dui lawyer richmond va

Richmond VA, DUI Lawyer, Sara Gaborik 


June 14th 2014

By Sara Gaborik

Looking for a Richmond VA DUI Lawyer? Driving under the influence (DUI) of drugs or alcohol (or driving while intoxicated (DWI)) in Virginia instantly thrusts many otherwise law-abiding citizens into the criminal justice system where they face serious criminal penalties. If you are facing such a charge, this is not the time to represent yourself. You need a criminal lawyer with experience handling Virginia DUI cases in your locale.

Virginia DUI laws prohibit those who are drug- or alcohol-impaired from operating vehicles. Virginia Code § 18.2-266 makes it unlawful to operate a vehicle under several conditions:

  • With a blood alcohol content above 0.08; or
  • While under the influence of alcohol; or
  • While under the influence of drugs; or
  • While under the influence of both drugs and alcohol; or
  • With specified blood levels of cocaine, methamphetamine, or certain other substances.

Virginia Code § 18.2-266.1 makes it unlawful for someone under the age of twenty one to operate a vehicle after illegally consuming alcohol. Such a DUI charge would be imposed in addition to any charges for underage drinking. For underage drivers, a blood alcohol content of only 0.02, rather than 0.08, subjects them to penalties in Virginia.

If you are arrested for DUI, a lawyer is essential because you are facing a significant offense with serious repercussions. A conviction will gravely affect your future, your ability to earn a living, your standing in the community, and your dignity.


A DUI charge can be a misdemeanor or a felony, depending on the circumstances, and can carry heavy fines, license suspensions, and jail time. Virginia Code § 18.2-270 escalates penalties based on factors like high blood alcohol content and prior offenses.

First DUI Offense in Virginia 

A conviction under Code § 18.2-270 for a first DUI offense is a Class 1 misdemeanor with penalties that depend on the driver’s blood alcohol content:

  • For a blood alcohol content below 0.15, the penalties include a $250 minimum fine, a one-year license suspension, and, in the judge’s discretion, jail time not to exceed one year.
  • For a blood alcohol content of 0.15 to 0.20, the penalties include a $250 minimum fine, a one-year license suspension, and five or more days in jail, mandatory.
  • For a blood alcohol content over 0.20, the penalties include a $250 minimum fine, a one-year license suspension, and ten or more days in jail, mandatory.

Second DUI Offense In Virginia 

A second offense is also a Class 1 misdemeanor but carries higher penalties. Under Code § 18.2-270:

  • A driver convicted of DUI within ten years of a prior DUI conviction faces fines of $500 or more, a 3-year driver’s license suspension (Virginia Code § 46.2-391), and up to one month of jail time with at least ten days of mandatory time served. The driver will not be eligible for a restricted driver’s license for at least four months.
  • A driver convicted of DUI within five years of a prior DUI conviction faces the same penalties but will face one month to one year of jail time with at least twenty days of mandatory time served. The driver will not be eligible for a restricted driver’s license for at least one year.

Additional penalties will likely be imposed, including more jail time, for those found with higher blood alcohol content levels and for those who had one or more children in the vehicle at the time of arrest. An experienced and aggressive attorney who has handled these issues understands where there may be some leeway.

Felony DUI in Richmond, Henrico, Chesterfield, And Central Virginia 

Although most DUI/DWI charges are classified as misdemeanors, some circumstances can escalate these charges to felonies. If you seriously injure someone while driving under the influence, under Virginia Code § 18.2-51.4, you can be charged with Felony DUI, a Class 6 felony. Virginia Code § 18.2-10 imposes penalties for Class 6 felonies including up to five years in jail, with at least one year served, license revocation, and fines up to $2,500.

If you unintentionally kill someone while driving under the influence, you will be charged under Virginia Code § 18.2-36.1 with involuntary manslaughter, a Class 5 felony. Virginia Code § 18.2-10 penalties for a Class 5 felony include fines of up to $2,500 fine and up to ten years of jail time with at least one year served. If the circumstances are egregious enough, you could be found guilty of aggravated involuntary manslaughter which, under Code § 18.2-36.1, could mean up to twenty years of jail time with at least a minimum of one year served.

If you are convicted of DUI and already have two or more DUI convictions within the prior ten years, you will be charged with felony DUI, a Class 6 felony under Virginia Code § 18.2-270. This carries a mandatory minimum sentence of ninety days in jail (six months if the two earlier DUI convictions occurred within the prior five years) and a mandatory minimum fine of $1,000.

Felony convictions mean additional consequences. You will lose your right to vote, your right to own or possess a firearm, and even your right to certain travel. A felony record can also hamper your employment opportunities and even affect where you might be able to live. An experienced and aggressive attorney is essential in these cases to safeguard your rights and fight for as favorable an outcome as possible for you.


A law enforcement officer will pull you over if he or she suspects you of driving under the influence. A variety of behaviors could lead to such suspicion, such as weaving, crossing a center line, failing to stop at a stop sign, driving at erratic speeds, driving too close to another car, or other moving violations.

After pulling you over, the officer will approach your vehicle and ask you a series of questions. The officer will observe your physical appearance and how you behave, will scan the contents of your vehicle for readily visible alcohol containers or drug paraphernalia, and will actively attempt to detect the odor of alcohol, marijuana, or other substances. During this period, the officer is gathering evidence that can lead to the conclusion that you are driving “under the influence” which would escalate the stop to the next level.

If you are obviously intoxicated or otherwise impaired, the officer can arrest you. If the officer detects indications that you might be driving under the influence but wants to be sure you are sufficiently impaired to justify an arrest, you will be asked to exit the car. The officer will subject you to additional observation and certain physical tests, often referred to as “field sobriety tests.”  


Law enforcement officers learn how to detect those who are driving under the influence, how to craft descriptions of driver behavior that legally support the decision to pull over a driver suspected of driving under the influence, and even how to testify against that driver at trial. The field sobriety tests are critical tools in the law enforcement officer’s arsenal and the results are used to justify your arrest and as evidence against you at trial. Field sobriety tests can include several components, all of which are subject to court challenges.

Virginia Standardized Field Sobriety Test

The Standardized Field Sobriety Test includes three primary tests: the Horizontal Gaze Nystagmus, the Walk-and-Turn, and the One-Leg Stand.

Horizontal gaze nystagmus. When a person shifts eye focus to extreme angles, left or right, the eyes actually jerk involuntarily. This is a normal phenomenon known as horizontal gaze nystagmus. When that person is under the influence of alcohol, the eyes often jerk even when the person’s gaze shifts only partly to the left or right. An impaired individual may also struggle to follow a moving object smoothly with his or her gaze. A law enforcement officer will hold up a finger, pen, pencil, small flashlight, or other small object and move it around while watching the driver follow it with his/her gaze. The officer watches to see whether the driver’s gaze falters as it follows the object, whether the driver’s eyes jerk at extreme angles from center, and whether they also jerk at lesser angles. This officer is looking for specific reactions that typically indicate the person is impaired.

Walk-and-turn. This test asks the driver to walk in a straight line, putting one foot directly in front of the other, heel to toe. The driver has to turn on one foot and, again, walk a straight line, heel to toe. The officer watches to see if the driver follows directions, maintains balance while performing the heel-to-toe steps without stopping, performs the correct number of steps (usually nine), and turns properly. The officer will also see if the driver steps off the line or has to extend his or her arms to maintain balance. A person who cannot perform these functions properly may be impaired, but the test is not perfect. Some people have physical limitations or disabilities that hinder their ability to perform this test. Some are less coordinated than others. And some people might not comprehend the instructions properly. An experienced attorney can raise these—and more—challenges in court.

One leg stand. Like the walk-and-turn test, this test divides the driver’s attention between physical performance and the ability to follow an officer’s instructions. The driver must stand and hold one foot off the ground for some amount of time. The officer may ask the driver to hold that position for thirty seconds or until told to resume standing on both feet.The officer watches to see whether the person can maintain the raised-foot position. Putting the foot down too soon, swaying, hopping to stay upright on one foot, or extending the arms for balance suggests the driver is impaired. Again, a lawyer familiar with such cases can challenge the officer’s conclusions.

Additional Field Sobriety Tests In Virginia 

In Virginia, law enforcement officers may use other tests to assess whether a driver has been operating a vehicle under the influence of drugs or alcohol. These tests are less reliable than those found in the Standardized Field Sobriety Test, and a criminal lawyer can help you contest the results in court. Some of these tests include:

Rhomberg balance test. The driver stands with feet together, tilts the head back to look directly upward, and holds the arms outstretched to the sides. The officer will watch to see if the driver loses balance.

Finger to nose test. In this test, the driver is instructed to try to touch his or her nose with a fingertip while standing with eyes closed. The officer watches to see if the driver misses the tip of the nose with the finger.

Finger count test. Sometimes, an officer will hold up some number of fingers and simply ask the driver, “How many fingers am I holding up?” If the driver gets the number wrong, the officer likely will administer further testing.

ABC and backward counting tests. Some officers ask drivers to count backwards from a certain number or recite a specific portion of the alphabet. Failure to count or recite the alphabet properly likely will lead to further testing as well.


An officer who concludes that you have not performed the field sobriety tests satisfactorily may ask you to take a preliminary breath test (PBT).  Law enforcement uses this test to determine your blood alcohol content (BAC). Because studies have shown that a BAC of 0.08 or higher significantly impairs a driver’s ability to operate a motor vehicle safely, a BAC of that level establishes, legally, the requisite level for a DUI arrest. For underage drinkers, Virginia reduces this threshold dramatically—a BAC of just 0.02 or higher will support an arrest for DUI.


If you are arrested and taken to the police station, you will likely be asked to submit to a blood test, Breathalyzer test, or both. The results of these tests are admissible and will be used as evidence against you at trial.


If you refuse to submit to testing, you face additional criminal charges

You always have the right to refuse to participate in any or all of the field sobriety tests and Breathalyzer and blood tests.  But refusing to submit to these tests carries new and separate penalties that would be added to any penalties imposed for actually driving under the influence.

If you are arrested for DUI and refuse to take a Breathalyzer or blood test, you can be charged with an unreasonable refusal violation under Virginia Code § 18.2-268.3. By operating a vehicle on Virginia roads, drivers are deemed to have consented to such testing. Refusing to submit to those tests therefore carries penalties. Moreover, if you refuse a test, the prosecutor will be allowed to use that fact as evidence against you in Court. It is also grounds for additional license suspension or even revocation, depending on whether you’ve refused before. Additional penalties accompany the refusal as well.

Whether you decide to submit to the tests or not, you always retain your right to remain silent. This is a guaranteed right under the Fourth Amendment of the United States Constitution. Even if you have been accused of driving under the influence, you can never be forced to make statements about that accusation.  


Being accused of driving under the influence can be a terrifying experience, particularly if you have never been involved in the criminal justice system. The laws are complex and a small nuance in the facts can make a huge difference in how your case should be handled. Hiring a criminal lawyer who regularly handles these cases dramatically improves your chances of obtaining the best possible outcome.

Sara Gaborik is well-versed in the laws and statutes pertaining to DUI and stays up to date with the ever-changing case law in this field.  She knows the penalties, ramifications, and legal consequences of DUI convictions in the Commonwealth of Virginia, and she knows the judges and prosecutors that try these cases.  She has successfully represented DUI clients in the Commonwealth of Virginia for more than a decade and will give you the individual, energetic, and competent representation you need and deserve.


Sara Gaborik has represented defendants in DUI cases throughout Richmond, Henrico, Essex, Chesterfield, Prince George, and surrounding areas for over a decade. If you have been charged with DUI and would like a legal consultation, call Ms. Gaborik today at (804) 334-4351 or (804) 780-3080.