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Can I Be Arrested in Virginia for A DUI Even if I Haven't Had Anything to Drink?

Nov. 30, 2018

A charge of driving under the influence (DUI) of alcohol is a serious charge in the Commonwealth of Virginia. While most people think of the typical "drunk driver" when thinking about DUI charges, some drivers can be arrested for alleged drinking and driving when they never had a drink.

If you have been arrested for DUI in Virginia, experienced Virginia DUI attorney Bryan J. Jones is here to defend your case and protect your rights.

I Didn't Drink. Can I Be Arrested for DUI?

The short answer is...yes. Sadly, innocent people are wrongfully arrested on DUI charges all the time. Law enforcement make mistakes from time to time, and it can happen to anyone. Even a completely sober driver can be mistaken for an intoxicated driver under the right circumstances.

Reasons a Driver May Appear Impaired

Certain internal and external influences can make a person appear drunk, even when they are 100% sober.

Medical Conditions

Certain medical conditions may cause a person to appear intoxicated even when they are not. For example:

  • Diabetes: A diabetic "episode" may cause a person to act irrationally, angrily, or very confused. If the officer is unaware the person is diabetic or does not understand the symptoms, a false DUI arrest may be made.

  • Epilepsy: Epilepsy may cause seizures, "blank outs," and confused or illogical thinking. Epilepsy may also cause a crash after a person passes out. Police are much more used to drunk drivers passing out at the wheel than those suffering from epilepsy.

  • Brain injuries: Brain injuries may cause a person to speak differently, move differently, or other unexpected symptoms that may mimic intoxication.

  • Alzheimer's disease or dementia: Those with Alzheimer's disease or dementia can appear confused, may slur speech, and may even become combative with officers.

Anxiety Disorders

People with an anxiety disorder may appear flustered, nervous, and unable to articulate clear thoughts when under the stress of a traffic stop; especially when that traffic stop turns into a hunt for signs of intoxication. Severe anxiety may induce a panic attack, which to the uneducated observer may appear like intoxication.

Physical Disabilities

Physical disabilities may make it difficult to perform field sobriety tests, causing a person to appear drunk when sober. Field sobriety tests can produce inaccurate results, and more so when a person is physically unable to perform them even while sober.


Certain medications can cause people to exhibit signs of intoxication, such as bloodshot eyes, drowsiness, trouble balancing, and other symptoms.

Driving Under the Influence of Medication

A person can be convicted of a Virginia DUI for driving under the influence of medication. This includes both over the counter and prescription drugs. Certain medications are known to cause a person to drive like a "drunk" driver, such as:

  • Ambien and other sleeping pills

  • Oxycodone, Hydrocodone, Vicodin, and other pain pills

  • Medical marijuana

  • Decongestants

  • Cough medicines

  • Antihistamines and other allergy medications.

Nearly any medication could theoretically cause symptoms that mimic or actually cause intoxication. When medication affects a person's thinking, motor skills, or reaction time, the potential for a DUI charge raises considerably.

Drinking, but Not Driving

A person who drinks while in his or her car, but does not actually drive, can still be charged with a DUI in Virginia. Virginia law prohibits "operation" of a vehicle while under the influence of alcohol or drugs. "Operation" does not just mean driving but is a far broader term.

The classic case is the driver who knew they were too drunk to drive, so chose instead to "sleep it off" in the car. In such a case, you could be charged with DUI. If you are behind the wheel of a vehicle and intoxicated, you could face harsh DUI penalties in Virginia.

Certain facts may make it more or less likely that you will be charged for drinking while not driving:

  • Was the vehicle on?

  • Where were you parked? (e.g., private driveway, public parking lot, side of the road)

  • Were the keys in the ignition?

  • What seat were you sitting in?

Each case is fact-dependent, and you should consult with your Virginia defense attorney about your case.

Consult an Experienced Virginia DUI Attorney

If you have been charged with DUI in the Commonwealth of Virginia, the penalties are serious and you face the potential for jail, high fines, and the loss of your driver's license. Knowing your rights when it comes to sober driving or driving while under the influence of drugs is an important part of protecting yourself against criminal charges.

You do not have to face this process alone. To protect your constitutional rights, you need Virginia DUI attorney Bryan J. Jones to defend your case. Contact us today to schedule an initial consultation to discuss your case.