Court Activity: What is Felony DUI in Virginia?

This week, we had a client in the Fairfax Court charged with felony DUI.  Many people ask us, “what is felony DUI in Virginia?”  “DUI” and “DWI” are the same thing in Virginia.  They are shorthand for the crime of driving a motor vehicle while under the influence of alcohol or drugs.

Felony DUI is charged when one is under the influence when one is also involved in a collision wherein another dies.  It is also charged when one is charged with a DUI after two prior DUI convictions within 10 years.

The punishment for felony DUI can be severe.   A felony conviction resulted in a 90 day mandatory minimum prison sentence, among other things.

It was alleged that our client was driving while under the influence of alchol and had two prior convictions, thus he was charged with a felony DUI.  It was also alleged that he unlawfully refused a breath or blood test.  When one is charged with DUI, he or she must submit to a breath or blood test.  Unreasonable refusal results, for a first offense, in a civil violation and a 12 month license revocation.  If one has a prior DUI or Refusal conviction and, in a second DUI investigation, refuses again, the Refusal charge is upgraded to a misdemeanor, punishable by up to a year in jail.

We appeared in court for the preliminary hearing.  This is the time where a General District Court judge determines if there is probable cause to proceed with the prosecution in the Circuit Court.  (In Virginia, the General District Court is the lower trial court, the Circuit Court is the higher trial court).  “Probable Cause” means that there are facts and circumstances known to the police that would lead a person of reasonable caution to believe that a crime had been committed.  It more than a hunch, but much less than proof beyond a reasonable doubt.

Unfortunately, the preliminary hearing had to be delayed.  The arresting officer had to go out on sick leave.  We objected to the prosecution’s continuance request, but the judge granted the delay over our objection.  This was not surprising.  People get sick.  In some states it is common for cases to be dismissed if an officer doesn’t show up in court — even for illness; not so in Virginia.

We will return to court in a couple months to start the fight all over again.

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