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:
- 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.
- 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
