3 Aggravating Factors in a DUI Case


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Among the aggravating factors for any DUI case, three stand out at the top of the list. These major aggravating factors are: 1. An enhanced BAC (0.15 or above); 2. A subsequent offense and; 3. A vehicular accident.

Under Virginia Code 18.2-270, a Blood Alcohol Concentration (BAC) of 0.15 or higher triggers mandatory minimum jail time. The impact of an elevated BAC on mandatory minimum jail time depends on how high the BAC is and whether the charge is a first offense or a subsequent offense. For a first offense with a BAC 0.15-0.20, the mandatory minimum jail sentence is 5 days. For first offenses with BACs over 0.20, the mandatory minimum increases to 10 days. These respective mandatory minimums are doubled when involving a DUI that is a second or subsequent offense. See the DUI penalty chart for more information.

A subsequent offense is another major aggravating factor for a DUI case. Also under Virginia Code 18.2-270, a second offense triggers mandatory minimum jail time of either 10 days or 20 days depending on when the prior offense was committed. These mandatory minimums are in addition to any mandatory minimum jail time that is triggered as a result of an enhanced BAC. Additionally, a conviction of a second offense means a lengthy license suspension of 36 months with a portion of that suspension without restricted privileges by statute. As one would guess, these penalties get even worse for a 3rd or subsequent offense which is considered a felony. For more information on penalties for a subsequent offense, see our DUI penalty chart.

The final aggravating factor for a DUI case is when the driving in question results in a vehicular accident. Unlike the other two factors discussed, an accident does not trigger a statutory sentencing enhancement for a DUI charge except when associated with another criminal offense (e.g. vehicular homicide). The reason that this is an aggravating factor lies in why drunk driving is criminalized to begin with: it is activity that endangers public safety and preservation of property. Thus, the occurrence of an accident in a DUI case brings to fruition the reason drunk driving is illegal and so seriously punished.

Nonetheless, not all hope is lost. Though these are aggravating factors that are considered in any DUI case, a Fairfax DUI attorney can still help. Perhaps the BAC is marginally elevated? Maybe there is an issue with proving the prior offense? Are there mitigating factors to consider that soften or negate the aggravating factors? Does the vehicular accident affect the ability to prove another element of the DUI case? These are but a few reasons you hire a DUI trial attorney for these situations. Remember that your attorney cannot change the facts of your case. But a skilled DUI attorney in Fairfax can certainly try to create options for you in spite of aggravating factors in your DUI case. To begin building your case, contact Rudolphi Law today.