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
