Attorneys at Law
Driving under the influence of drugs
Driving under the influence is unfortunately still one of the most common criminal offenses affecting drivers in Virginia. From the tragedies that result and the headlines they create, it’s hard to imagine a Virginia driver who is unfamiliar with the crime. As a Class 1 misdemeanor the punishment carries the possibility of a twelve month jail sentence, a $2500 fine and a 12 month suspension of your operator’s license. Despite the possible punishment, the lure of alcohol and the bravado incident to its consumption have made DUI offenses the norm on any traffic court’s docket. While most drivers are aware of the dangers of combining alcohol and automobiles, many are a lot less familiar with driving under the influence of drugs or a combination of drugs and alcohol. Virginia Code Section 18.2-266 is divided into five clauses each characterizing a slight difference in the evidence required for conviction. Clause (i) classifies the most common, driving with a Blood Alcohol Content of .08 or greater. Clause (ii) of the Code is more general and simply prohibits driving while under the influence of alcohol. Clause (iii) prohibits driving while under the influence of intoxicants or any drug that impairs your ability to operate a motor vehicle and clause (iv) prohibits driving under the influence of a combination of alcohol and drugs. Finally clause (v) prohibits driving with specified amounts of cocaine, methamphetamines, PCP, or MDMA / Ecstacy in your blood stream. The most common evidence gathered by law enforcement in any DUI case comes from the roadside tests. In almost every DUI situation involving a police stop, the officer will almost certainly request that the driver perform some roadside tests. These are voluntary scientific tests designed to indicate primarily whether a driver is under the influence of alcohol and to a lesser extent drugs that impair his or her ability to operate a motor vehicle. The results of the tests are used by the officer at the scene to determine probable cause for an arrest and are considered by the court at trial as evidence of intoxication or a lack thereof. Considering the tests involve dexterity, balance and an unerring ability to follow instructions, many people perform much worse than they anticipate on the roadside tests even when sober. Even after an arrest is made for a DUI in Virginia, the gathering of evidence continues. The most common evidence gathered after a DUI arrest involving alcohol comes from a breath test. Under Clause (i), as outlined above, driving with a .08 BAC creates a presumption of guilt. Under Virginia’s Implied Consent Statute, a driver has impliedly consented to have his breath or blood tested for alcohol or drugs by virtue of his operation of a motor vehicle within the Commonwealth. To unreasonably refuse such a test the first time is a civil offense which will result in a 12 month suspension of your operator’s license. A second refusal after a prior conviction is elevated to a criminal offense. To the surprise of some, Virginia does not give the driver the choice between a breath or blood test but leaves such discretion with the arresting officer. In most situations however law enforcement is more likely to seek a breath test when only alcohol is suspected. Blood tests are by far the least common in your normal DUI arrest. Because Virginia Code creates a preference for a breath test when only alcohol is suspected, and probably because blood tests inconveniently entail a medical professional, law enforcement will only seek a blood test under specific circumstance. For example, if you are involved in an accident that requires medical attention, the ready availability of a nurse and the unavailability of a breathalyzer at the hospital will make a blood test preferable. Another circumstance that warrants a blood test is when the driver is unable to perform a breath test; this usually occurs when the defendant is unconscious in a hospital bed. A third example is when drugs are suspected. When a DUI involves drug use, law enforcement has little choice between the two tests since drug use will not register on a breath test. Any combination of the evidence outlined above can be used in conjunction against a defendant at a DUI trail as well. For example a breath test registering below .08 may be combined with evidence of very poor performance on roadside tests and thus result in a conviction. Or a low breath test result presented with a blood test showing drugs use and testimony from an expert explaining the resulting intoxication of such a cocktail could result in conviction. Even in situations where breath and blood tests have been refused, the roadside tests results may prove sufficient for conviction. The above analysis only provides a glimpse of the complex laws surrounding the offense of driving under the influence and the evidence required for conviction in Virginia. It should not be considered a substitute for an actual consultation with an attorney. The specific facts and circumstances of any DUI charge should be fully considered with the assistance of an attorney before any decision is made that could impact your driving privileges, your finances and most importantly your freedom.