Virginia Drinking While Driving Ticket (§ 18.2-323.1): Fines, 3 Points & What to Do

It's a long drive home, the cooler is in the back seat, and a cold can seems harmless at a red light. You take a sip, set it in the cupholder, and a minute later blue lights fill your mirror. You're not drunk, and you may be well under the legal limit, but the officer isn't writing you up for DUI. The charge is drinking while driving.

Many Virginians assume the state has no open container law, so a drink behind the wheel is a gray area. It isn't. Drinking while driving is a criminal misdemeanor in Virginia, it carries 3 DMV demerit points, and an open container in the car can be used to presume you were drinking. This guide covers what the law says, the fine and points, how insurers react, and how a DMV-approved driver improvement course can help you recover.

What Is Drinking While Driving in Virginia?

The law is Va. Code § 18.2-323.1. Subsection A makes it unlawful for any person to consume an alcoholic beverage while driving a motor vehicle on a public highway in Virginia. Your blood alcohol content doesn't matter. One sip while the vehicle is in operation is enough.

Virginia does not ban open containers outright the way many states do. Instead, § 18.2-323.1(B) creates a rebuttable presumption that the driver was drinking if all three of these are true:

• there is an open container of alcohol in the passenger area of the vehicle;

• some of the contents of that container have been removed; and

• the driver's appearance, conduct, odor of alcohol, speech or other physical characteristics suggest they have been drinking.

An open container is any vessel holding an alcoholic beverage other than the original, sealed manufacturer's container. The passenger area includes the driver's seat, anything within the driver's reach (including an unlocked glove compartment) and the passenger seats. It does not include the trunk, the cargo area behind the last upright seat of a van, wagon, hatchback or SUV, the living quarters of a motor home, or the passenger area of a bus, taxi or limousine carrying passengers for hire.

Because the presumption is rebuttable, you can present evidence that you weren't drinking. For a deeper look at how containers are treated, see our guide to the Virginia open container law.

Fines & DMV Demerit Points

Under Va. Code § 18.2-323.1(D), drinking while driving is punishable as a Class 4 misdemeanor. Va. Code § 18.2-11 sets the penalty for a Class 4 misdemeanor at a fine of up to $250. There is no jail time for the offense itself, but court costs are added and the conviction is criminal, not a simple traffic infraction.

The bigger danger is what usually comes with it. If the officer believes you're impaired, you can be charged with DUI under Va. Code § 18.2-266 as well, a 6-point offense with mandatory license revocation. Drivers under 21 face Virginia's zero-tolerance rules at much lower BAC levels. Read our guides to Virginia DUI laws and the underage zero-tolerance law to understand those risks.

To learn the difference between criminal charges and infractions on your record, see traffic infraction vs. misdemeanor in Virginia.

How It Affects Car Insurance

Insurers set their own rules, but any alcohol-related conviction is a red flag. Even without a DUI, a drinking-while-driving conviction tells an underwriter that alcohol was in play behind the wheel. That can mean a surcharge at renewal, the loss of a good-driver discount, or a non-renewal with some carriers. If a crash was involved, the effect is far greater.

Your insurer will see the conviction on your motor vehicle record, regardless of how the DMV counts points. Learn more in insurance points vs. DMV points, and see how a driver improvement course may lower your car insurance.

What to Do After a Drinking-While-Driving Charge

1. Decide whether to contest it. This is a criminal charge, so it's worth a close look. Was the container actually open and partly empty? Was it in the passenger area, or in the trunk or cargo area? Did the officer see you drink, or rely on the presumption? Because the presumption can be rebutted, facts like who the container belonged to can matter. Many drivers talk to a traffic attorney before court; see traffic lawyer vs. driver improvement course.

2. Or pay the fine. If the charge is prepayable in your court, paying is a guilty plea. You'll have a misdemeanor conviction and 3 points on your record. Our prepaid traffic ticket guide explains how prepayment works.

3. Take the driver improvement course. A voluntary 8-hour Virginia course adds +5 safe driving points, which more than offsets the 3 points from this conviction. If a judge orders the course, register with the code shown on your court paperwork. Enroll online and finish at your own pace.

4. Monitor your driving record. Check that the conviction and any safe driving points posted correctly. Then make a simple rule: alcohol rides sealed, in the trunk or behind the last row of seats, every time.

Virginia Driver Improvement Course Codes Explained

When you register for a Virginia driver improvement course, you choose a reason code. The code tells the DMV why you are taking the class and whether you should receive the +5 safe driving points.

Most drivers who sign up on their own choose VOL, which credits +5 safe driving points once every 24 months. If a judge sent you, use YCT or NCT based on your court paperwork, because the court decides whether you receive safe driving points. Not sure which code fits? Ask us before you start.

Frequently Asked Questions

Does Virginia have an open container law?
Not a flat ban. Va. Code § 18.2-323.1 makes drinking while driving illegal and creates a rebuttable presumption that you were drinking if an open, partly consumed container is in the passenger area and you show signs of drinking.

How many points is drinking while driving in Virginia?
The DMV assigns 3 demerit points. The points stay active for two years, and the conviction stays on your DMV record for three years.

Can passengers drink in a car in Virginia?
The statute targets the driver. But any open container in the passenger area can support the presumption against the driver if the driver shows signs of drinking. The exceptions are buses, taxis and limousines carrying passengers for hire, and the living quarters of a motor home.

Enroll Today and Put This Behind You

One sip shouldn't define your driving record. Offset the points and refresh the safe-driving habits that keep you clear of alcohol-related charges. Enroll today — $74.99, DMV-approved, 30-day guarantee. Start your 8-hour Virginia driver improvement course now, 100% online.