Virginia Code Section 18.2-266 (ii) is Virginia's DUI law. This law makes it unlawful to drive or operate a motor vehicle while "under the influence of alcohol."

A person is "under the influence of alcohol" when that person has consumed a sufficient amount of alcohol to "so affect his manner, disposition, speech, muscular movement, general appearance or behavior, as to be apparent to observation."

There is no requirement under this subsection of the DUI statute that the driver operating the motor vehicle be doing so with a BAC of .08% or more. With respect to intoxication, the Commonwealth need only prove that the "quantity of alcohol consumed by the automobile driver, even though not enough to cause legal intoxication, [was] sufficient to impair his capacity to perceive dangers with clarity, make decisions with prudence, and operate [the] vehicle with [the] skill and caution required by law."

Therefore, in Virginia, a driver or operator of a motor vehicle can be prosecuted under the DUI statute even where his BAC level was below .08%.

In Virginia a first and a second DUI are misdemeanor offenses, however, a third DUI will be prosecuted as a felony if the prior DUI offense was committed within 10 years the current offense. The penalties for a DUI conviction may result in jail time, a license suspension, ignition interlock requirement, and completion of a VASAP course.

Virginia Code Section 18.2-266 (ii) reads "it shall be unlawful for any person to drive or operate any motor vehicle, engine... while such person is under the influence alcohol."

Below I address the following:

1. The legal definition of "under the influence of alcohol"
2. What the Commonwealth is required to prove you show a person was "under the influence"
3. The possible defenses to Virginia Code Section 18.2-266 (ii)
4. The penalties of a violation of Virginia Code Section 18.2-266 (ii)

Please contact me if you have any questions relating to this article.

1. The legal definition of "under the influence of alcohol"

Even where the results of an official breath test at the jail shows the driver was not driving with a BAC of .08% or more the Commonwealth may still try to prove the driver was operating the vehicle pursuant to Virginia Code Section 18.2-266 (ii).

Required elements

Under Virginia's DUI statute, the Commonwealth's Attorney must provide sufficient evidence that the defendant:
1. Drove or operated a motor vehicle, and
2. Was under the influence of alcohol at the time of the operation of the motor vehicle

1. This article focuses on the "under the influence" prong of the statute, for more information on the "driving or operating" element please see my page on this topic.

2. "Under the influence of alcohol"
Pursuant to Virginia case law, a driver is under the influence of alcohol when as a result of drinking alcohol, "his manner, disposition, speech, muscular movement, general appearance or behavior, [is so affected] as to be apparent to observation.”

The Commonwealth is not required to prove a certain threshold level of intoxication in order to obtain a conviction under this subsection of the DUI law.

Virginia case law has held that a person may have an odor of alcohol on his breath but not have been drinking to excess, and may also exhibit conduct that creates the appearance of intoxication, but where the person is actually suffering from a physical condition over which she has no control.

In other words just because a driver was driving a car in a manner consistent with someone who has consumed alcoholic beverages, it does not automatically mean the driver was driving under the influence of alcohol. This is simply a factor the judge or jury may consider when assessing the evidence in the case.

2. What the Commonwealth is required to prove you show a person was under the influence

In order to prove their case the prosecutor will try to show the driver was under the influence of alcohol, and this is typically done through the officer's investigation, and more specifically his personal observations about the behavior and statements with respect to consumption of alcohol.

The officer will testify about all of the things that the driver did that are consistent with operating a motor vehicle under the influence of alcohol as defined in Virginia case law.

His testimony will typically include observations about the driver's physical appearance, performance on field sobriety tests, the manner in which the driver was driving (in non-accident cases) and statements made with respect to consumption of alcohol.

Testimonial evidence by the officer

In many DUI cases the officer will try to testify that the driver was:
⦁ weaving or swerving either within his own lane of travel or into other lanes of travel
⦁ driving in an erratic manner
⦁ driving very slowly
⦁ appeared to have been involved in a motor vehicle accident

The officer will typically testify that based on his training and experience the driver:
⦁ had glassy, bloodshot eyes
⦁ was unsteady on his feet
⦁ had the strong odor of alcohol
⦁ had slurred speech

Furthermore, the officer will almost always testify, in effect, that the driver failed his field sobriety tests. It is important to note that the officer should not be allowed to conclude that the driver "failed" any test.

Breath results and their relation to prosecutions under Virginia Code Section 18.2-266 (ii), driving under the "influence of alcohol"

The prohibition against operating a motor vehicle with a BAC of .08 or greater is separate from the prohibition against operating a motor vehicle while under the influence of alcohol. It is possible to have a BAC under .08 but still be guilty of a DUI, where there was sufficient evidence the driver was operating a motor vehicle while under the influence of alcohol as defined by Virginia case law. Furthermore, a BAC may be greater than or equal to .08%, but not be under the influence of alcohol as shown by the evidence submitted before the court, and still be found guilty of a DUI.

3. The possible defenses to the charge

There are numerous defenses to a DUI in Virginia. Some of the most common defenses relate to the fact that there are other explanations or behavior consistent with being intoxicated.

1. With respect to driving behavior, there are of course numerous reasons why a driver may have been weaving in his lane were driving erratically such as momentary losses of concentration.
2. With respect to field sobriety tests, it is important to show the fact that the officer did not follow proper procedures, which is oftentimes the case.
3. With respect to physical signs that the driver appeared intoxicated there may be alternative explanations such as:

⦁ Physical disability
⦁ Fatigue
⦁ Allergies
⦁ Illness

4. The penalties for a violation of Virginia Code Section 18.2-266 (ii)

Penalties for a violation of Virginia's DUI laws will depend largely on whether the conviction is a first offense, second offense or third offense, and how recent any prior convictions were.

First and second convictions for DUI are misdemeanors, but a third DUI committed within 10 years is a felony in Virginia

Virginia DUI penalties for a first DUI will include:
⦁ A 12 month loss of license
⦁ The possibility of mandatory jail time
⦁ At least a $250 fine
⦁ Completion of the VASAP course
⦁ A six month ignition interlock requirement
⦁ Insurance increases

Aggravating factors

The punishments listed above may increase if there are other aggravating factors involved such as:
⦁ An elevated BAC, starting at .15%
⦁ Operation of a motor vehicle under the influence with a child in the car

Plea bargaining in DUI cases

The reality is, that in many DUI cases in Virginia, the case will not go to trial. This is often because the case will be resolved through a plea bargain.

A plea bargain will result in the possibility of a favorable sentence, but will allow the Commonwealth to obtain a conviction for DUI, or other charge, such as reckless driving.

DUI Expungements

DUI's in Virginia are not eligible for expungement

Call for help today

If you have been charged with a violation of Virginia's DUI law nor interested in hiring an attorney to represent you please contact me. I will provide a free consultation over the phone or in person at my office.