-damages theory may require evidence of malice or sufficiently willful and wanton conduct demonstrating conscious disregard for others.

Virginia limits the total punitive-damages award against all liable defendants to $350,000.

What Compensatory Damages May Be Available?

When liability, causation and damages are established, a claim may include:

• Emergency medical care
• Past medical expenses
• Reasonably anticipated future treatment
• Lost income
• Reduced earning capacity
• Physical pain and inconvenience
• Mental anguish
• Scarring and disfigurement
• Permanent impairment
• Vehicle and personal-property damage
• Other losses recognized under Virginia law

Punitive damages are separate from these compensatory losses and require their own supporting evidence.

Can Contributory Negligence Affect a DUI Accident Claim?

Potentially. Virginia generally follows contributory negligence in ordinary negligence cases.

An impaired driver or insurer may allege that the injured person:

• Was speeding;
• Failed to yield;
• Entered against a traffic signal;
• Made an unsafe lane movement;
• Was distracted; or
• Failed to maintain a proper lookout.

The existence of a DUI charge does not automatically make those allegations disappear.

An allegation is not proof. The defendant must support it with evidence and establish that the alleged negligence proximately contributed to the collision.

Learn more about Virginia contributory negligence.

What Insurance May Apply?

Potential insurance sources include:

• The impaired driver’s liability policy
• The vehicle owner’s policy
• Employer or commercial coverage
• Umbrella or excess insurance
• The injured person’s uninsured motorist coverage
• The injured person’s underinsured motorist coverage
• Optional medical-expense benefits
• Another responsible driver’s policy

A criminal conviction does not determine the amount of insurance available or the value of the injury claim.

What if the Drunk Driving Crash Was Fatal?

A Virginia wrongful death action may exist when impaired or otherwise wrongful driving caused the death.

The action generally must be brought by the deceased person’s properly appointed personal representative for the benefit of the statutory beneficiaries.

Potential damages may include:

• Sorrow, mental anguish and solace
• Loss of expected income
• Loss of services, protection, care and assistance
• Final medical and hospital expenses
• Reasonable funeral expenses
• Punitive damages when the required standard is proved

Learn more about working with a Norfolk wrongful death lawyer.

How Long Does an Injured Person Have to File?

A Virginia personal injury action generally must be filed within two years after accrual.

A property-damage action generally has a five-year filing period.

A wrongful death action generally must be filed by the personal representative within two years after death.

The criminal DUI case, insurance investigation and settlement discussions do not necessarily pause or extend the civil deadline.

What Should an Injured Person Preserve?

Potentially important records include:

• The police report and incident number
• Photographs and video
• Witness information
• Body-camera or dashboard-camera information
• Criminal-court information
• Medical records and itemized bills
• Employment and income records
• Insurance policies and declarations pages
• Vehicle repair and towing records
• Correspondence with insurers

Some video and electronic information may be overwritten through ordinary retention practices.

Frequently Asked Questions

Are DUI and DWI separate charges in Virginia?

The terms are commonly used interchangeably to describe impaired-driving offenses under Virginia law.

Does a driver need a BAC of 0.08% to be charged?

Not always. A charge may also be based on other evidence of impairment by alcohol, drugs or a combination of substances.

Does a DUI arrest prove the injury case?

No. The injured person must still prove wrongful conduct, causation and damages.

Does a DUI conviction guarantee punitive damages?

No. Punitive damages require separate evidence satisfying Virginia’s statutory or broader willful-and-wanton standard.

Is a first post-arrest breath-test refusal a crime?

A first unreasonable refusal is generally a civil offense. A later qualifying breath-test refusal may constitute a Class 1 misdemeanor.

Can the driver wait for a lawyer before taking the chemical test?

Virginia decisions generally do not permit an arrested driver to condition the implied-consent test on first consulting with or waiting for an attorney.

Does dismissal of the DUI charge end the civil claim?

Not necessarily. The civil claim uses a different burden of proof and may rely on other evidence of negligent driving.

Does hiring a lawyer guarantee compensation?

No. The outcome depends on liability, causation, injuries, insurance, evidence and available defenses.

Discuss an Injury Caused by an Impaired Driver

Atkinson Law represents people injured in drunk driving accidents. The firm can review:

• The collision and police investigation
• Available DUI and toxicology evidence
• The criminal-court disposition
• Medical and income losses
• Applicable insurance coverage
• Potential punitive damages
• Virginia filing deadlines

Learn more about working with a Norfolk drunk driving accident lawyer.

Call or text 757-648-8579 or contact Atkinson Law to request a free consultation.