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
