The nation’s DWI laws are unjust for making blood alcohol content of 0.08 a crime in and of itself, rather than looking at the totality of circumstances. The DWI laws are even more unjust for setting that threshold so low, at 0.08 rather than higher. However, that state of affairs is unlikely to improve for many years at the very least.

A DWI conviction is bad enough. If one drives DWI and in the process injures another person, the situation is all the more serious. In Virginia, it is a Class 6 felony (jailable up to five years) to drive DWI in a manner causing permanent and significant impairment of another. Essential elements of this offense include driving “in a manner so gross, wanton and culpable as to show a reckless disregard for human life.” Va. Code § 18.2-51.4.

At a bench trial, the Virginia Beach Circuit Court convicted Riana Michelle Rich under that DWI injury statute, Va. Code § 18.2-51.4. Virginia v. Rich, ___ Va. ___ (Dec. 15, 2016). The allegations are ugly and not much to have provided Rich help in her defense. An independent witness driver, Daja Young, testified that she was driving in the opposite direction from Rich and first saw a man in a wheelchair, John Costello, who was proceeding erratically across the street.

Within thirty seconds after the witness passed the man in the wheelchair, Young heard a crash, and returned to Costello by Rich’s car and his wheelchair by the side of the road.

Rich admitted that she took her eyes off the road to let her boyfriend light her cigarette. Once and for all, secure your cellphone in your trunk so you don’t look at it while driving, and keep your eyes on the road at all times. It takes only a fraction of a second for a child or anyone else to appear in front of your car. You have no choice but to have your full wits about you at all times when driving.

Rich admitted to being tired, only having slept two hours the night before. Getting behind the wheel with such a high level of sleep deprivation wins nobody’s sympathy.

Rich blew a 0.13 into the Intox EC/IR II machine, which exceeded the legal limit by 0.05. Va. Code § 18.2-266. Of course, in Virginia, the relevant blood alcohol (“BAC”) is the BAC at the time of driving/attempting to drive, not the time of testing, unless the alleged BAC is 0.15 or higher.

The combination of the alleged blood alcohol level, exhaustion, and giving more importance to lighting a cigarette than paying attention to driving, did not make Rich a sympathetic defendant. Her collision with Costello in the wheelchair made matters worse.

Rich appealed, arguing that the evidence was insufficient to convict her of this felony. In relevant part, the Virginia Supreme Court stated:

“We have not previously addressed the causation element of Code § 18.2-51.4. Therefore, we do so today in accord with our prior cases interpreting the causation element contained in Code § 18.2-36.1 (involuntary manslaughter) since the two statutes contain the same causation language.”

The Supreme Court affirmed Rich’s conviction, finding that the evidence was sufficient to find that Rich proximately caused the injury to [John] Costello, who was in the wheelchair, and that his own intoxication level of 0.22 did not break the chain of proximate cause:

“Young testified that she observed the victim emerge from the Convention Center side of the street, attempting to cross to the other side where the trailer park was located. Although it was dark, she was able to see the victim and avoid hitting him. The victim, who was traveling ‘two to three miles an hour’ proceeded across Young’s lane in front of her. Young observed a vehicle approaching her and within a couple of seconds to thirty seconds, Young heard a crash and observed “everything scatter” in her rearview mirror. The accident scene reconstruction report indicated that the victim was facing southbound at the time of the collision (in the direction of the trailer park) and that the front driver’s side of Rich’s vehicle impacted the right side of the victim’s wheelchair. The wheelchair was perpendicular to Rich’s vehicle. The crash occurred in the right hand lane of eastbound traffic. Viewed in the light most favorable to the Commonwealth, there are sufficient proven facts from which the trial court could reasonably infer that Costello was headed from the Convention Center to the trailer park, that he drove his wheelchair in a southerly direction, had traversed three lanes of traffic, and was heading into the fourth lane when he was struck by Rich. As the Court of Appeals noted, Rich’s actions, i.e., her admitted inattentiveness while driving, voluntary consumption of alcohol up to and well beyond the point of intoxication, and voluntary decision to drive while having had so little sleep, formed a natural and continuous sequence that caused the accident.”

Sad to read in Rich is that the Virginia Department of Forensic Science breath testing unit chief Melissa Kennedy testified for the prosecution on such dubious claims as:

– At “a BAC of .05, a person starts to have problems with ‘divided attention.’” It is oversimplified to correlate such a low blood alcohol content to cognition, rather than considering the totality of the circumstances.

– “Consequently, reaction time begins to slow, and safe driving is impaired.” That is another oversimplification.

– “At a BAC of .10, a person’s ‘glare recovery’ can be affected, meaning that nighttime driving is more difficult.” That is another oversimplification, but be ready for prosecutors to present such bunk at future DWI trials.

– An “individual’s BAC decreases at the rate of elimination of .01 to .02 grams per hour.” That is incorrect. For starters, blood alcohol level can be rising, falling, or staying the same between the time of driving and testing, in part considering that blood alcohol levels rise as the alcohol absorbs into the bloodstream.

Rich herself hired a defense forensic toxicologist, who testified that Costello — whose wheelchair Rich struck — was “’severely intoxicated’ and explained how he would have been ‘severely impaired by alcohol at a [BAC level of ] .22.'”

Getting behind the wheel within twenty-four hours of consuming alcohol can be risky business.