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DUI, DWI & Criminal Legislation in Virginia  

Virginia 18.2-266 DUI/DWI/Driving while intoxicated , section: 18.2-266

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Substantive DUI/Excess Alcohol Offense, Virginia DUI/DWI 18.2-266

Code of Virginia 18.2-266 states that it is unlawful for any person to drive or operate any motor vehicle, while such person has a blood alcohol concentration of .08% or more. Therefore, there is a legal, rebuttable presumption one is driving under the influence of alcohol at .08 BAC and above. Such is DUI/DWI per se.

However, one may be convicted of Virginia DUI/DWI even if one's BAC is below .08 as 18.2-266 goes on to state that if the person is proven to be "under the influence of alcohol" or under the "influence of drugs," he may be convicted of driving under the influence of intoxicants.

Generally, prosecutors prove Virginia DUI cases under the per se portion of the statute - in cases where there is a BAC certificate showing that the defendant had a blood alcohol level of .08 or more. In cases where the defendant refused testing or in cases where defense counsel is able to keep the certificate from coming into evidence, the prosecutor may prove that the person is guilty of a 18.2-266 violation by showing that the defendant was “under the influence” of alcohol or drugs. Such proof usually is comprised of the defendant's driving behavior, field sobriety tests, and other indicia of intoxication.

Comments : Most laypersons and attorneys are confused by the per se issue in Virginia. The .08 BAC is a REBUTTABLE presumption. In cases involving .08,.09, and .10 BAC, it is always beneficial to challenge the government with the use of expert witnesses. For a list of Bose Law Firm wins in cases where the client's BAC is above .08, see www.vatrafficlaw.com and click the wins link from the second paragraph. Attorney line: 703-926-3900

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