duistatelaws.com In Virginia there is no hearing to request after a DUI arrest. The license is suspended by statute the moment the warrant or summons issues, for seven days on a first charge, and the only review is one the driver asks the general district court for while those seven days are still running.
Key takeaways
- Section 18.2-266 makes it unlawful to drive at 0.08 or more, or under the influence, whatever the number.
- The license is suspended immediately at the warrant or summons: 7 days, 60 on a second charge, until trial on a third.
- Review is by the general district court, and only during the suspension; there is no agency hearing.
- A first offense is a Class 1 misdemeanor with a $250 minimum fine, plus 5 or 10 days of mandatory jail at 0.15 or above 0.20.
- A third offense within 10 years is a Class 6 felony with at least 90 days, or six months if all three fell within five.
- A DUI conviction cannot be sealed by petition; only a dismissed or acquitted charge can be expunged.
on a first charge, the only window in which the general district court can be asked to review the suspension. Va. Code § 46.2-391.2(A), (C). The suspension took effect at the warrant or summons, and review exists only while it runs: seven days on a first charge, sixty on a second, until trial on a third. There is no agency hearing to request.
The same diagram as a table
| State | Days | Authority |
|---|---|---|
| Colorado | 7 | C.R.S. § 42-2-126(6)(d), (7)(b) |
| Virginia* | 7 | Va. Code § 46.2-391.2(A), (C) |
| Washington | 7 | RCW 46.20.308(7) |
| California | 10 | Cal. Veh. Code § 13558(b) |
| Florida | 10 | Fla. Stat. § 322.2615(1)(b)3. |
| Texas | 15 | Tex. Transp. Code §§ 524.031, 724.041 |
| Arizona | 30 | A.R.S. § 28-1321(F), (G) |
| Georgia | 30 | O.C.G.A. § 40-5-67.1(g)(1) |
| South Carolina | 30 | S.C. Code § 56-5-2951(B)(1) |
| Minnesota* | 60 | Minn. Stat. § 169A.53, subd. 2 |
One section, five ways to commit it
Section 18.2-266 makes it unlawful to drive or operate any motor vehicle, engine or train in five situations: (i) with a blood alcohol concentration of 0.08 or more, or 0.08 grams or more per 210 liters of breath; (ii) while under the influence of alcohol; (iii) while under the influence of a narcotic or other self-administered drug to a degree that impairs the ability to drive safely; (iv) under the combined influence of alcohol and drugs to the same degree; and (v) with a blood level at or above a set threshold for cocaine, methamphetamine, phencyclidine or MDMA. A charge under the section supports a conviction under any of the five clauses.
The Code titles the offense driving while intoxicated, and section 18.2-270 is headed “Penalty for driving while intoxicated”, so DUI and DWI name the same charge in Virginia. For this article, the section says, “motor vehicle” includes mopeds on the public highways.
Drivers under 21 have a separate offense. Section 18.2-266.1 makes it unlawful for a person younger than 21 to drive after illegally consuming alcohol, with a concentration of 0.02 or more but less than 0.08. It is a Class 1 misdemeanor punished by a one-year loss of license and a mandatory minimum fine of $500 or 50 hours of community service.
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The count, then the reading on top of it
Section 18.2-270 builds a Virginia DUI sentence in layers. The count sets the floor: a first offense is a Class 1 misdemeanor with a mandatory minimum fine of $250; a second sets a jail minimum that depends on how long ago the first was; a third within ten years is a felony. Then the reading adds days: at 0.15 to 0.20 a first offense carries an additional mandatory five days, and above 0.20 an additional ten. For a second offense within ten years the additions are ten and twenty days, with a $500 mandatory minimum fine.
Subsection F says these mandatory minimums are cumulative and the terms are served consecutively, but never beyond the class maximum: for a Class 1 misdemeanor, section 18.2-11 sets twelve months in jail and a $2,500 fine; for a Class 6 felony, section 18.2-10 sets one to five years, or up to twelve months in jail and a $2,500 fine.
The same diagram as a table
| Offense | Confinement | Authority |
|---|---|---|
| First offense | no minimum; up to 12 months | Va. Code § 18.2-270(A) |
| Second, under 5 years apart | 20 days mandatory, within 1 month to 1 year | Va. Code § 18.2-270(B)(1) |
| Second, 5 to 10 years apart | 10 days mandatory, within at least 1 month | Va. Code § 18.2-270(B)(2) |
| Third within 10 years | 90 days mandatory; 6 months if all three within 5 years | Va. Code § 18.2-270(C)(1) |
| Fourth or more within 10 years | 1 year mandatory | Va. Code § 18.2-270(C)(3) |
| Offense | Level | Confinement | Fine | License | Also required |
|---|---|---|---|---|---|
| First offense | Class 1 misdemeanor Va. Code § 18.2-270(A) | no minimum; up to 12 months 5 days added at 0.15 to 0.20; 10 days above 0.20; maximum under § 18.2-11(a) | $250 minimum, up to $2,500 §§ 18.2-270(A), 18.2-11(a) | 1 year § 18.2-271(A) | ASAP |
| Second, under 5 years apart | Class 1 misdemeanor Va. Code § 18.2-270(B)(1) | 20 days mandatory, within 1 month to 1 year 10 more days at 0.15 to 0.20; 20 more above 0.20 | $500 minimum § 18.2-270(B) | 3 years § 18.2-271(B) | ASAP; interlock on each owned vehicle for a restricted license |
| Second, 5 to 10 years apart | Class 1 misdemeanor Va. Code § 18.2-270(B)(2) | 10 days mandatory, within at least 1 month 10 more days at 0.15 to 0.20; 20 more above 0.20 | $500 minimum § 18.2-270(B) | 3 years § 18.2-271(B) | ASAP; interlock on each owned vehicle for a restricted license |
| Third within 10 years | Class 6 felony Va. Code § 18.2-270(C)(1) | 90 days mandatory; 6 months if all three within 5 years | $1,000 minimum § 18.2-270(C)(1) | Revoked indefinitely § 18.2-271(C) | A solely owned vehicle may be forfeited |
| Fourth or more within 10 years | Class 6 felony Va. Code § 18.2-270(C)(3) | 1 year mandatory | $1,000 minimum § 18.2-270(C)(3) | Revoked indefinitely § 18.2-271(C) | A solely owned vehicle may be forfeited |
Section 18.2-270(D) adds a further penalty to any conviction committed while transporting a person 17 or younger: an additional fine of $500 to $1,000 and a mandatory minimum of five days in confinement.
The felony brings more than the sentence. Section 18.2-270(C)(4) makes the vehicle solely owned and operated by the accused during a felony DUI subject to seizure and forfeiture. And under subsection C(2), a person previously convicted of a felony DUI, or of one of the related offenses that subsection lists, is guilty of a Class 6 felony on any later DUI, with a mandatory minimum of one year and a $1,000 fine.
Suspended at the warrant, reviewed only on request
Section 46.2-391.2 applies when a breath test shows 0.08 or more (0.02 or more for a driver under 21), or the person refuses the breath or blood test, and a warrant, summons or petition is issued for DUI or for the refusal. The license is then suspended immediately. The officer serves a notice of suspension in person, takes the Virginia license, and delivers it to the magistrate, who forwards it to the clerk of the general district court.
The length depends on the charge, not on a conviction. It is seven days on a first charge and sixty days if the charge is a second offense; a second-charge suspension expires at the trial if that comes first, but never within the first seven days. On a third or subsequent charge, the suspension lasts until the day of trial.
The review is the part people miss. Subsection C lets the driver, during the period of the suspension, ask the general district court of the place of arrest to review it. The court must hear it on the same timetable as a bail appeal, ahead of everything else on its docket. If the driver proves by a preponderance of the evidence that the officer or the magistrate did not have probable cause, the court rescinds the suspension — or, on a second or third charge, the part that goes beyond seven or sixty days if there was no probable cause to charge the higher count. A driver who asks and then fails to appear without just cause waives the review.
The same diagram as a table
| Step | Criminal case — decided by a court | License case — decided by the general district court, on request |
|---|---|---|
| 1 | Arrest and booking, hour 0 | Notice of suspension served, day 0 |
| 2 | Charge filed by the prosecutor | Ask the general district court for review while the suspension runs: 7 days on a first charge, 60 on a second |
| 3 | First court setting, on a date the court picks | Review heard with precedence on the docket; rescinded if there was no probable cause |
| 4 | One or more pretrial settings | Suspension runs its period (until trial on a third charge) |
| 5 | Trial, plea or dismissal | — |
| Clock | Weeks to months. No filing deadline runs against the driver. | Counted in days from the notice, and fixed by statute. |
| What happened | First time | Second charge or offense | Authority |
|---|---|---|---|
| Charged, test at 0.08 or more, or refused | 7 days | 60 days (until trial on a third) | Va. Code § 46.2-391.2(A) |
| Convicted of DUI | 1 year | 3 years; indefinite on a third | Va. Code § 18.2-271 |
| Refused a breath or blood test | 1 year (civil) | 3 years | Va. Code § 18.2-268.3 |
None of this is the conviction suspension, which comes later and runs on top of it. Section 18.2-271 makes the judgment of conviction itself take the license: for one year on a first offense, three years for a second within ten years, and indefinitely for a third within ten years or a felony DUI. Each of those is in addition to the administrative suspension, and subsection D says no period begins to expire until the license has been surrendered to the court or the Department of Motor Vehicles.
A refusal is its own proceeding. Under section 18.2-268.3, a first unreasonable refusal of a breath or blood test is a civil offense with a one-year suspension, again in addition to the administrative one. A breath-test refusal within ten years of a prior DUI or refusal is a Class 1 misdemeanor and costs the license for three years.
Five years and ten years
Virginia uses two windows at once. Under section 18.2-270(B), a second offense committed within less than five years of a prior offense carries one month to one year in jail with twenty days mandatory; a second within five to ten years carries at least one month with ten days mandatory. Under subsection C, three offenses within ten years make the third a Class 6 felony with a mandatory minimum of ninety days — or six months if all three were committed within five years — and a fourth within ten years carries a mandatory minimum of one year.
Out-of-state convictions count. Subsection E treats a conviction under substantially similar laws of any other state or of the United States, or under a similar local ordinance, as a conviction of section 18.2-266 for counting offenses.
ASAP, the restricted license and the interlock
Section 18.2-271.1 requires a person convicted of DUI to enter and complete an Alcohol Safety Action Program, unless the court, for good cause after an assessment, declines to order it. The fee is set at no less than $250 and no more than $300. The same program is the route to a restricted license during the suspension, and section 18.2-270.1 ties that license to an ignition interlock.
For an adult’s first offense under section 18.2-266, subsection C of section 18.2-270.1 says the interlock is the only restriction the court shall impose on the restricted license: no driving a vehicle without a functioning, certified device for at least twelve consecutive months without alcohol-related violations. On the offender’s motion the court may require a minimum of six months if it adds other restrictions for the duration of the license. From a second offense, subsection B requires the device on each motor vehicle owned by or registered to the person as a condition of a restricted license.
After an indefinite revocation, section 46.2-391(C) lets the person petition the circuit court. After five years from the last conviction the court may restore the privilege on condition of an interlock on every vehicle the person owns for at least six months. The Department of Motor Vehicles reinstatement fee after a DUI suspension is set at $105 in section 18.2-271.1(E).
| Situation | Term | Authority |
|---|---|---|
| First offense, adult, restricted license | At least 12 consecutive months without an alcohol violation (6 on motion with added restrictions) | Va. Code § 18.2-270.1(C) |
| Second or later offense, restricted license | Interlock on each vehicle owned or registered | Va. Code § 18.2-270.1(B) |
| Restoration after an indefinite revocation, after five years | At least 6 months under § 46.2-391(C)(2); § 18.2-270.1(B) requires at least 12 consecutive months without an alcohol-related violation for any restoration under § 46.2-391 | Va. Code §§ 46.2-391(C)(2); 18.2-270.1(B) |
A conviction cannot be sealed by petition
Virginia’s sealing statute, section 19.2-392.12, lets a person petition to seal many misdemeanor and lower-level felony convictions, but subsection L lists the offenses that are ineligible, and sections 18.2-266, 18.2-266.1 and 18.2-268.3 — DUI, the under-21 offense and refusal — are on the list.
Expungement under section 19.2-392.2(A), in the version in force until December 1, 2026, is available only when a person is acquitted, or a nolle prosequi is taken, or the charge is otherwise dismissed. A DUI charge that ends that way can be expunged on petition, without court fees for filing; a DUI conviction stays.
What a Virginia DUI lawyer is actually working with
Seven days, a probable-cause standard, and a sentence assembled from parts.
The administrative review is narrow but early. It asks one question — whether there was probable cause for the arrest, the warrant or the petition — and section 46.2-391.2(C) says the court’s findings are without prejudice to anyone and are not evidence in any later proceeding, civil or criminal. It has to be asked for before a first-charge suspension runs out.
The sentence depends on facts that can be contested separately: the count, which turns on dates of prior offenses and whether an out-of-state conviction is substantially similar; the reading, which moves a first offense from no mandatory jail to five or ten days; and the passenger’s age. The license consequence turns on the same count, and the restricted license turns on ASAP and the interlock.
Where the case is actually heard
Common questions about Virginia DUI law
How long is the license suspension after a DUI arrest in Virginia?
Seven days on a first charge, starting immediately when the warrant or summons issues; sixty days on a second charge; until trial on a third. The conviction suspension under section 18.2-271 comes later and runs on top of it.
Can I get a hearing on a Virginia DUI suspension?
There is no agency hearing. Under section 46.2-391.2(C) you can ask the general district court where you were arrested to review the suspension, but only while it is running. The court rescinds it if you prove there was no probable cause.
Is a first DUI in Virginia jail time?
There is no mandatory jail for a first offense at a reading below 0.15. At 0.15 to 0.20 there is an additional mandatory five days, and above 0.20 an additional ten. The maximum for a Class 1 misdemeanor is twelve months.
When is a DUI a felony in Virginia?
A third offense within ten years is a Class 6 felony, with a mandatory minimum of 90 days, or six months if all three were within five years. A later DUI after a felony DUI is also a Class 6 felony with a one-year minimum, under section 18.2-270(C)(2).
Can I refuse a breath test in Virginia?
A first unreasonable refusal is a civil offense with a one-year suspension under section 18.2-268.3. A breath-test refusal within ten years of a prior DUI or refusal is a Class 1 misdemeanor with a three-year loss of license.
Can a Virginia DUI be expunged or sealed?
A conviction cannot: section 19.2-392.12(L) makes DUI ineligible for sealing by petition. A charge that was dismissed, nolle prossed or ended in an acquittal can be expunged under section 19.2-392.2(A).
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More for Virginia
- Fairfax — which court hears the case, and what the first weeks look like on the ground
- Alexandria — which court hears the case, and what the first weeks look like on the ground
- What the charge is called in each state — the terminology table, and why searching the wrong acronym returns the wrong penalty
- How long it stays on your record — the three separate records a single arrest creates
- Expungement, sealing and set aside — which of the three, if any, exists in Virginia
- Refusing the test — what implied consent costs here against what it buys
- SR-22 insurance after a Virginia suspension — what the filing certifies and how long the state holds you to it
- Ignition interlock requirements — when Virginia orders the device, for how long, and what driving without it costs
- DUI classes and evaluations — the program attached to the sentence, its deadline, and what not finishing costs
- Are DUI checkpoints legal in Virginia? — a plan with neutral criteria, per Lowe (1985)
- Device cost and providers in Virginia — our sister site, written around the SR-22 filing
Sources
- Va. Code § 18.2-266(i) — read in force 2026
- Va. Code § 46.2-391.2(A), (C) — read in force 2026
- Va. Code § 18.2-270 — read in force 2026
- Va. Code § 18.2-11(a) — read in force 2026
- Va. Code § 18.2-10(f) — read in force 2026
- Va. Code § 18.2-271 — read in force 2026
- Va. Code § 46.2-391(C) — read in force 2026
- Va. Code § 18.2-268.3(A)(1) — read in force 2026
- Va. Code § 18.2-271.1(A), (B) — read in force 2026
- Va. Code § 18.2-270.1(B), (C) — read in force 2026
- Va. Code § 18.2-266.1 — read in force 2026
- Va. Code § 19.2-392.2(A) — read in force 2026
- Va. Code § 19.2-392.12(L) — read in force 2026
Each entry names the section that carries the figure and the document that was actually opened to read it. Where the two differ, the state’s own publication is linked as well. Statutes change; check the linked text before relying on a number from any website, including this one.