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CrimDefense, CriminalDefenseAtty
Category: Criminal Law
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Experience:  10+ years defending Misdemeanor and Felony cases.
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question about dui in Virginia

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question about dui in Virginia
Hi! I will be the professional that will be helping you today. I look forward to providing you with information to help solve your problem.

Good evening. What is your question?
Customer: replied 4 years ago.

Is it true that someone can be charged with dui in VA for a BAC of just .048 %?



Yes, it is true. The reason being is that the BAC level is only one factor for the police to consider when deciding to charge a person with DUI. It goes to support the allegation but is not definitive. I have provided the statute for you below. As you can see after (i), there are five other ways in which a person can be charged with a DUI.

§ 18.2-266. Driving motor vehicle, engine, etc., while intoxicated, etc.

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. A charge alleging a violation of this section shall support a conviction under clauses (i), (ii), (iii), (iv), or (v).

For the purposes of this article, the term "motor vehicle" includes mopeds, while operated on the public highways of this Commonwealth.
Customer: replied 4 years ago.

But, what would it take for a cop to stop a person if the person has a BAC less than .08%?


At least with .08, the person is probably driving erratically (i.e., over the line)

There is no way of knowing what the drivers BAC is prior to the breath test. First, the officer would need to have probable cause to stop the vehicle and there would need to be something with the driving pattern or thoughts of impairment or a traffic violation, for the officer to stop the vehicle. Once that happens, the officer would need to make physical observations to believe the person had been drinking and to conduct an investigation. It would be all those things paired with the BAC, to show impairment and that the driver was under the influence.
Customer: replied 4 years ago.

Based on the statute, it looks like it's saying that a BAC < .08 AND a drug is a DUI charge.


But, what if the person only has a BAC of .048 AND "NO" drugs..could they still get a DUI?

While they could still be charged, the State is going to need more evidence to try and show impairment. If they proceed, the low level is favorable to the defendant, to show they were under the legal limit. Over the level of .08, could be used as evidence to support being impaired but it would also need to be shown their normal faculties are impaired. Even though the person was arrested, once the case gets turned over to the State for prosecution, they may not proceed.
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