Most people in Virginia are aware that if they are pulled over on suspicion of drunk driving, the police may administer a chemical test, such as a breath test, to determine the driver’s blood alcohol content. It is well known that if the driver’s BAC measures at 0.08 percent or above, the driver can be charged with driving under the influence. However, what many people may not know is that it is possible to be convicted of a drunk driving offense even if one’s blood alcohol content is below 0.08 percent.
Under Virginia law, there are two types of drunk driving offenses: DUI per se and DUI. A person can be charged with DUI per se if they were driving a motor vehicle and a chemical test revealed that their BAC measured 0.08 percent or higher. In this situation, in order to be convicted, all the prosecution needs to show is that the motorist’s BAC measured 0.08 percent or above.
In contrast, a motorist can be charged with DUI if police believe the motorist was under the influence of alcohol or drugs while driving. The charge can be levied even if the motorist’s BAC was under 0.08 percent. Instead, a motorist can be convicted if the prosecution demonstrates that the motorist’s ability to operate a vehicle was severely diminished due to alcohol or drug use, regardless of the motorist’s BAC.
As this shows, even drivers whose BAC has not exceeded the legal limit could still be charged with a drunk driving offense. This may come as a surprise to some, especially when they find themselves in just such a predicament. Of course, when it comes to DUI per se, much of the evidence relies on the subjective opinion of the arresting officer at the DUI stop. Therefore, it may be possible to challenge the officer’s conclusion that the motorist’s driving abilities were severely diminished, in order to see the charges against the motorist reduced or dismissed entirely.