VA Code 18.2-266: Virginia's DUI Statute Explained

What Virginia Code § 18.2-266 Actually Says

Virginia Code § 18.2-266 is the statute that defines driving under the influence in the Commonwealth. If you have been arrested for DUI in Virginia, this is the law the prosecution is charging you under. Understanding what it covers — and what it does not — helps you make sense of everything that comes next.

The statute makes it illegal to operate a motor vehicle on any public highway in Virginia while under the influence of alcohol, drugs, or any combination of the two. It establishes three separate ways the Commonwealth can prove impairment:

1. Per se BAC violation — operating a vehicle with a blood alcohol concentration of 0.08% or higher
2. Impairment by alcohol — operating a vehicle while impaired by alcohol, even if BAC is below 0.08%
3. Impairment by drugs — operating a vehicle under the influence of any narcotic, self-administered intoxicant, or combination of drugs and alcohol

This means you can be convicted under § 18.2-266 even without a breath or blood test result — the Commonwealth can build an impairment case on officer observations, field sobriety test performance, and other circumstantial evidence.

Class 1 Misdemeanor Classification

A first-offense DUI under § 18.2-266 is prosecuted as a Class 1 misdemeanor — the most serious misdemeanor classification in Virginia. The statutory maximums are:

• Up to 12 months in jail
• A fine of up to $2,500
• A mandatory minimum fine of $250 (the judge cannot reduce this below $250)
• A 12-month license revocation (not suspension — revocation means the license is terminated and you must reapply)
• 6 demerit points assessed by the DMV upon conviction

For a standard first offense with a BAC below 0.15%, most judges will not impose active jail time. The practical sentence typically includes the mandatory minimum fine, court costs, a 12-month license revocation with eligibility for a restricted license, mandatory VASAP enrollment, and ignition interlock installation.

Enhanced Penalties for Elevated BAC

The statute and its companion sentencing provisions under § 18.2-270 impose mandatory minimum jail sentences when the BAC exceeds certain thresholds:

These mandatory minimums are absolute — the sentencing judge cannot suspend them, reduce them, or substitute community service. They represent floor sentences, not ceilings.

The Child Passenger Aggravator

Under § 18.2-270(D), operating a vehicle while impaired with a passenger under 18 years old triggers an additional mandatory penalty:

• 5 additional days of active jail (served consecutively to any other jail time)
• An additional fine of $500 to $1,000

This enhancement applies regardless of the BAC level. A first-offense DUI at 0.07% BAC with a child in the car carries a 5-day mandatory sentence, while the same BAC without a child passenger carries no mandatory jail time at all.

Underage DUI (BAC 0.02% to Under 0.08%)

Drivers under 21 face prosecution under a separate but related provision — Virginia Code § 18.2-266.1 — which sets the BAC threshold at 0.02% instead of 0.08%. This is also a Class 1 misdemeanor carrying:

• A mandatory minimum fine of $500 or 50 hours of community service
• A 12-month license forfeiture
• No mandatory jail for the first offense

What the Statute Does Not Cover

Section 18.2-266 defines the offense and establishes the criminal case. It does not govern:

• The administrative license suspension — that is handled under § 46.2-391.2, which authorizes the DMV to suspend your license independently of the criminal case
• The restricted license application — governed by § 18.2-270.1 and filed through Form DC-263
• Implied consent and refusal penalties — covered by § 18.2-268.3
• VASAP enrollment — mandated by § 18.2-271.1

These are separate statutes that create a parallel web of obligations. A DUI arrest triggers all of them simultaneously, and each operates on its own timeline with its own deadlines.

How This Affects Your Case

If you are facing a first-offense charge under § 18.2-266, the criminal case in General District Court is only one track you need to manage. The DMV's administrative suspension starts immediately at arrest — before any court hearing. VASAP enrollment must happen within 15 days of conviction. The FR-44 insurance filing must be completed before the DMV will issue your restricted license.

Our Virginia First-Offense DUI Guide walks through both the criminal court track and the administrative track in a single timeline, with every form, deadline, and cost laid out in order. If you are trying to understand how § 18.2-266 fits into the larger picture of what you need to do next, the complete guide connects all the pieces.

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