Whenever people are about to leave a restaurant, bar, or other places where they have been drinking, they always try and estimate their blood alcohol level. You often hear, “I’ve only had three beers over the past two hours. I am perfectly fine to drive home.” Even though this could be correct relating to having a blood alcohol concentration of less than .08, this will not prevent a driver from getting pulled over and charged with a DUI.
If I do not have a blood alcohol level of .08 then how could the officer charge me with a DUI? Section §18.2-266(i) of the Virginia Code simply states that if your blood alcohol level is a .08 or higher, then you are driving under the influence of alcohol. However, under the second section § 18.2-266 of the Virginia Code, §18.2-266(ii), it is unlawful for any person to drive or operate any motor vehicle while under the influence of alcohol. This second section does not include any mandatory blood alcohol level. A driver could be driving with only one Bud Light in their system and still be charged with a DUI.
Although breath or blood tests can provide evidence of intoxication, they “are not necessary or required to prove driving under the influence of alcohol or drugs.” Oliver v. Commonwealth, 40 Va. App. 20, 24, 577 S.E.2d 514, 516 (2003). The observable characteristics of the defendant’s “manner, disposition, speech, muscular movement, the general appearance of behavior” may alone provide sufficient proof of intoxication. Farren v. Commonwealth, 30 Va. App. 234, 240, 516 S.E.2d 253, 256 (1999). However, even if a driver shows signs of intoxication without having a blood alcohol level of .08, the Commonwealth of Virginia still has the burden to prove the defendant was under the influence of alcohol. Fowlkes v. Commonwealth, 194 Va. 676, 74 S.E.2d 683.
See what the Virginia Codes stays about blood alcohol levels: