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.
[1] Va. Code § 18.1-57 (Repl. Vol. 1960).
[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