Posted by: virginiaduiblog | February 9, 2010

Drunk Driving, Specifically in Virginia, Can Be Costly

The following article appeared on the Navel Safety Center website at the following link http://safetycenter.navy.mil/ashore/articles/motorvehicle/nsc05014.htm

Drunk Driving, Specifically in Virginia, Can Be Costly

By Dan Steber, Naval Safety Center Traffic Safety

The Naval Safety Center is partnering with local, state and nationwide agencies to help prevent private-motor-vehicle mishaps and deaths. At a recent meeting of Southeast Virginia’s Impaired Driver Prevention Committee in Virginia Beach, this group discussed several joint projects and changes in state law that are of interest to local Sailors and anyone planning a trip to Virginia.

The Naval Safety Center and other Navy organizations have been working diligently to find ways to reduce DUI incidents and alcohol-related deaths from traffic wrecks. DUI enforcement is key. Virginia Beach Master Police Officer Brian Woltemath surprised the group when he pointed out that a mandatory jail sentence for a first-time offender is now part of state law.

“Drivers who are driving impaired can go to jail,” Woltemath said. “A person with a .15 to .19 BAC will receive a mandatory sentence of five days in jail. A .20 or higher BAC will land them in jail for 10 days.” He stressed the “mandatory” part of the law. The judge must sentence the first-time offender to jail.

This fact was not well-known to many of the members in attendance and a follow-up survey of Hampton Roads Sailors and Marines showed that few knew about the change or the possibility of jail time for a first offense. PN3 Shahidul Islam, mail yeoman at the Naval Safety Center, said, “I didn’t know about this law, and I’m sure others don’t, either. I don’t drink, but I have friends who do. They should be aware of this potential problem.”

Naval Safety Center stats show that 20 of 73 Navy deaths in FY04 were alcohol-related. A study of BAC rates showed that 19 of 28 people involved in alcohol-related mishaps (includes drivers or passengers not killed) had levels between .10 and .20. Two of those Navy personnel had levels above .20. A recent report on Navywide DUI/DWI incidents shows an increase to the highest level in five years (from 907 in FY00 to 1833 in FY04-a 100 percent increase). These trends are a concern and are being addressed, but every supervisor should be aware of these numbers. It will take involved leaders to help curb this growing problem.

The Director of Shore Safety Programs at the Naval Safety Center, Capt. Bill Glenn, said, “We want every Sailor and Marine in the Hampton Roads area to know about this change. We also want people around the fleet who visit Virginia to know about this change. The easiest way to avoid a DUI is not to drink at all, to follow the designated-driver program, or to use Safe-Ride or Tipsy-Taxi program.”

Other alternatives exist, as well. Some bars and restaurants in parts of the country offer free taxi rides. The designated-driver program is another good option, but the non-drinker must not drink for it to be effective. It pays to have a well-developed plan before going out on the town. Sailors can have a good time, be safe, and return home alive, but they must take the appropriate actions ahead of time to ensure that success. An Air Force base has a program called “0-0-1-3,” which provides a clear set of standards for drivers to remember: zero underage drinking, zero DUIs, one drink an hour, and a maximum of three drinks a night.

The Director of Programs for the Virginia Association of Chiefs of Police, Frank Kowaleski, is a supporter of Virginia’s “Checkpoint Strikeforce,” and he added, “There’s a [DUI] checkpoint happening every week and everywhere in Virginia.” His group is working with the Impaired Driver Prevention Committee to design and distribute cards that can be handed out at sobriety checkpoints that thank responsible drivers for putting up with the stop and for being sober. It also will remind drivers that the slight inconvenience is better than the cost of a DUI ($5,000 to $20,000), the time (jail, even for first-time offenders), and a life (which is priceless).

“It’s imperative that supervisors pass this information to their people because other communities around the country have similar laws,” said Bonnie Revell, traffic-safety specialist at the Naval Safety Center. “Jail time is one heck of a punishment for a night out on the town. It takes just a little planning for a Sailor or Marine to have a good time and to get home safely, avoiding an accident, death or a trip to a courthouse and jail.”

The impaired-driver working group includes representatives from Drive Safe Hampton Roads, Hoffman Beverage, Virginia Beach Police Department, Virginia Checkpoint Strikeforce, AAA Virginia, Virginia DMV, Chesapeake Bay ASAP, and Naval Safety Center. They meet bi-monthly to discuss issues that affect the community and the military.

For more information on strategies to reduce impaired driving, visit the Safe Drive Hampton Roads website at www.drivesafehr.org; Naval Alcohol and Drug Abuse Prevention Program at http://navdweb.spawar.navy.mil/; National Commission Against Drunk Driving (NCADD) website at www.ncadd.com; and National Highway Transportation Safety Administration (NHTSA) website at www.nhtsa.dot.gov. Links and additional information can be found on the Naval Safety Center website at safetycenter.navy.mil/ashore/motorvehicle.

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 at info@vaduilawyer.org

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Posted by: virginiaduiblog | January 4, 2010

Energy Drinks and Alcohol – A Bad Mixure!

ENERGY DRINKS AND ALCOHOL- A BAD MIXTURE

By Dr. Joseph Citron

The popularity of mixing alcohol with energy drinks, such as red bull, is great among the bar scene. The energy drinks significantly reduce the drinkers’ perception of headache, weakness, dry mouth and impairment of motor coordination.
However, the energy drinks DID NOT reduce the deficits caused by alcohol on objective motor coordination testing and visual reaction time.

Likewise, the energy drinks DID NOT alter the blood alcohol concentration or the breath test results.

As a consequence of the drinker not immediately feeling the signs of alcohol when mixed with energy drinks, the drinker will consume more alcohol than otherwise. This increases the probability of accidents and might lead to alcohol dependence.

Research into this area includes journals like Alcohol Clinical Experimental Research which featured two articles, one in 2006 and the other in 2007. These articles measured
test responses after drinking alcohol and alcohol mixed with energy drinks.

The potential problems led to banning of Red Bull for twelve years by France.

American courts have noticed increased BACs (blood alcohol concentration) when the accused admits to mixing alcohol with an energy drink.

Dr. Joseph Citron received his Medical Doctorate (MD) degree from the Albert Einstein College of Medicine in 1971. After completing his residency training in ophthalmology at the Mayo Clinic in Rochester, Minnesota, Dr. Citron established a surgical practice in Atlanta where he became a Board Certified Ophthalmologist. During his career as a practicing physician, Dr. Citron held various positions that included chief of staff of Atlanta Hospital and an AMA delegate from Georgia. Additionally, Dr. Citron lectured on surgical techniques and results at National and International conferences.

Dr. Citron received his J.D. from Georgia State College of Law and combines his knowledge of medicine with the practical aspects of law in several areas. He is a consulting attorney in medical malpractice and nursing home abuse cases, an active litigating attorney, and an expert witness.

Dr. Citron’s most recent publication appears in the June 2007 issue of the Champion, a monthly journal for the National Association of Criminal Defense Lawyers, and discusses the mis-application of the Romberg test administered by police in road-side sobriety tests.

He is admitted to practice before the 11th Circuit Court of Appeals, the United States District Court for the Northern District of Georgia, and all Georgia state trial and appellate courts.

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 at info@vaduilawyer.org

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Posted by: virginiaduiblog | December 29, 2009

The importance of reading breath machine reports in a Virginia DWI/DUI Case by Mark Matney

Mark R. Matney, Virginia DUI/DWI Defense Attorney with Michael C. Tillotson, LLC – Attorneys at Law

A recent case reminded me of the importance of carefully reviewing breath machine reports in DWI cases.  In Virginia, we are able to request a report from the Department of Forensic Science (DFS) when a client provides a breath sample into the Intox EC/IR II breath machine.  DFS is responsible for maintaining and monitoring all of the breath machines in Virginia.

Whenever someone provides a breath sample, the machine generates a Certificate of Blood Alcohol Analysis that identifies the accused and the breath test operator along with the final result of the test.  The test result may either be an error message or a BAC level.  To obtain a valid result, the accused must provide two sufficient breaths in one testing cycle.

What the accused and the breath test operator do not see is sometimes more important than what they do see.  While they only see the limited information described above, the DFS report provides details for the machine used to conduct the test and for each attempted breath sample.  With respect to the machine, the DFS report includes the machine’s trouble call log, maintenance history, and location history.  With respect to the breath samples, the report lists the time and pressure of each sample and records the BAC of each valid breath, whether or not a valid result was obtained during the testing cycle.

In my recent case, I discovered that my client submitted to two sets of breath tests before a valid result of .15 BAC was obtained.  The significance of the .15 BAC is that it triggers enhanced penalties of mandatory jail and installation of an ignition interlock machine.  Upon reviewing the DFS report, I found that during the first set of breaths, my client achieved one valid breath sample amid several insufficient ones.  The one valid breath was a .141 BAC.  The second set of tests resulted in the final result of .15 that was printed on the breath certificate.

If my client had obtained a second valid breath during the first testing cycle, then he would have received the benefit of a standard .14 BAC final breath test result.  However, the .15 final BAC moved him into the enhanced penalty category.  The DFS report revealed a breath sample that was not disclosed to my client or the breath test operator at the time of the breath test and permitted me to demonstrate to the court that my client should receive the benefit of a .14 BAC breath sample.

In this case, the DFS report helped my client avoid 5 days of mandatory jail and the requirement of an ignition interlock machine in his car for 6 months.

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 at info@vaduilawyer.org

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Posted by: virginiaduiblog | December 18, 2009

Court lets drunken driver write off truck damage – on his IRS Tax return!

Happy Holidays Everyone!

Came across this interesting article today:

Drink, drive, wreck the car . . . and write off the damage on your tax return.
For one taxpayer, that scenario became a reality after he appealed a decision by the Internal Revenue Service.
The U.S. Tax Courtlast week allowed a man to write off thousands of dollars in damage after he totaled his pickup while driving drunk.

Drink, drive, wreck the car . . . and write off the damage on your tax return.
For one taxpayer, that scenario became a reality after he appealed a decision by the Internal Revenue Service.

The U.S. Tax Courtlast week allowed a man to write off thousands of dollars in damage after he totaled his pickup while driving drunk.

For the full story Court lets drunken driver write off truck damage!

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 at info@vaduilawyer.org

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Posted by: virginiaduiblog | December 17, 2009

White Bread can cause a positive reading on a portable intoxilyzer used by Virginia State Police.

White Bread DUI:

Roadside breath test devices use a fuel cell to detect the presence of alcohol in the breath of the suspected driver. A fuel cell uses alcohol fumes to complete its electric circuit and the more alcohol the stronger the electric circuit. This is the basis of the handheld, portable breath testing device used by police during a stop for suspected DUI. This handheld, portable device lacks some of the reliability features of the larger, more complex station house based devices that are considered evidentiary breath testing machines.

Mouthwash, after shave, colognes, perfumes are all alcohol containing compounds that are known to trigger positive fuel cell responses. Even over the counter cold medicines like nyquil contain alcohol and will trigger a positive fuel cell response.

But white bread?  YES!

White bread can cause a positive reading with a portable, handheld roadside fuel cell test.  Recently Mr. Tillotson did a demonstration of this at the Yorktown County Courthouse where both he and his client initially tested at zero level, then ate a slice of white bread and immediately afterwards tested at .027% and .031% BAC! The test used the same machine brand and model currently used by Virginia police.

This is a scary result! A positive result on the handheld portable device is very influencial when the police officer is deciding to make a DUI arrest.

This occurs because the yeast in the bread mixes with the saliva and this produces a chemical structure that will complete the fuel cell circuitry. The yeast and bread do not form alcohol! This demonstration shows that the fuel cell technology is not specific for alcohol.

Another area of concern regarding this lack of specificity of the fuel cell technology is when a car is equipped with an interlock device. The car will not start if the interlock device registers positive for the presence of alcohol. Fuel cell technology is used in the interlock machines. Recently eaten food can cause a failure of the interlock device and the driver is ‘locked out.’ The car will not start and a report is generated by the monitoring company.

This type of scenario resulted in a driver charged with probation violation and he was sentenced to 60 days in jail and loss of his driver’s license. On appeal, Mr. Tillotson successfully reversed the sentence with careful review of the interlock monitoring logs and demonstrating the ‘white bread’ effect on the fuel cell technology. It was a wonderful Christmas present for the client because the appeal was the week before Christmas.

Dr. Joseph Citron received his Medical Doctorate (MD) degree from the Albert Einstein College of Medicine in 1971. After completing his residency training in ophthalmology at the Mayo Clinic in Rochester, Minnesota, Dr. Citron established a surgical practice in Atlanta where he became a Board Certified Ophthalmologist. During his career as a practicing physician, Dr. Citron held various positions that included chief of staff of Atlanta Hospital and an AMA delegate from Georgia. Additionally, Dr. Citron lectured on surgical techniques and results at National and International conferences.

Dr. Citron received his J.D. from Georgia State College of Law and combines his knowledge of medicine with the practical aspects of law in several areas. He is a consulting attorney in medical malpractice and nursing home abuse cases, an active litigating attorney, and an expert witness.

Dr. Citron’s most recent publication appears in the June 2007 issue of the Champion, a monthly journal for the National Association of Criminal Defense Lawyers, and discusses the mis-application of the Romberg test administered by police in road-side sobriety tests.

He is admitted to practice before the 11th Circuit Court of Appeals, the United States District Court for the Northern District of Georgia, and all Georgia state trial and appellate courts.

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 at info@vaduilawyer.org

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Posted by: virginiaduiblog | December 3, 2009

Fatigue and DWI/DUI – Lack of sleep looks and acts like intoxication.

Lack of sleep looks and acts like intoxication. Fatigue or lack of sleep slow reaction time, make you unsteady on your feet and can affect speech as well as other cranial nerve functions.

These are the same issues looked at by an arresting officer during a DUI roadside evaluation. There are standardized field sobriety tests that the arresting officer will administer and score. Two of these tests are divided attention tests where there is an instruction phase followed by the performance phase. The walk and turn, for example, has the subject stand with one foot in front of the other, hands at their side, while listening and observing the instructions. Then the subject performs the test. The judging includes both the instruction phase and the performance phase.

Alcohol, at a certain level, will prevent a subject from doing the test correctly. Likewise, fatigue will also affect the performance of divided attention testing.

Fatigue usually occurs after 18 hours of sustained wakefulness.

Workplace studies have shown that fatigue can mimic the reaction time and field study results of an alcohol concentration between .05 and .10% BAC.

The only difference between the fatigued individual and a person under the influence of alcohol is the odor of alcohol!

Otherwise, the scoring on the police standardized field tests and other time reaction testing are very similar between the fatigued person and the drinker.

American, Canadian and Australian work place studies are all in agreement that a person awake for more than 18 hours will have slower reaction times, be more uncoordinated and have trouble with simple commands, such as give me your driver’s license. This means that driving while fatigued can be dangerous.

This has been a subject of concern for the US Department of Transportation. Tired, unattentive or fatigued drivers are involved in more accidents and traffic violations than alert, well rested drivers. This might fit the description of reckless driving.

This is very different than driver under the influence of alcohol and/or drugs.

Dr. Joseph Citron received his Medical Doctorate (MD) degree from the Albert Einstein College of Medicine in 1971. After completing his residency training in ophthalmology at the Mayo Clinic in Rochester, Minnesota, Dr. Citron established a surgical practice in Atlanta where he became a Board Certified Ophthalmologist. During his career as a practicing physician, Dr. Citron held various positions that included chief of staff of Atlanta Hospital and an AMA delegate from Georgia. Additionally, Dr. Citron lectured on surgical techniques and results at National and International conferences.

Dr. Citron received his J.D. from Georgia State College of Law and combines his knowledge of medicine with the practical aspects of law in several areas. He is a consulting attorney in medical malpractice and nursing home abuse cases, an active litigating attorney, and an expert witness.

Dr. Citron’s most recent publication appears in the June 2007 issue of the Champion, a monthly journal for the National Association of Criminal Defense Lawyers, and discusses the mis-application of the Romberg test administered by police in road-side sobriety tests.

He is admitted to practice before the 11th Circuit Court of Appeals, the United States District Court for the Northern District of Georgia, and all Georgia state trial and appellate courts.

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 at info@vaduilawyer.org

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Posted by: virginiaduiblog | November 24, 2009

Holiday Traffic Tickets – The real cost of speeding tickets!

Thanksgiving Traffic Ticket Guide
by Reilly Brennan | AOL AutosPosted: Nov, 24 2009

Thanksgiving is one of the most traveled weekends of the year, which also makes it one of the most accident-prone. The full article http://autos.aol.com/gallery/thanksgiving-ticket-guide

Hidden Costs of speeding tickets
They Can Affect Your Life Insurance Posted: Nov, 08 2009

You’re returning from a perfect weekend getaway, and a trooper nabs you while you’re still out of state.

Do you admit guilt, drop the payment envelope in the mail, and have it be historyor do throw it in the trash and hope it just goes away?

Read the rest of the article: http://autos.aol.com/article/speeding-tickets-real-cost

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

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Posted by: virginiaduiblog | November 19, 2009

Virginia DWI/DUI Defense Lawyer obtains training on ECIR II

Virginia DUI/DWI Defense Lawyer, Michael C. Tillotson, Successfully Acquires Training On Controversial New Alcohol Breath Testing Equipment Area’s DUI/DWI attorney fights through deliberate efforts to restrict training access, seeks to defend clients against inaccuracies of new equipment. Virginia – October 26th, 2009 – Michael C. Tillotson, founding partner of the Law Office Michael C. Tillotson, LLC which defends clients accused of DUI/DWI in all of Virginia, went to great lengths to obtain training on Virginia’s new alcohol breath testing machine, thereby insuring his clients will be protected from unjust DUI/DWI convictions.

The ECIR II machine has become the sole model used for administering alcohol breath tests in the Commonwealth of Virginia, replacing the outdated Intoxilyzer 5000. This change has been accompanied by an attempt by the machine’s manufacturer, Intoximeters, Inc., and the Department of Forensic Science to block Virginia DUI/DWI attorneys from training with the new machines. The state making the ECIR II the key to its prosecution of DUI offenders, combined with the lack of opportunity for Virginia DUI attorneys to familiarize themselves with the new machines, makes Virginia citizens accused of DUI/DWI more vulnerable to conviction than ever before.

As an experienced attorney dedicated solely to defending DUI/DWI cases, Tillotson made it his duty to obtain the training on the ECIR II that is so critical to properly defending his clients’ rights. The lockdown on training in Virginia forced him to travel to Ohio, where he received over 12 hours of hands-on training and reviewed hundreds of slides and tests with a certified ECIR II trainer.

This training, along with his own independent investigation, led Tillotson to discover several flaws with the ECIR II that will prove crucial to defending his clients. A combination of factors could lead the ECIR II to produce inaccurate results, including unwarranted assumptions made on the individual being tested, inadequate alcohol detection in the mouth and mistaking certain chemicals for ethanol. Because the state will primarily rely on the data from these machines to prosecute DUI/DWI cases, now more than ever it is critical for those accused of DUI/DWI to have an experienced DUI/DWI attorney that is trained on the ECIR II and knows its weaknesses. Tillotson’s long track record of defending Virginia citizens in DUI/DWI cases, along with his extensive research into the weaknesses of the ECIR II, makes him a great ally to anyone facing a DUI charge in Virginia.

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

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Posted by: virginiaduiblog | November 4, 2009

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

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.

 

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

[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

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Posted by: virginiaduiblog | November 3, 2009

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

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

 

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