Most people believe that if you have a BAC (Blood Alcohol Content) under 0.08, you are safe to drive and cannot be charged with DUI (DWI). However, in Virginia, that is not the case. Consuming any amount of alcohol prior to driving will impair a driver’s ability to operate a motor vehicle safely. Popular culture has ingrained in us the belief that the “legal limit” is 0.08.
Virginia does not follow this bright line rule. Virginia actually assigns a presumption either for or against intoxication depending on the specific results of a BAC test.
This standard is codified in Virginia statute §18.2-269 Presumptions from alcohol or drug content of blood.
The statute reads in part that:
- If there was at that time 0.05 percent or less by weight by volume of alcohol in the accused’s blood or 0.05 grams or less per 210 liters of the accused’s breath, it shall be presumed that the accused was not under the influence of alcohol intoxicants at the time of the alleged offense;
- If there was at that time in excess of 0.05 percent but less than 0.08 percent by weight by volume of alcohol in the accused’s blood or 0.05 grams but less than 0.08 grams per 210 liters of the accused’s breath, such facts shall not give rise to any presumption that the accused was or was not under the influence of alcohol intoxicants at the time of the alleged offense, but such facts may be considered with other competent evidence in determining the guilt or innocence of the accused;
- If there was at that time 0.08 percent or more by weight by volume of alcohol in the accused’s blood or 0.08 grams or more per 210 liters of the accused’s breath, it shall be presumed that the accused was under the influence of alcohol intoxicants at the time of the alleged offense
Meaning that if your BAC is 0.05 or below it is presumed that you are not intoxicated. If BAC is 0.08 or above it is presumed that you are intoxicated. A BAC of 0.06 or 0.07 is the grey area in the law. If the test results fall into that narrow range there is no presumption as to intoxication.
However, someone who blows 0.06 or 0.07 can still be charged with DUI in Virginia. The Commonwealth will simply need to introduce other factors into evidence to persuade the court that the accused was intoxicated beyond a reasonable doubt.
If you have questions about a driving under the influence charge in Richmond, Henrico, Chesterfield, or the surrounding counties, please contact the attorneys of Winslow & McCurry, PLLC at (804)423-1382 or email us at info@wmmlegal.com.
