If someone in Virginia gets a second DUI within 5 to 10 years of the first and had a blood alcohol level of 0.15 or higher, what's the minimum fine: $500 or $1,000?

Subject

Pursuant to Va. Code §§ 18.2-270(B)(2) and 18.2-270(B)(3), the mandatory minimum fine for a second offense of driving while intoxicated committed within five to 10 years of a prior offense, when the offender has a blood alcohol level of .15 or more, is $1,000.

Plain-English summary

Virginia's DUI penalty structure stacks. The basic penalty for a second DUI within five to ten years of a prior offense (under § 18.2-266) is a mandatory minimum fine of $500 and a minimum of 30 days in jail with ten days mandatory. If the defendant's blood alcohol concentration was 0.15 or higher, § 18.2-270(B)(3) adds 10 days of mandatory jail (or 20 days if BAC was over 0.20) and another mandatory $500 fine.

Senator Thomas Norment asked the AG whether the $500 in (B)(3) replaces the $500 in (B)(2) (total $500), or stacks on top of it (total $1,000). The interpretive issue was how to read the two subsections together when both mention a $500 mandatory minimum fine.

The AG said they stack. Total mandatory minimum fine: $1,000. The reasons:

• Section 18.2-270(F) provides expressly that "mandatory minimum punishments imposed pursuant to this section shall be cumulative."
• If the General Assembly had wanted (B)(3) to refer back to the (B)(2) fine, it could have said so. It didn't.
• Reading (B)(3) as merely confirming (B)(2)'s fine would render the last sentence of (B)(3) surplusage. Statutory construction disfavors that result.

Under Va. Code § 18.2-12.1, a "mandatory minimum" fine cannot be suspended in any part. So the $1,000 is real money the defendant must pay.

What this means for you

For drivers charged with a second Virginia DUI within five to ten years and BAC 0.15+

The opinion holds that the mandatory minimum fine is $1,000, not $500, because the $500 fine in § 18.2-270(B)(2) and the $500 fine in (B)(3) stack under the cumulative-punishment rule in § 18.2-270(F), and that no part of a mandatory minimum fine may be suspended under § 18.2-12.1. It also describes the mandatory jail components: a base of 30 days with 10 days mandatory under (B)(2), plus an additional mandatory 10 days for a BAC of 0.15 to 0.20 or 20 days for a BAC over 0.20 under (B)(3).

For Virginia DUI defense attorneys

The opinion holds that § 18.2-270(F) makes the statute's mandatory minimums cumulative, so the (B)(3) BAC-enhancement fine adds to, rather than replaces, the (B)(2) base fine, producing a $1,000 mandatory minimum. It reasons that reading (B)(3) as merely confirming the (B)(2) fine would make the last sentence of (B)(3) surplusage.

For Commonwealth's Attorneys prosecuting second-offense DUIs

The opinion holds that the cumulative structure yields a $1,000 mandatory minimum fine: the $500 base under (B)(2) plus the $500 BAC enhancement under (B)(3), with § 18.2-270(F) supplying the cumulative rule.

For judges

The opinion holds that the $1,000 mandatory minimum fine, like the mandatory jail components, cannot be suspended in any part under § 18.2-12.1, which defines a mandatory minimum fine as one that must be imposed in full without suspension.

Common questions

What's the mandatory minimum fine for a Virginia second DUI within 5-10 years?
$500 under § 18.2-270(B)(2). If the defendant's BAC was 0.15 or higher at the time of the offense, add another $500 under (B)(3), for a $1,000 total mandatory minimum.

Can the judge suspend any of the fine?
No. Under § 18.2-12.1, a mandatory minimum fine must be imposed in full without suspension.

What about the jail time?
Base: 30 days, 10 days mandatory. With BAC 0.15-0.20: additional 10 days mandatory. With BAC over 0.20: additional 20 days mandatory. Mandatory jail time has to be served consecutively per § 18.2-270(F).

Does this opinion apply to first DUIs with BAC over 0.15?
No. The AG addressed only second-offense DUIs within five to ten years. First-offense BAC enhancements have their own statutory subsections.

What if my BAC was right at 0.15?
The statute applies when BAC was "at least 0.15." So 0.15 triggers the 10-day additional mandatory jail and the additional $500 fine.

What's the proper way for a Virginia court to enter the sentence?
The order should reflect both the base mandatory minimum ($500 / 30 days / 10 days mandatory) and the BAC enhancement (additional $500 / additional 10 or 20 days mandatory), with the mandatory minimums clearly identified and not suspended.

Did the legislature really intend this stacking?
The AG read § 18.2-270(F) as removing any doubt. "Mandatory minimum punishments imposed pursuant to this section shall be cumulative, and mandatory minimum terms of confinement shall be served consecutively."

Background and statutory framework

Virginia's DUI statute (§ 18.2-266) makes it unlawful to drive with a BAC of 0.08 or higher (or while otherwise impaired). Section 18.2-270 prescribes penalties, with escalation for repeat offenses and high BAC.

Section 18.2-270(B)(2) sets the second-offense (within five to ten years) base: "a mandatory minimum fine of $500 and by confinement in jail for not less than one month. Ten days of such confinement shall be a mandatory minimum sentence."

Section 18.2-270(B)(3) adds enhancements for high BAC: 10 additional mandatory days at 0.15-0.20 BAC, or 20 additional mandatory days at over 0.20. The last sentence of (B)(3) imposes "a mandatory minimum fine of $500."

Section 18.2-270(F) makes the mandatory minimums cumulative.

The AG's interpretive analysis applied standard tools. "When construing a statute, our primary objective is to ascertain and give effect to legislative intent, as expressed by the language used in the statute" (Cuccinelli, 283 Va. at 425). The Spratley rule against surplusage (298 Va. 187, 195-96 (2019)) provided the second leg: reading (B)(3) as just confirming (B)(2) would make the last sentence of (B)(3) meaningless.

The General Assembly knew how to write a referring-back rule. In other places in the Code it does so explicitly. Here it didn't, so the cumulative-punishment default of (F) controls.

Citations

• Va. Code § 2.2-505 (AG advisory opinions)
• Va. Code § 18.2-12.1 (mandatory minimum definition; no suspension)
• Va. Code § 18.2-266 (DUI offense)
• Va. Code § 18.2-270 (DUI penalty structure)
• Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420 (2012)
• Commonwealth v. Amerson, 281 Va. 414 (2011)
• Davenport v. Little-Bowser, 269 Va. 546 (2005)
• Jackson v. Fidelity & Deposit Co., 269 Va. 303 (2005)
• Moore v. Commonwealth, 27 Va. App. 192 (1998)
• Gunn v. Commonwealth, 272 Va. 580 (2006)
• Alger v. Commonwealth, 267 Va. 255 (2004)
• Barr v. Town & Country Props., Inc., 240 Va. 292 (1990)
• Spratley v. Commonwealth, 298 Va. 187 (2019)
• 2013 Op. Va. Att'y Gen. 39

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: http://www.oag.state.va.us/files/Opinions/2021/21-072-Norment-Issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA

Office of the Attorney General

Mark R. Herring
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

December 30, 2021

The Honorable Thomas K. Norment, Jr.
Member, Senate of Virginia
Post Office Box 6205
Williamsburg, Virginia 23188

Dear Senator Norment:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

Your question relates to the penalties for a second offense of driving while intoxicated committed within five to 10 years of a first offense. Specifically, you ask whether the mandatory minimum fine for such a conviction is $500 or $1000, when the offender is shown to have had a blood alcohol level of .15 or more at the time of the offense.

Applicable Law and Discussion

The penalties for driving while intoxicated are set out in Virginia Code § 18.2-270. Subsections (B)(2) and (B)(3) of the statute prescribe the penalties for a second offense of driving while intoxicated committed within five to 10 years of a first offense, when the offender is shown to have had a blood alcohol level of .15 or more at the time of the offense. Section 18.2-270(B)(2) sets out the base-level penalties for the offense (driving while intoxicated, second offense within five to 10 years of a first offense), while § 18.2-270(B)(3) deals with circumstances in which the offender has a blood alcohol level of .15 or more at the time of offense:

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

B.3. Upon conviction of a second offense within 10 years of a prior offense, if the person's blood alcohol level as indicated by the chemical test administered as provided in this article or by any other scientifically reliable chemical test performed on whole blood under circumstances reliably establishing the identity of the person who is the source 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 additional mandatory minimum period of 10 days or, (ii) if the level was more than 0.20, for an additional mandatory minimum period of 20 days. In addition, such person shall be fined a mandatory minimum fine of $500.

Answering your question involves determining whether §§ 18.2-270(B)(2) and -270(B)(3), when read together, impose a mandatory minimum fine of $500 or $1000. "When construing a statute, our primary objective is 'to ascertain and give effect to legislative intent,' as expressed by the language used in the statute." Further, "[a] principal rule of statutory interpretation is that courts will give statutory language its plain meaning." The Virginia Court of Appeals has held that "it is axiomatic that a convicted criminal defendant must be sentenced according to the range of punishments authorized for the crime of which he was convicted." "However, courts are bound 'by the plain meaning of unambiguous statutory language and may not assign a construction that amounts to holding that the General Assembly did not mean what it actually has stated.'"

Section 18.2-270(B)(2) governs repeat driving under the influence convictions within ten years after a prior offense. The language regarding punishment is without controversy and clearly imposes "a mandatory minimum fine of $500 and by confinement in jail for not less than one month. Ten days of such confinement shall be a mandatory minimum sentence."

Section 18.2-270(B)(3) governs repeat driving under the influence convictions within ten years after a prior offense and with increased blood alcohol level. A person convicted under § 18.2-270(B)(3) faces increased confinement, depending on their blood alcohol level, and "a mandatory minimum fine of $500."

The General Assembly desired to make all mandatory minimum punishments cumulative, and did so, as evidenced by § 18.2-270(F), when they unequivocally stated, "mandatory minimum punishments imposed pursuant to this section shall be cumulative, and mandatory minimum terms of confinement shall be served consecutively." Therefore, in my opinion, a person convicted under § 18.2-270(B)(3) would receive an additional fine of $500 to that contained in § 18.2-270(B)(2).

If the General Assembly had intended subsection (B)(3) to refer back to the mandatory minimum fine of $500 already established in subsection (B)(2), it could have used words to this effect. It did not. Instead, the General Assembly directed in subsection (F) of the statute that "[m]andatory minimum punishments imposed pursuant to this section shall be cumulative." The absence of any language in subsection (B)(3) indicating that the $500 mandatory minimum fine relates back to the fine already established in subsection (B)(2), in addition to the express language of subsection (F) requiring cumulative punishments, leads me to conclude that the effect of clause in subsection (B)(3) is to impose a second mandatory minimum fine that applies when a person who is convicted of a second offense of driving while intoxicated has a blood alcohol level of .15 or more.

Conclusion

Accordingly, it is my opinion that pursuant to §§ 18.2-270(B)(2) and 18.2-270(B)(3), the mandatory minimum fine for a second offense of driving while intoxicated committed within five to 10 years of a prior offense, when the offender has a blood alcohol level of .15 or more, is $1,000.

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General