Virginia DUI Blog

The History of DUI/DWI in Virginia – Part 16 & 17 of 17

By Jeff Martin – Michael C. Tillotson, LLC – Attorneys at Law

Under the combined influence of alcohol and drugs

            The offense of driving under the combined influence of alcohol and any drug or drugs, § 18.2-266 (iv), is similar to driving under the influence of drugs.  Just as in clause (iii), clause (iv) places the focus upon whether the driver had consumed enough drugs and alcohol to impair his ability to operate the motor-vehicle, engine or train safely. 

 DUI and commercial vehicles

            Section 46.2-341.24 Code of Virginia provides:

1. It shall be unlawful for any person to drive or operate any commercial motor vehicle (i) while such person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams per 210 liters of breath as indicated by a chemical test administered as provided in this article; (ii) while such person is under the influence of alcohol; (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any commercial motor vehicle safely; (iv) while such person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to drive or operate any commercial motor vehicle safely; or (v) while such person has a blood concentration of any of the following substances at a level that is equal to or greater than: (a) 0.02 milligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c) 0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3,4- methylenedioxymethamphetamine per liter of blood.
2. It shall be unlawful and a lesser included offense of an offense under provision (i), (ii), or (iv) of subsection A of this section for a person to drive or operate a commercial motor vehicle while such person has a blood alcohol concentration of 0.04 percent or more by weight by volume or 0.04 grams or more per 210 liters of breath as indicated by a chemical test administered in accordance with the provisions of this article.

                The five means of committing a violation of § 46.2-341.24 mirror the provisions of Virginia Code § 18.2-266.  For the sake of brevity, this work will only discuss violations of § 46.2-341.24 where such violation is treated differently than a violation of § 18.2-266.

Under § 18.2-268.2, a person is deemed to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, if he is arrested for violation of § 18.2-266, § 18.2-266.1, or subsection B of § 18.2-272 or of a similar ordinance within three hours of the alleged offense.[1]

            However, where the accused is arrested for violation of Virginia Code § 46.2-341.24 (DUI Commercial Motor Vehicle) or § 46.2-341.31 (Drive a Commercial Motor Vehicle with an alcohol in the blood) the arrest must occur within two hours in order for the implied consent under Virginia Code § 46.2-341.26:2 (Commercial vehicle implied consent) to be applicable.[2]

                Additionally, Virginia Code § 18.2-268.2 mandates that a person, by virtue of having driven on the highways of Virginia, who has been arrested for a DUI offense shall submit to a breath test.[3]   However, the Code section imposes no obligation upon the officer to offer a breath test to the accused.[4]

                The same is not true with regards to the implied consent statute applicable to commercial motor vehicles. Virginia Code § 46.2-341.26:2 provides that:

A. Any person, whether licensed by Virginia or not, who operates a commercial motor vehicle upon a highway as defined in § 46.2-100 in the Commonwealth shall be deemed thereby, as a condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug or both alcohol and drug content of his blood, if he is arrested for violation of § 46.2-341.24 or § 46.2-341.31 within two hours of the alleged offense.

B. Such person shall be required to have a breath sample taken and shall be entitled, upon request, to observe the process of analysis and to see the blood-alcohol reading on the equipment used to perform the breath test. If the equipment automatically produces a written printout of the breath test result, the printout or a copy shall be given to the suspect. If a breath test is not available, then a blood test shall be required.

C. The person may be required to submit to blood tests to determine the drug content of his blood if he has been arrested pursuant to provision (iii), (iv), or (v) of subsection A of § 46.2-341.24, or if he has taken the breath test required pursuant to subsection B and the law-enforcement officer has reasonable cause to believe the person was driving under the influence of any drug or combination of drugs, or the combined influence of alcohol and drugs.

D. If the certificate of analysis referred to in § 46.2-341.26:9 indicates the presence of alcohol in the suspect’s blood, the suspect shall be taken before a magistrate to determine whether the magistrate should issue an out-of-service order prohibiting the suspect from driving any commercial motor vehicle for a 24-hour period. If the magistrate finds that there is probable cause to believe that the suspect was driving a commercial motor vehicle with any measurable amount of alcohol in his blood, the magistrate shall issue an out-of-service order prohibiting the suspect from driving any commercial motor vehicle for a period of 24 hours. The magistrate shall forward a copy of the out-of-service order to the Department within seven days after issuing the order. The order shall be in addition to any other action or sanction permitted or required by law to be taken against or imposed upon the suspect. (emphasis added)

Finally, lest Virginia seem to give preferential treatment to intoxicated drivers of commercial motor vehicles, it must be pointed out that the terms of Virginia Code § 19.2-294.1 are not applicable to a person charged with a violation of Virginia Code § 46.2-341.26:2.  Virginia Code § 19.2-294.1 provides that:

§ 19.2-294.1. Dismissal of one of dual charges for driving while intoxicated and reckless driving upon conviction of other charge 

Whenever any person is charged with a violation of § 18.2-266 or any similar ordinances of any county, city, or town and with reckless driving in violation of § 46.2-852 or any ordinance of any county, city or town incorporating § 46.2-852, growing out of the same act or acts and is convicted of one of these charges, the court shall dismiss the remaining charge.

 A plain reading of the statute reveals that a person charged with driving a commercial vehicle while under the influence and reckless driving under § 46.2-852, arising from the same act or acts may be properly convicted of both offenses, while the drunken driver of a non commercial motor vehicle cannot.

[2] Va. Code Ann. § 46.2-341.26:2 (West 2009).

[3] Va. Code Ann. § 18.2-268.2 (West 2009).

[4] Brown-Fitzgerald v. Com., 51 Va. App. 232, 656 S.E.2d 422 (2008).

Should you find yourself in a DUI/DWI situation in Virginia you can contact Michael Tillotson for a FREE No obligation Case Evaluation by contacting our office today. Michael C. Tillotson, LLC – DUI Defense Attorneys in Virginia. Office 757.969.5197 visit http://www.VaDWIDefenders.com or email us at info@vaduilawyer.org

The History of DUI/DWI in Virginia – Part 13, 14 & 15 of 17

By Jeff Martin – Michael C. Tillotson, LLC – Attorneys at Law

Per se drug violation

The per se violation for specific drugs, § 18.2-266 (v), provides the a driver is in violation if, at the time of driving he or she has a blood concentration of any of the following substances at a level that is equal to or greater than: (a) 0.02 milligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c) 0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood.  Unlike the alcohol per se violation, the per se violation for specific drugs must be proven by a blood test.  However, unlike clause (i), clause (iii) contains no requirement that the blood test for the presence of these specified drugs be conducted in accordance with the provisions of the article.

Charges under this clause are seen where an offender appears to the officer to be impaired, but the breath test either fails to indicate the presence of alcohol, or the result is lower than what would be consistent with the observed level of impairment.

Under the influence of alcohol

            The offense of driving under the influence of alcohol, prohibited under Virginia Code § 18.2-266 (ii), places the focus upon the effect of alcohol upon the driver.  A person has reached a level of intoxication, and is thus “under the influence of alcohol,” when that person has consumed enough alcoholic beverages to “so affect his manner, disposition, speech, muscular movement, general appearance or behavior, as to be apparent to observation.”  Gardner v. Commonwealth, 195 Va. 945, 954, 81 S.E.2d 614, 619 (1954).  The Commonwealth need not prove a threshold level of alcohol in order to sustain a conviction under § 18.2-266 (ii).  Indeed, the “quantity of alcohol consumed by automobile driver, even though not enough to cause legal intoxication, may be sufficient to impair his capacity to perceive dangers with clarity, make decisions with prudence, and operate vehicle with skill and caution required by law.”  Simon v. Commonwealth, 220 Va. 412, 419-20, 258 S.E.2d 567, 572-73 (1979).

Under the influence of a drug or drugs

            The offense of driving under the influence of drugs, under by § 18.2-266 (iii), similarly places the focus upon the effects of the drug or drugs upon the driver.  A driver may be required to submit to a blood test may be required  in order to determine the presence of a drug or drugs in the driver’s system.  See § 18.2-268.2.

The courts may or may not apply the same standard in determining whether a driver was under the influence of drugs as opposed to being under the influence of alcohol.  Unlike clause (ii), a violation of clause (iii) requires proof that the driver was under the influence of a drug (or combination of drugs) “to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely.”

Should you find yourself in a DUI/DWI situation in Virginia you can contact Michael Tillotson for a FREE No obligation Case Evaluation by contacting our office today. Michael C. Tillotson, LLC – DUI Defense Attorneys in Virginia. Office 757.969.5197 visit http://www.VaDWIDefenders.com or email us at info@vaduilawyer.org

The History of DUI/DWI in Virginia – Part 11 & 12 of 17

By Jeff Martin – Michael C. Tillotson, LLC – Attorneys at Law

Means to commit a misdemeanor DUI under the Code of Virginia

There are eleven separate means to commit a violation of misdemeanor DUI under the Code of Virginia.  Five of the means are defined by Virginia Code § 18.2-266 (DUI).  The remaining means are defined by Virginia Code § 46.2-341.24 (Driving Commercial Motor-vehicle While Intoxicated).

Virginia Code § 18.2-266

            Virginia Code § 18.2-266 sets forth the standard for DUI in Virginia.  This section provides that:

It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article, (ii) while such person is under the influence of alcohol, (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, (iv) while such person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, or (v) while such person has a blood concentration of any of the following substances at a level that is equal to or greater than: (a) 0.02 milligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c) 0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood….

            Contained within the statute are two per se offenses and three offenses which involve impaired operation of a motor vehicle.  Clauses (i) and (v), the per se offenses, forbid the operation of a motor vehicle while the defendant has specific substances in his or her system at a certain concentration or higher.  Absent the aggravating factor of two or more prior convictions within the past ten years, a conviction under any clause of § 18.2-266 is a Class 1 Misdemeanor

 Per se alcohol violation

In order to convict a person of driving under the influence of alcohol per se, under clause (i) of § 18.2-266, the Commonwealth is required to prove that said person was 1) driving or operating; 2) a motor vehicle; and 3) submitted to a blood or breath test the results of which indicated a level of alcohol .08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath.

Code § 18.2-266(i) “provides the basis for a presumption that the blood alcohol concentration while driving was the same as indicated by the results of the subsequent test.”[1]  “Unless this presumption is rebutted, the test results are sufficient to establish the concentration of alcohol in the blood at the time of driving.”[2]  Failure to consider relevant evidence offered to rebut this presumption constitutes reversible error.[3]  Virginia law specifically provides that “the admission of blood or breath tests shall not limit the introduction of any other relevant evidence bearing upon any question at issue before the court, and the court shall, regardless of the result of any blood or breath test, consider other relevant admissible evidence of the condition of the accused.”[4]

The more common method of establishing the offense will be through the admission of the results of a breath test.  Less frequently, the prosecution will have to rely upon the results of a blood test.  The intricacies of each method will be discussed in a later chapter.

Practice Commentary

In 2007, the Court of Appeals revisited the rebuttable presumption language used in Davis when it analyzed.  The Court acknowledged “that the words ‘rebuttable presumption,’ as used by the Davis Court, raise a constitutional eyebrow.”[5]  The Court analyzed Virginia Code § 18.2-269 in conjunction with Virginia Code § 18.2-268.10 and determined that this presumption was in fact a permissive inference which did not offend the Due Process clauses of either the Federal or Virginia Constitution.[6]

However, due process requires permissive inferences to have a natural and rational evidentiary relation between the fact proven and the ultimate fact presumed.  United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965).  In Yap, the Court of Appeals declined to rule on Appellant’s assertion that the permissive inferences were unconstitutional because Appellant failed to raise this issue in the trial court.

[1] Yap v. Com., 49 Va. App. 622, 631, 643 S.E.2d 523, 527 (2007) (quoting Davis v. Com., 8 Va. App. 291, 300, 381 S.E.2d 11, 16 (1989)).

[2] Yap, 49 Va. App. at 631, 643 S.E.2d at 527, (quoting Davis, 8 Va. App. at 300, 381 S.E.2d at 16).

[3] See Yap, 49 Va. App. at 637, 643 S.E.2d at 530.

[4] Va. Code Ann. § 18.2-268.10 (West 2009).

[5] Yap, 49 Va. App. at 631, 643 S.E.2d at 527.

[6] Yap, 49 Va. App. at 631, 643 S.E.2d at 527.

Should you find yourself in a DUI/DWI situation in Virginia you can contact Michael Tillotson for a FREE No obligation Case Evaluation by contacting our office today. Michael C. Tillotson, LLC – DUI Defense Attorneys in Virginia. Office 757.969.5197 visit http://www.VaDWIDefenders.com or email us at info@vaduilawyer.org

The History of DUI/DWI in Virginia – Part 9 & 10 of 17

By Jeff Martin – Michael C. Tillotson, LLC – Attorneys at Law

The DUI roadblock in Virginia

            The Virginia Supreme Court ruled 5 years before the United States Supreme Court that DUI roadblocks were constitutional in Lowe v. Commonwealth, 230 Va. 346 (1985).  Jimmy Dale Lowe was stopped along with all the other motorists at a DUI roadblock on a bridge in Charlottesville.  After asking Lowe for his license, the officer observed that Lowe had bloodshot eyes and smelled like alcohol.  The officer asked him to pull over.  After failing the field sobriety tests, Lowe was arrested and subsequently failed a breath test.

            Lowe moved to suppress this evidence claiming that his seizure was unconstitutional under the Fourteenth Amendment’s application of the Fourth Amendment to the states.  The Virginia Supreme Court held that Lowe’s seizure was constitutional.  Five years later, the United States Supreme Court found a similar DUI Exception to the Constitution in Michigan v. Sitz, 496 U.S. 444 (1990).  However, after the Court remanded Sitz, the Michigan Supreme Court held that DUI Roadblocks violated the Michigan Constitution.

Administrative license suspension in Virginia

            In 1989, the Virginia Senate requested a study of administrative license suspension (ALS) on DUI.  The task force returned a recommendation to the Senate to adopt ALS in order to promote public safety and to further deter DUI, even though there were substantial Due Process concerns.[1]  The Virginia ALS statute took effect in 1995.  When a suspected DUI driver refuses to take a road-side breath test, or fails the test, the suspect’s driver’s license is automatically suspended for 7 days without a hearing.  Additionally, the Commonwealth can bring DUI charges.  This caused a brief split in Virginia courts on whether ALS violates the Double Jeopardy Clause.[2]  ALS became another DUI Exception to the Constitution.

[2] J. Linwood Smith, Drunk Driving, Administrative License Suspension, and Double Jeopardy in Virginia: Tench v. Com., 4 Geo. Mason L. Rev. 521 (1996).

Should you find yourself in a DUI/DWI situation in Virginia you can contact Michael Tillotson for a FREE No obligation Case Evaluation by contacting our office today. Michael C. Tillotson, LLC – DUI Defense Attorneys in Virginia. Office 757.969.5197 visit http://www.VaDWIDefenders.com or email us at info@vaduilawyer.org

The History of DUI/DWI in Virginia – Part 8 of 17

By Jeff Martin – Michael C. Tillotson, LLC – Attorneys at Law

Per se DUI in Virginia

            Mothers Against Drunk Driving (MADD) was started in 1980 by Candy Lightner after her 13 year-old daughter was killed by a repeat drunk driver.  The following year, President Ronald Reagan took office with an intention to enact moral legislation.  MADD pushed for tougher penalties, lowering the legal BAC, use of the breathalyzer, roadblocks, and per se laws.  This powerful combination led Congress to create a number of grants to encourage states to adopt stricter DUI laws.  In 1982, Congress conditioned state receipt of Section 408 funds on states adopting a 0.10 BAC per se law.[1]

A per se law is different from the presumption of intoxication laws, in that per se laws make it illegal to drive with a measured BAC of 0.15 (or 0.08 currently).  Intoxication need not be shown, because intoxication is not an element.  Under this strict liability crime driving and blowing a 0.15 is enough for conviction.  In response, Virginia enacted its first per se law in 1984:

It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.15 percent or more by weight by volume as indicated by a chemical test administered in accordance with the provisions of 18.2-268, or (ii) while such person is under the influence of alcohol . . . .[2]

By adding (i) to the preexisting statute, Virginia gave the Commonwealth the ability of convicting a suspect under the per se law in section (i), or of driving under the influence in section (ii).  Under increased lobbying by MADD and others, Virginia lowered the per se limit to 0.10 in 1986.[3]

            Although MADD helped to lower the drunk driver fatality rate by 43%, Candy Lightner quit the organization she founded because she was concerned about their new, radical agenda:

“It has become far more neo-prohibitionist than I had ever wanted or envisioned,” said Mrs. Lightner, who founded MADD after her daughter was killed by a drunk driver. “I didn’t start MADD to deal with alcohol. I started MADD to deal with the issue of drunk driving.” Several years after she left MADD, Mrs. Lightner briefly represented the American Beverage Institute in its fight against the 0.08 percent BAC law.[4]

John Doyle, of the American Beverage Institute, explained:

Drunk drivers involved in fatal accidents have an average BAC of .19 percent, more than twice the legal threshold. To get that drunk, your steak dinner would have to include a whole bottle of wine for yourself, plus at least five cocktails. This kind of alcohol abuse-not a couple enjoying a bottle of wine over dinner-is the real source of today’s drunken-driving problem. Not surprisingly, our measures to crack down on those abusers are failing.”[5]

Lightner agrees, “if we really want to save lives, let’s go after the most dangerous drivers on the road.”[6]

Nevertheless, in 1988, Congress introduced the Section 410 program that required states to enact a per se law of 0.10 BAC or lower.  To continue to receive funds a state had to lower the per se BAC to 0.08 after three years. Virginia adopted the 0.08 in its per se law (§ 18.2-266) and presumption (§ 18.2-269) in 1994.

[2] Va. Code Ann. § 18.2-266 (1984).              

[3] Va. Code Ann. § 18.2-266 (Supp. 1986).

[4] Sam Bresnahan, MADD Struggles to Remain Relevant, The Washington Times, Aug. 6, 2002.

[5] Doyle, supra note 15.

[6] Doyle, supra note 15.

Should you find yourself in a DUI/DWI situation in Virginia you can contact Michael Tillotson for a FREE No obligation Case Evaluation by contacting our office today. Michael C. Tillotson, LLC – DUI Defense Attorneys in Virginia. Office 757.969.5197 visit http://www.VaDWIDefenders.com or email us at info@vaduilawyer.org

The History of DUI/DWI in Virginia – Part 7 of 17

By Jeff Martin – Michael C. Tillotson, LLC – Attorneys at Law

Presumptions of intoxication in Virginia

            In 1956, two years after enacting their first chemical test laws, the Virginia legislature created procedures and presumptions for the use of BAC tests:

(1) If there was at the time 0.05 per cent or less by weight of alcohol in the accused’s blood, it shall be presumed that the accused was not under the influence of alcoholic intoxicants;

(2) If there was at the time in excess of 0.05 per cent but less than 0.15 per cent by weight of alcohol in the accused’s blood, such facts shall not give rise to any presumptions that the accused was or was not under the influence of alcoholic intoxicants, but such facts may be considered with other competent evidence in determining the guilt or innocence of the accused;

(3) If there was at the time 0.15 per cent or more by weight of alcohol in the accused’s blood, it shall be presumed that the accused was under the influence of alcoholic intoxicants.”[1]

The advent of the blood test and presumptions led to higher conviction rates.[2]  The Driving While Intoxicated Act of 1975 lowered the presumptive threshold by 33%:

(2) . . . in excess of 0.05 percent but less than 0.10 percent . . . such facts shall not give rise to any presumptions . . .

(3) If there was at the time 0.10 percent or more by weight by volume of alcohol in the accused’s blood, it shall be presumed that the accused was under the influence of alcoholic intoxicants.[3]

§ 1:8    Per se DUI in Virginia

            Mothers Against Drunk Driving (MADD) was started in 1980 by Candy Lightner after her 13 year-old daughter was killed by a repeat drunk driver.  The following year, President Ronald Reagan took office with an intention to enact moral legislation.  MADD pushed for tougher penalties, lowering the legal BAC, use of the breathalyzer, roadblocks, and per se laws.  This powerful combination led Congress to create a number of grants to encourage states to adopt stricter DUI laws.  In 1982, Congress conditioned state receipt of Section 408 funds on states adopting a 0.10 BAC per se law.[4]

A per se law is different from the presumption of intoxication laws, in that per se laws make it illegal to drive with a measured BAC of 0.15 (or 0.08 currently).  Intoxication need not be shown, because intoxication is not an element.  Under this strict liability crime driving and blowing a 0.15 is enough for conviction.  In response, Virginia enacted its first per se law in 1984:

It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.15 percent or more by weight by volume as indicated by a chemical test administered in accordance with the provisions of 18.2-268, or (ii) while such person is under the influence of alcohol . . . .[5]

By adding (i) to the preexisting statute, Virginia gave the Commonwealth the ability of convicting a suspect under the per se law in section (i), or of driving under the influence in section (ii).  Under increased lobbying by MADD and others, Virginia lowered the per se limit to 0.10 in 1986.[6]

            Although MADD helped to lower the drunk driver fatality rate by 43%, Candy Lightner quit the organization she founded because she was concerned about their new, radical agenda:

“It has become far more neo-prohibitionist than I had ever wanted or envisioned,” said Mrs. Lightner, who founded MADD after her daughter was killed by a drunk driver. “I didn’t start MADD to deal with alcohol. I started MADD to deal with the issue of drunk driving.” Several years after she left MADD, Mrs. Lightner briefly represented the American Beverage Institute in its fight against the 0.08 percent BAC law.[7]

John Doyle, of the American Beverage Institute, explained:

Drunk drivers involved in fatal accidents have an average BAC of .19 percent, more than twice the legal threshold. To get that drunk, your steak dinner would have to include a whole bottle of wine for yourself, plus at least five cocktails. This kind of alcohol abuse-not a couple enjoying a bottle of wine over dinner-is the real source of today’s drunken-driving problem. Not surprisingly, our measures to crack down on those abusers are failing.”[8]

Lightner agrees, “if we really want to save lives, let’s go after the most dangerous drivers on the road.”[9]

Nevertheless, in 1988, Congress introduced the Section 410 program that required states to enact a per se law of 0.10 BAC or lower.  To continue to receive funds a state had to lower the per se BAC to 0.08 after three years. Virginia adopted the 0.08 in its per se law (§ 18.2-266) and presumption (§ 18.2-269) in 1994.

[2] See John Paul, Use of Blood Tests as Evidence of Intoxication in Virginia, 18 Wash. & Lee L. Rev. 370, 373 (1961).

[3] Va. Code § 18.2-269 (Supp. 1975).

[4] Introduction, http://www.nhtsa.dot.gov/people/injury/research/pub/alcohol-laws/08History/1_introduction.htm.

[5] Va. Code Ann. § 18.2-266 (1984).              

[6] Va. Code Ann. § 18.2-266 (Supp. 1986).

[7] Sam Bresnahan, MADD Struggles to Remain Relevant, The Washington Times, Aug. 6, 2002.

[8] Doyle, supra note 15.

[9] Doyle, supra note 15. 

Should you find yourself in a DUI/DWI situation in Virginia you can contact Michael Tillotson for a FREE No obligation Case Evaluation by contacting our office today. Michael C. Tillotson, LLC – DUI Defense Attorneys in Virginia. Office 757.969.5197 visit http://www.VaDWIDefenders.com or email us at info@vaduilawyer.org

The History of DUI/DWI in Virginia – Part 6 of 17

By Jeff Martin – Michael C. Tillotson, LLC – Attorneys at Law

Chemical test legislation: Voluntary becomes implied consent

            In 1954, Virginia enacted its first voluntary chemical test legislation. While “no person shall be required to submit” to a blood test, any arrested person was entitled to request a blood test.  The code also clarified that the prosecution could not use a suspect’s failure to request a blood test against them in court.[1]  This law nullified the Virginia Supreme Court case of Gardner v. Commonwealth, 195 Va. 945 (1954), that held that introduction of such testimony did not violate the accused constitutional right against self-incrimination.  As drivers realized that asking for a blood test resulted in a greater chance for their conviction, fewer suspects requested blood tests.  In the two years between 1958 and 1960, there were 12% less blood tests given.[2]

            Alarmed by the growing number of fatal highway accidents due to intoxication, the General Assembly in 1958 requested a research study to suggest possible solutions.[3]  The committee returned after studying the problem for a year and recommended an implied consent law.  The act of driving on a Virginia highway is an implied consent to be tested.  Failure to submit to a test automatically results in the driver’s loss of license.  The purpose of this legislation was to deter drunk drivers from getting behind the wheel and to increase the conviction rate for those who did drink and drive.[4]  After failing in 1960, the bill was passed by overwhelming majorities in 1961.  Section 18.1-55 (Supp. 1962) provided in part:

(b) Any person, whether licensed by Virginia or not, who operates a motor vehicle upon a public highway in this State on and after July one, nineteen hundred sixty-two, shall be deemed thereby to have agreed as a condition of such operation to consent to, and shall be entitled to, have a sample of his blood taken for a chemical test to determine the alcoholic content thereof if he is arrested . . . .

A refusal to submit to a blood test resulted in a 90 day license suspension.

In 1971, the Virginia Code was amended to allow anyone arrested for DUI to request a breath analysis.[5]  An implied consent blood test would follow this preliminary analysis.  Refusal to request breath analysis would not be admissible evidence.

            Within a year, submission to breath tests was mandated.  The code was changed to read that “any person whether licensed by Virginia or not, who operates a motor vehicle upon a public highway in this State . . . shall be deemed thereby, as a condition of such operation, to have consented to have a sample of his blood or breath taken . . . .”[6]  The Virginia Supreme Court had already decided that there was no constitutional right to consult with counsel before taking a BAC test.[7]

[2] Note, Virginia’s Implied Consent Statute: A Survey and Appraisal, 49 Va. L. Rev. 386 (1963) [hereinafter Note].

[3] Note, supra note 30, at 386.

[4] Note, supra note 30, at 386.

[5] Va. Code § 18.1-4.1 (Supp. 1971).

[6] Va. Code § 18.1-55(b) (Supp. 1972).

[7] Deaner v. Com., 210 Va. 285 (1969).

Should you find yourself in a DUI/DWI situation in Virginia you can contact Michael Tillotson for a FREE No obligation Case Evaluation by contacting our office today. Michael C. Tillotson, LLC – DUI Defense Attorneys in Virginia. Office 757.969.5197 visit http://www.VaDWIDefenders.com or email us at info@vaduilawyer.org

The History of DUI/DWI in Virginia – Part 4 & 5 of 17

By Jeff Martin – Michael C. Tillotson, LLC – Attorneys at Law

The loss of right in contrast to penalties

The General Assembly increased the penalty for subsequent DUI violations of the Prohibition Law in 1924.  Perhaps more importantly, in 1936 the General Assembly adopted a provision that a DUI conviction “shall of itself” deprive the convicted of the right to operate an automobile for one year.  The General Assembly has consistently claimed that their dual purpose was to punish the drunk driver and keep them off the roads.[1] The Supreme Court of Virginia explained this issue in Commonwealth v. Ellett, 174 Va. 403 (1939):

The right of a citizen to travel upon the public highways is a common right, but the exercise of that right may be regulated or controlled in the interest of public safety under the police power of the State. The operation of a motor vehicle on such highways is not a natural right. It is a conditional privilege, which may be suspended or revoked under the police power. The license or permit to so operate is not a contract or property right in a constitutional sense.

These same issues surfaced again when Virginia put in place administrative license suspension in 1995.

Chemical testing in Virginia

Until the advent of chemical testing, many prosecutions for driving under the influence were unsuccessful.[2] First, it was hard to define and quantify “under the influence.”  The courts had to rely on the General Assembly’s definition of intoxication: “Any person who has drunk enough alcoholic beverages to so affect his manner, disposition, speech, muscular movement, general appearance or behavior, as to be apparent to observation, shall be deemed to be intoxicated.”[3] Second, field observations were not always accurate.  For example, the scent of alcohol on one’s breath does not mean that one is intoxicated; looking dazed and disoriented after an accident may have been from injury; and blood-shot eyes can be an indicator of allergies, rather than intoxication.

With the rise of modern science, law enforcement started to rely upon chemical tests of the blood, breath and urine.  Chemical testing of suspected drunk drivers was enacted for the first time in the United States in Maine in 1939.[4] It took until 1954, for Virginia to make blood tests mandatory.[5] Prior to this a driver accused of DUI in Virginia could volunteer to submit to chemical testing, the results of which would be admissible.

The first tests measured the content of alcohol in venous blood.  While blood testing was generally more accurate, it was also expensive, invasive and time consuming.[6] It was sometimes hard for officers to find a nurse or doctor to draw the blood and harder still for prosecutors to ensure their attendance at hearings and trials.[7] Urine testing, while easier, did not always accurately reflect actual impairment.[8] Due to these problems, scientists concentrated on developing an accurate method of determining BAC by measuring breath alcohol concentrations.

The Drunk-o-meter was invented by Professor Harger at Indiana University in 1936.  It was heralded as “the very first stable breath-testing instrument.”  It would be the first of many “accurate” instruments each being replaced by a much more accurate machine.  The Drunk-o-meter required a suspect to blow up a balloon.  The air in the balloon was passed through a potassium permanganate chemical solution inducing a color change from purple to clear when alcohol was present.  The blood alcohol concentration (BAC) was then estimated.

The Drunk-o-meter first appeared in the Virginia Supreme Court case of Omohundro v. Arlington County, 194 Va. 773 (1953).  Mr. Omohundro was pulled over by an Arlington County police officer after the officer observed erratic driving.  After obtaining the consent of Omohundro:

he gave the latter an ‘alcoholic influence examination.’ He observed that the ‘balance‘ of the defendant was fair, and his ‘walking and turning’ fair to uncertain; that in both the ‘finger to nose’ and ‘picking up coins’ tests he was uncertain; that his clothes were ‘orderly;’ and that ‘his attitude polite, cooperative, but very talkative.’  He furthermore observed that the eyes of the defendant were watery and bloodshot and his speech ‘fair.’ In addition, Fuschman said that he tested the alcoholic content of the breach [sic] of the defendant through the use of a machine commonly known as the ‘Drunk-O-Meter,‘ and that the reading of the machine was ‘.21.’[9]

Omohudro objected to the introduction of the Drunk-o-meter test because the officer had not made a control test of the ‘Drunk-O-Meter‘ machine immediately before or after the test was given to the defendant; and that he did not know whether or not the machine was accurate; that his entire training in the use of the machine consisted of approximately two days’ instruction, and he had never had any laboratory training or instruction in the analysis and evaluation of such tests.[10]

Omohundro’s objections did not sway the Court and his conviction was affirmed.

The “very stable” Drunk-o-meter was supplanted by the “first practical” breath test in the 1950s because the Drunk-o-meter required frequent recalibrations to be accurate.  The Breathalyzer was invented by Professor Borkenstein in 1954.  The Breathalyzer was another wet chemical test.  But unlike previous devices, the Breathalyzer used standardized prepackaged chemicals, reaction times, and color change analysis.  While still emphatically defending the reliability of previous methods, the Breathalyzer was “arguably the greatest single improvement to breath-testing technology to date.”[11] Of course, the Breathalyzer and other wet chemical tests have now been replaced in Virginia by infrared and fuel cell tests because of their greater “stability, reliability, and automation.”[12]

[2] Ladd & Gibson, Legal-Medical Aspects of Blood Tests to Determine Intoxication, 29 Va. L. Rev. 749 (1943).

[3] Gardner v. Com., 195 Va. 945, 964 (1954).

[4] Gardner, 195 Va. at 964.

[5] Va. Code Ann. § 18-75.1 (Supp. 1954).

[6] Jeanne Swartz. Prosecutors Research Inst. Breath Testing for Prosecutors, 3 (2004), http://www.ndaa.org/ pdf/breath_testing_for_prosecutors.pdf.

[7] Swartz, supra note 21, at 3.

[8] Swartz, supra note 21, at 3.

[9] Omohundro v. Arlington County, 194 Va. 773, 775 (1953).

[10] Omohundro, 194 Va. at 775-76.

[11] Swartz, supra note 19, at 10.

[12] Swartz at 11.

Should you find yourself in a DUI/DWI situation in Virginia you can contact Michael Tillotson for a FREE No obligation Case Evaluation by contacting our office today. Michael C. Tillotson, LLC – DUI Defense Attorneys in Virginia. Office 757.969.5197 visithttp://www.VaDWIDefenders.com or email us at info@vaduilawyer.org