Criminal Defense

Driving Under the Influence - §18.2-266

 

Driving under the influence, or sometimes called DUI, is an offense that involves driving after voluntary intoxication. In order for someone to be convicted of this offense the Commonwealth must prove that an individual operated a motor vehicle while under the influence.  

 

Operation of the Motor Vehicle

Importantly, there is no requirement that a person be on a highway of the Commonwealth. Operating a motor vehicle anywhere in the Commonwealth—a driveway, a field, a golf course – while under the influence of alcohol or drugs is a violation of this statute. The term “operation” is crucial to the Commonwealth being able to prove their case. Operation can be proven in obvious ways such as an officer or other witness watching a person driving. A person can also be conserved to be operating the vehicle if they are behind the seat of the wheel with the keys in the ignition—even if the vehicle is parked and not turned on. Operation can be simply starting the engine, or manipulating the mechanical or electrical equipment of the vehicle.

 

Circumstantial evidence can also be used to prove operation under the influence. A person involved in a single car crash, sitting in the highway can be found to be in operation based on statements they make. As an example, if they tell the officer that no one else was with them and they had no alcohol after the crash. Also, the officer might observe no alcohol in the vehicle to corroborate their statements.  

 

Implied Consent

 As previously mentioned, there is no requirement for a person to be on a “public highway” for someone to be in violation of this statute. Implied consent, however, is only applicable when a person is on a public highway. Implied consent is a law that you agree to in order to operate a vehicle on the highways of Virginia. Essentially, if someone is driving on a public highway and there is probable cause to believe that person is under the influence of alcohol or drugs, they must submit to a breath or blood test. If they do not, and their refusal was unreasonable, they could face civil or criminal penalties.

 

The first question then becomes, what exactly is a public highway. A public highway is a roadway that is open to public use for vehicular traffic. That essentially means most places you can legally drive your car, however, there some exceptions. Those standalone shops that can prevent all vehicles from entering their property at anytime would be an exception to this. A mall, large shopping center, or an apartment complex would all be considered public roads under the implied consent law.

 

The next element of this law is that the arrest must happen within 3 hours of the driving, except in certain rare exceptions. That is, if the Commonwealth cannot prove that the person was arrested within 3 hours of the time of driving, then the Certificate of Analysis showing the person’s Blood Alcohol Content would not be admissible. As an example, the commonwealth may not know the time a single vehicle crash occurred – the last time of driving—if the accused did not tell the officer. In this situation, no proof can be presented to the Court that the arrest occurred within 3 hours of the last time of driving, so the specific Blood Alcohol Content of the accused would not be admissible evidence.

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