Clause (ii) of Virginia Code 18.2-266 states:
“It shall be unlawful for any person to drive or operate any motor vehicle, engine or train … (ii) while such person is under the influence of alcohol …”
How can they convict me of drunk driving without a blood or breath test?
Prosecutors sometimes call this conviction you the “old fashion way.” The first DUI law was written in Virginia in 1916 – the same year Virginia mandated Prohibition. The first Virginia breath test “Drunk-o-meter” case on record was in 1953 (though it would take years for breath testing to become commonplace.) In the half century without commonplace chemical testing, police tried to prove intoxication by testifying about the defendant’s slurred speech, swaying, stumbling, bloodshot eyes, etc.
Today, these same clues are often linked with agility exercises (called standardized field sobriety tests) to prove that you are under the influence.
The law says, “It shall be unlawful for any person to drive or operate any motor vehicle, engine or train … (ii) while such person is under the influence of alcohol …” Virginia Code 18.2-266
But, how can you tell when you are drunk? Impaired? Under the influence?
Virginia courts have defined being under the influence as “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).
That is a really low threshold! When we ask clients in our Questionnaire how they know if they are drunk they usually respond with things like “when I can’t walk straight” which is a lot worse than “muscular movement” is affected. What makes it worse is that the prosecutor will try to show that alcohol affected your muscular coordination by how poorly you did of the field sobriety tests. Without a good defense it doesn’t matter that many people can’t pass those agility tests even when completely sober! When I took the NHTSA Training course in Fairfax, I didn’t pass all the tests – and I was sober!
How do I know whether they are trying to convict me based upon my breath test or impairment?
You don’t. The DWI statute states: “A charge alleging a violation of this section shall support a conviction under clauses (i), (ii), (iii), (iv), or (v).” In Virginia, as long as they charge you with a violation of Virginia Code 18.2-266, a judge can convict you of driving at or above a 0.08%, impaired, impaired by drugs, impaired by a combination of drugs and alcohol.
What the law says:
§ 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.