18.2-270 - Penalty for driving while intoxicated; subsequent offense; prior conviction. - Virginia Statutes

§ 18.2-270. Penalty for driving while intoxicated; subsequent offense; priorconviction.

A. Except as otherwise provided herein, any person violating any provision of§ 18.2-266 shall be guilty of a Class 1 misdemeanor with a mandatory minimumfine of $250. If the person's blood alcohol level as indicated by thechemical test administered as provided in this article or by any otherscientifically reliable chemical test performed on whole blood undercircumstances reliably establishing the identity of the person who is thesource of the blood and the accuracy of the results (i) was at least 0.15,but not more than 0.20, he shall be confined in jail for an additionalmandatory minimum period of five days or, (ii) if the level was more than0.20, for an additional mandatory minimum period of 10 days.

B. 1. Any person convicted of a second offense committed within less thanfive years after a prior offense under § 18.2-266 shall upon conviction ofthe second offense be punished by a mandatory minimum fine of $500 and byconfinement in jail for not less than one month nor more than one year.Twenty days of such confinement shall be a mandatory minimum sentence.

2. Any person convicted of a second offense committed within a period of fiveto 10 years of a prior offense under § 18.2-266 shall upon conviction of thesecond offense be punished by a mandatory minimum fine of $500 and byconfinement in jail for not less than one month. Ten days of such confinementshall be a mandatory minimum sentence.

3. Upon conviction of a second offense within 10 years of a prior offense, ifthe person's blood alcohol level as indicated by the chemical testadministered as provided in this article or by any other scientificallyreliable chemical test performed on whole blood under circumstances reliablyestablishing the identity of the person who is the source of the blood andthe accuracy of the results (i) was at least 0.15, but not more than 0.20, heshall be confined in jail for an additional mandatory minimum period of 10days or, (ii) if the level was more than 0.20, for an additional mandatoryminimum period of 20 days. In addition, such person shall be fined amandatory minimum fine of $500.

C. 1. Any person convicted of three offenses of § 18.2-266 committed within a10-year period shall upon conviction of the third offense be guilty of aClass 6 felony. The sentence of any person convicted of three offenses of §18.2-266 committed within a 10-year period shall include a mandatory minimumsentence of 90 days, unless the three offenses were committed within afive-year period, in which case the sentence shall include a mandatoryminimum sentence of confinement for six months. In addition, such personshall be fined a mandatory minimum fine of $1,000.

2. The punishment of any person convicted of a fourth or subsequent offenseof § 18.2-266 committed within a 10-year period shall, upon conviction,include a mandatory minimum term of imprisonment of one year. In addition,such person shall be fined a mandatory minimum fine of $1,000. Unlessotherwise modified by the court, the defendant shall remain on probation andunder the terms of any suspended sentence for the same period as hisoperator's license was suspended, not to exceed three years.

3. The vehicle solely owned and operated by the accused during the commissionof a felony violation of § 18.2-266 shall be subject to seizure andforfeiture. After an arrest for a felony violation of § 18.2-266, theCommonwealth may file an information in accordance with § 19.2-386.1. If theinformation is filed, the Commonwealth shall notify the Commissioner of theDepartment of Motor Vehicles that the property is subject to seizure. TheCommissioner shall act upon such notification pursuant to the provisions forcertification and notice applicable to a seizure under § 19.2-375, exceptthat the Commissioner shall serve the written notice of the seizure upon theregistered owner and lienor in accordance with the requirements of §8.01-296. Any seizure shall be stayed until conviction and the exhaustion ofall appeals at which time, if the information has been filed, theCommonwealth shall immediately commence seizure of the property in accordancewith § 19.2-386.2.

An immediate family member of the owner of any motor vehicle for which aninformation has been filed under this section who was not the driver at thetime of the violation may petition the court in which such information wasfiled for the release of the motor vehicle. If the immediate family memberproves by a preponderance of the evidence that his immediate family has onlyone motor vehicle and will suffer a substantial hardship if that motorvehicle is seized and forfeited, the court, in its discretion, may releasethe vehicle.

In the event the vehicle was sold to a bona fide purchaser subsequent to thearrest but prior to seizure in order to avoid seizure and forfeiture, theCommonwealth shall have a right of action against the seller for the proceedsof the sale.

D. In addition to the penalty otherwise authorized by this section or §16.1-278.9, any person convicted of a violation of § 18.2-266 committed whiletransporting a person 17 years of age or younger shall be (i) fined anadditional minimum of $500 and not more than $1,000 and (ii) sentenced to amandatory minimum period of confinement of five days.

E. For the purpose of determining the number of offenses committed by, andthe punishment appropriate for, a person under this section, an adultconviction of any person, or finding of guilty in the case of a juvenile,under the following shall be considered a conviction of § 18.2-266: (i) theprovisions of § 18.2-36.1 or the substantially similar laws of any otherstate or of the United States, (ii) the provisions of §§ 18.2-51.4, 18.2-266,former § 18.1-54 (formerly § 18-75), the ordinance of any county, city ortown in this Commonwealth or the laws of any other state or of the UnitedStates substantially similar to the provisions of § 18.2-51.4, or § 18.2-266,or (iii) the provisions of subsection A of § 46.2-341.24 or the substantiallysimilar laws of any other state or of the United States.

F. Mandatory minimum punishments imposed pursuant to this section shall becumulative, and mandatory minimum terms of confinement shall be servedconsecutively. However, in no case shall punishment imposed hereunder exceedthe applicable statutory maximum Class 1 misdemeanor term of confinement orfine upon conviction of a first or second offense, or Class 6 felony term ofconfinement or fine upon conviction of a third or subsequent offense.

(Code 1950, § 18.1-58; 1960, c. 358; 1962, c. 302; 1975, cc. 14, 15; 1982, c.301; 1983, c. 504; 1989, c. 705; 1991, cc. 370, 710; 1992, c. 891; 1993, c.972; 1997, c. 691; 1999, cc. 743, 945, 949, 987; 2000, cc. 784, 956, 958,980, 982; 2002, c. 759; 2003, cc. 573, 591; 2004, cc. 461, 937, 946, 950,957, 958, 962; 2006, cc. 82, 314; 2009, c. 229.)