DUI in Virginia When You are “Under the Legal Limit” (BAC .08%)

It is fairly common knowledge in Virginia that the state’s “legal limit” for blood alcohol level (BAC) is .08%, meaning that a person who operates a vehicle with a BAC of .08% can be charged with a DUI. The internet is full of BAC calculators that give you an approximation of what your BAC would be based on drinks consumed in a given time and your weight, and you can even purchase personal breathalyzers which can gauge your BAC before you get on the road.  


But it would be a mistake to think that, should you get pulled over and blow into a breathalyzer test that returns a BAC with less than .08%, you will face no further problems with the law. And it would be an even greater mistake to think that, following an arrest for a DUI in such a circumstance, that you will be able to avoid a criminal record simply by walking into court and telling the judge that you were “under the legal limit.”

BAC Is Only One Way to Prove DUI in Virginia

While a BAC of .08% or higher is indeed sufficient to bring a criminal DUI charge against a defendant in Virginia (although you can still work with a criminal defense attorney to determine what defenses may be available and/or work towards minimizing criminal penalties), BAC is only one of a number of ways for Virginia prosecutors to bring criminal DUI charges.


Under Virginia § 18.2-266, a driver can also be charged with a DUI:

  • while such person is under the influence of alcohol,
  • 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; or
  • 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


Note that these other provisions do not speak of mathematical percentages but rather being “under the influence” and “impair(ing) his ability to drive or operate any motor vehicle.”


What this means is that a Virginia judge can let a criminal DUI case proceed against a defendant whose blood alcohol level is below .08% if prosecutors can present evidence that shows that a driver was “under the influence of alcohol.” That, of course, is a murky standard, and prosecutors are required to prove guilt beyond a reasonable doubt in any criminal trial to win conviction, but the point is that a defendant charged with DUI should take matters seriously even where their BAC registers below a .08%.


Speak to an experienced Virginia criminal defense attorney about your DUI charges.

Experienced Virginia Criminal Defense Attorneys On Your Side

If you have been arrested for any type of crime in Virginia, the criminal defense attorneys at Select Law Partners in Fredericksburg, Virginia, are here to help manage your defense and protect your right, reputation, and your future. Contact us today to schedule a consultation regarding your situation.

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Bennett Brasfield

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