Welcome to S & R Law Firm
Member of:
Second and Third Offense DUI in Virginia
A second or third DUI charge can mean mandatory jail, a lengthy loss of your license and, in some cases, a felony conviction. But the charge on the warrant is only the starting point. The Commonwealth must prove the new DUI and establish that the earlier convictions qualify for the increased penalties.
Our lawyers examine both parts: the evidence from the new arrest and the records supporting each alleged prior offense. One attorney takes responsibility for your case, supported by the experience and insight of our team. We explain what the prosecution must prove, what can be challenged and what needs attention before court.
At a Glance
| Charge | Class | Mandatory minimum jail | Mandatory minimum fine | License loss on conviction |
| Second offense, less than 5 years after the prior | Class 1 misdemeanor | 20 days (sentence of 1 month to 12 months) | $500 | 3 years |
| Second offense, 5 to 10 years after the prior | Class 1 misdemeanor | 10 days (sentence of at least 1 month) | $500 | 3 years |
| Third offense within 10 years | Class 6 felony | 90 days | $1,000 | Indefinite |
| Third offense, all three within 5 years | Class 6 felony | 6 months | $1,000 | Indefinite |
| Fourth or later offense within 10 years | Class 6 felony | 1 year | $1,000 | Indefinite |
| A subsequent DUI after certain qualifying manslaughter, maiming or felony DUI convictions | Class 6 felony | 1 year | $1,000 | Indefinite |
Mandatory minimums cannot be suspended: the court must impose the entire mandatory term of confinement and the full minimum fine (§ 18.2-12.1).
These are the base penalties. An elevated blood alcohol level or a child passenger can add mandatory punishment. Mandatory jail terms under § 18.2-270 are cumulative and run consecutively, subject to the applicable statutory maximum.
Second Offense DUI in Virginia
A second offense is a Class 1 misdemeanor, so the maximum is 12 months in jail and a $2,500 fine. Within that range, the court must impose the mandatory minimum jail and fine shown above, plus these additions where they apply:
• High blood alcohol level: if the test showed 0.15 through 0.20, the court adds at least 10 more days of mandatory jail; above 0.20, at least 20 more days. Either elevated-BAC category also adds a $500 mandatory minimum fine.
• A passenger 17 or younger: at least five more mandatory days and an added fine of $500 to $1,000. See our page on DUI with a minor in the car.
• Your license: a second conviction within 10 years takes away your privilege to drive for three years from the date of conviction, and the court takes your license (§ 18.2-271). The three years don’t start to run until you surrender it. DMV also revokes the license and won’t reinstate it until you complete the alcohol safety program, if the court ordered it (§ 46.2-391).
• Restricted license: the court may allow a restricted license for good cause. It requires enrolling in the Virginia Alcohol Safety Action Program (VASAP) within 15 days and an ignition interlock on each vehicle you own or that is registered to you, for at least 12 consecutive months without alcohol-related violations (§ 18.2-271.1, § 18.2-270.1). The current statute sets no waiting period before a restricted license. Our ignition interlock page explains how the device works.
The license problem starts before trial. When you are charged with a second offense and the breath test showed 0.08 or more (0.02 or more if you are under 21), or you are charged with refusing the test, your license is suspended for 60 days, or until trial if that comes sooner, but never less than seven days. Since July 1, 2026, you can ask the general district court for a restricted license with an ignition interlock during that suspension, and interlock time before trial counts toward any later interlock period (§ 46.2-391.2).
Third Offense DUI Is a Felony
Three DUI offenses within 10 years make the third a Class 6 felony. A Class 6 felony carries one to five years in prison, or, at the discretion of the jury or the court, up to 12 months in jail and a fine of up to $2,500, either or both (§ 18.2-10). The mandatory minimum of 90 days, or six months if all three offenses were within five years, applies within that range, along with a $1,000 minimum fine. A fourth offense within 10 years carries a mandatory minimum of one year.
Certain prior convictions trigger a separate rule. After a conviction for an offense listed in § 18.2-270(C)(2), including felony DUI and specified manslaughter or maiming offenses, a later Virginia DUI is a Class 6 felony with a one-year mandatory minimum and a $1,000 minimum fine. That provision does not impose a 10-year limit on the qualifying prior.
• Your vehicle: a vehicle solely owned and operated by the accused during a felony DUI is subject to seizure and forfeiture, through a separate proceeding the Commonwealth can file after the arrest (§ 18.2-270, subsection C).
• Your license: a third conviction within 10 years revokes your license indefinitely (§ 18.2-271, § 46.2-391). When the administrative-suspension requirements are met, a third-offense charge also produces a suspension lasting until trial. The restricted-license petition available during a pending second-offense suspension does not extend to a pending third offense.
• Driving again: an indefinite revocation requires a circuit-court petition. Section 46.2-391(C) provides different routes, including an interlock-restricted license before five years, an employment-related restricted license ordinarily after three years, and possible restoration after five years. Eligibility depends on the particular route, a VASAP evaluation and the findings required by the statute. A conviction entered after successful completion of a qualifying specialty docket can affect the three-year waiting rule.
• The court process: a felony DUI usually starts with a preliminary hearing in the general district court, where the court decides whether there is “reasonable ground to believe” you committed the offense (§ 19.2-218). If it goes forward, it is tried in circuit court, where you can have a jury. Our Virginia criminal defense page explains how felony cases move.
A felony conviction also reaches beyond the sentence. It is a felony record, and Virginia law bars people convicted of a felony from possessing a firearm unless their rights are later restored under law (§ 18.2-308.2).
How Prior Offenses Are Counted
Whether a charge is a second or third offense is often the most important question in the case. It is a legal question that requires more than looking at the number of entries on a driving record.
• The time limits run between offenses. The statute counts a second offense “committed within less than five years after a prior offense” or “within a period of five to 10 years of a prior offense” (§ 18.2-270). The dates that matter are the offense dates. For the ordinary second-offense penalties, an offense more than 10 years before the new one does not count; a separate rule applies to a later DUI after certain DUI manslaughter, DUI maiming or felony DUI convictions.
• The prior has to be a conviction. An adult conviction counts, or a finding of guilty for a juvenile. An earlier arrest, or a DUI charge that ended in a dismissal or a conviction for something else, such as reckless driving, is not a prior DUI conviction.
• Out-of-state and other priors. A DUI conviction from another state or under federal law counts if that law is “substantially similar” to Virginia’s, and so do local DUI ordinances, commercial-vehicle DUI, DUI manslaughter and DUI maiming (§ 18.2-270, subsection E). Whether another state’s law is substantially similar can be a real question.
• The charging papers matter. The three-year license loss applies when you are “tried on a process alleging a second offense” (§ 18.2-271), and the 60-day arrest suspension applies when the summons or warrant “charges the person with a second or subsequent offense” (§ 46.2-391.2). We read the charging papers and the prior records side by side.
Refusal counts differently. A second refusal of a breath test is a Class 1 misdemeanor with a three-year license loss if, within 10 years before the refusal, you were found guilty of DUI or an earlier refusal. A repeat refusal of a blood test stays a civil offense, but it also carries a three-year loss (§ 18.2-268.3). See our breath test refusal page.
How We Defend a Second or Third DUI
A repeat charge is still a DUI charge, and the Commonwealth has to prove it the same way. We start with the stop and the arrest: whether the officer had a lawful reason to stop you, and whether there was probable cause to arrest you for DUI under § 18.2-266. Then the evidence: field sobriety tests and how they were given, the breath test and its paperwork, and for a blood test, how the sample was handled and analyzed. If blood was drawn, the state lab keeps the rest of the sample for at least 90 days after its analysis, and before that period ends you can ask the court, by motion, to send it to an independent lab (§ 18.2-268.7). If drugs are alleged, the proof is different; see our drug DUI page.
Then we test the prior convictions: the dates, the court records, whether each one was a DUI conviction and whether an out-of-state law is substantially similar. A charge that can’t be proved as a second or third offense carries a different set of penalties.
Mitigation is a separate conversation from the defense of the charge. Enrolling in treatment or VASAP, or installing an interlock before trial, can matter at sentencing, and we talk through whether and when to do it once we know the facts.
Other Consequences of a Repeat DUI
• DMV record: a DUI carries six demerit points (§ 46.2-492). The points count toward DMV’s point totals for two years, and the conviction stays on your DMV record for 11 years (DMV).
• Criminal record: the criminal conviction itself is permanent. DUI is on the list of offenses that can’t be sealed by petition (§ 19.2-392.12, subsection L).
• Driving while revoked: driving during a DUI-related revocation is a crime (§ 18.2-272). After a second- or third-offense revocation, it carries a mandatory 10 days in jail, and it becomes a felony with a one-year mandatory minimum if the driving endangers others or you are driving under the influence again (§ 46.2-391, subsection D).
Working With NOVADefenders
DUI defense is central to our practice. We represent people facing repeat DUI charges throughout Northern Virginia, including Fairfax, Prince William, Arlington and Loudoun. Our work includes examining the new charge, checking whether the alleged priors qualify, addressing license restrictions and preparing the case for trial or another resolution.
If this is your first DUI charge, our Virginia DUI lawyer page and our overview of DUIs in Virginia cover the first-offense rules.
Frequently Asked Questions
Is a second DUI a felony in Virginia?
An ordinary second DUI within 10 years is a Class 1 misdemeanor. But a prior felony DUI or another qualifying conviction listed in § 18.2-270(C)(2) can make the new DUI a felony even if it is only your second DUI conviction. A third DUI within 10 years is also a Class 6 felony.
How far back does Virginia look for a prior DUI?
Ordinarily, Virginia looks back 10 years for second- and third-offense penalties, with higher minimums when the offenses were less than five years apart. The years are counted between offense dates. A separate rule makes a later DUI a felony after certain DUI manslaughter, DUI maiming or felony DUI convictions, without a 10-year limit.
Does a DUI from another state count as a prior in Virginia?
It can. A conviction under another state’s law counts if that law is substantially similar to Virginia’s DUI law. Whether it is depends on the other state’s statute, and that is worth checking.
Will I go to jail for a second DUI in Virginia?
A conviction for a second DUI within 10 years carries mandatory jail: at least 10 days, or 20 days if the offenses were less than five years apart. An elevated BAC or child passenger can add mandatory days.
The court cannot suspend a mandatory minimum. Whether the Commonwealth can prove the new DUI and the qualifying prior is the question we examine first.
Can I get a restricted license after a second DUI?
You may be able to. The court can allow a restricted license for good cause, with VASAP and an ignition interlock on each vehicle you own for at least 12 months without violations. While the charge is pending, you can ask the general district court for a restricted license during the 60-day suspension.
Can I drive after a third DUI in Virginia?
An indefinite revocation does not end automatically. You must obtain relief through the circuit court and satisfy the requirements for the particular restricted-license or restoration route. Those requirements include a VASAP evaluation and findings about your history, rehabilitation and driving safety.
Can a second or third DUI be sealed?
No. DUI is one of the offenses that can’t be sealed by petition, so the conviction stays on your criminal record. The DMV record is separate and keeps it for 11 years.
How much does a lawyer for a second or third DUI cost?
It depends on the charge, the court and the work the case needs. We tell you our fee up front. Court fines and costs are separate.
Talk With Us About a Second or Third DUI
Bring us the new charging papers and whatever records you have from the earlier cases. We will examine the allegations, the dates and the evidence, explain the potential penalties, and discuss how we would approach your defense.
Call 703.273.6431 at any hour and you will speak with a real person. The consultation is free, and you can also contact us online.