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DUI Arrest in Virginia

The answer to this question depends on whether it is a felony or misdemeanor DUI/DWI. If the offense constitutes a misdemeanor the officer cannot make an arrest without a warrant. There is an exception to this rule: no warrant is needed for an arrest when the offense is committed in the presence of the arresting officer. Probable cause is not enough for an arrest without a warrant when the offense was not committed in the direct presence of the arresting officer. One cannot be arrested even when an officer witnesses the offense and calls upon another officer to make the arrest if the arresting officer was not present at the time the offense was committed. The court has defined “in the presence of” to mean that the arresting officer has personal knowledge of the offense by use of his/her own senses.

If the offense constitutes a felony DUI/DWI the arresting officer only needs probable cause that the offense was committed in his/her presence. Probable cause is anything which would lead the officer to believe that a felony is being committed. For instance, in the case of a DUI/DWI if an officer is sitting in a parking lot of a gas station with a radar gun and sees a person at the pump showing signs of extreme intoxication the officer may run the plates to find that this person has two previous DUI/DWI or unreasonable refusal offenses within the last ten years. In this case the officer has probable cause that this person had committed DUI/DWI in his/her presence when they drove into the station. The officer would probably not need a warrant in this scenario because this was not a misdemeanor DUI and therefore the officer did not have to have personal knowledge based on his/her own senses.

Many people believe that DUI/DWI only refers to alcohol; however, one may be charged with a DUI/DWI while under the influence of drugs, alcohol or any combination of the two. In general, the elements of DUI/DWI are (1) operating or driving, (2) a motor vehicle, train or engine, (3) under the influence of alcohol, drugs or both. Under Virginia law, specifically, one is guilty of DUI/DWI when found to be driving with a BAC of 0.08 or more; which means 0.08 percent alcohol by weight by volume. When a breathalyzer test is used the legal limit is still 0.08, but in this case it means 0.08 grams or more per 210 liters of breath. However, there is more to DUI/DWI laws. One is guilty of DUI/DWI: (1) when found to be driving or operating a motor vehicle, train or engine with a BAC of 0.08, (2) when found to be under the influence of alcohol, (3) when found to be under the influence of narcotics or any other intoxicant which impairs the person’s ability to driver or operate a motor vehicle, train, or engine safely, (4) when found to be under the influence of any combination of drugs or alcohol which impairs one’s ability to operate or drive a motor vehicle, train or engine safely, (5) when there are substances found at the following levels per liter of blood: (a) 0.02 milligrams of cocaine per, (b) 0.1 milligrams methamphetamine, (c) 0.01 milligrams of phencyclidine, or (d) 0.1 milligrams of 3,4-methylenedioxymethamphetamine.

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