Presumption absence with Virginia blood alcohol concentration (BAC) testing does not assure an acquittal, says Fairfax DUI lawyer

Presumption absence (PA) with BAC testing — and these presumptions are rebuttable — can be an important achievement at a Virginia DWI trial proceeding pursuant to Virginia Code § 18.2-266, but does not guarantee an acquittal. As a Fairfax DUI lawyer, I know that the BAC presumptions of being under the influence of intoxicants, or not, are (and keep reading past the following at-first dry-seeming listing) : “1. If there was at [the time of the alleged offense] 0.05 percent or less by weight by volume of alcohol in the accused’s blood or 0.05 grams or less per 210 liters of the accused’s breath, it shall be presumed that the accused was not under the influence of alcohol intoxicants at the time of the alleged offense; 2. If there was at that time in excess of 0.05 … t but less than 0.08…, such facts shall not give rise to any presumption that the accused was or was not under the influence of alcohol intoxicants at the time of the alleged offense, but such facts may be considered with other competent evidence in determining the guilt or innocence of the accused; 3. If there was at that time 0.08…, it shall be presumed that the accused was under the influence of alcohol intoxicants at the time of the alleged offense; or 4. If there was at that time an amount of the following substances at a level that is equal to or greater than: (i) 0.02 milligrams of cocaine per liter of blood, (ii) 0.1 milligrams of methamphetamine per liter of blood, (iii) 0.01 milligrams of phencyclidine per liter of blood, or (iv) 0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood, it shall be presumed that the accused was under the influence of drugs at the time of the alleged offense to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely.” Virginia Code Section 18.2-269. 

What is the benefit to my Virginia DWI defense of presumption absence with BAC?

Clearly, a Virginia DUI defendant is in better shape with BAC presumption absence — which exists with a BAC test of 0.08 or higher — against them than the opposite. Fortunately Virginia Code Virginia Code § 18.2-269 makes the presumptions rebuttable and addresses BAC at the “time of the alleged offense.” The Virginia Court of Appeals has modified that “time of the alleged offense” meaning by saying that when the alleged BAC is up to 0.14, we look at the blood alcohol concentration at the time of driving (Yap v. Com., 49 Va. App. 622 ( 2007)), but when the BAC alleged in the charging document (the warrant or arrest, summons or indictment) is 0.15 or higher, we look at the BAC at the time of testing of breath or blood (Wimbish v. Commonwealth of Virginia court case (51 Va. App. 474 (2008)). Some judges may, without needing the testimony of a forensic toxicologist, take judicial notice that first alcohol absorbs into one’s bloodstream (therefore causing a rising BAC), then plateaus and then dissipates. I reference the data from the Virginia Department of Forensic Science (DFS) about my client’s specific BACs (at least two are required for a sufficient breath testing result in Virginia) to argue that my client’s BAC was probably lower at the time of driving than testing, if the first BAC result is lower than my client’s subsequent BAC result.

Do I need to hire a Virginia DUI defense attorney if I have BAC presumption absence?

For those who ask me whether they should obtain a qualified Virginia criminal defense attorney when charged with a jailable offense (whether or not a DUI (with or without presumption absence) or other alleged offense, I am reminded that once in awhile, people make the mistake of handling a decapitated still-moving snakehead or the fangs of a dead snake. Both can be fatal, as the venom is always present.  Overcover risk by having a qualified lawyer with you in court not only when charged with a jailable crime, but even when accused of a nonjailable Virginia misdemeanor. When it comes to Virginia DWI prosecutions with a BAC under 0.08, the under-0.08 does not eclipse the other evidence, as your trial factfinder (whether a jury or judge) will take into consideration the totality of the evidence in deciding whether reasonable doubt exists to acquit you of your driving under the influence charge. That was made starkly clear for Gabriel Kutchko Will, who got convicted at a Viriginia DUI bench trial after not merely presenting a .07 BAC breath test result, but also saying he felt like a 10 (on a scale of one to 10 for inebriation), had slurred speech, smelled of alcohol, said he was an Alcoholics Anonymous member, denied drinking but then admitted to having consumed a serving of beer, and, when asked for his vehicle registration, instead “removed a Bible from the truck’s center console and stated, ‘this is the word of God.'” Will v. Commonwealth of Virginia, Record No. 0786-26-3 (Va. App. 2026) (unpublished) (unpublished). Even though Will is unpublished and thus non-binding, it states the binding relevant caselaw as follows: “In the absence of forensic testing demonstrating blood alcohol content in excess of the proscribed limit, the degree of intoxication ‘is established when any person has consumed
enough alcoholic beverages to ‘so affect his manner, disposition, speech, muscular movement, general appearance or behavior, as to be apparent to observation.”‘… ‘In determining whether a defendant was under the influence, a factfinder considers ‘all of the evidence of his condition at the time of the alleged offense.”‘… ‘This Court has found that “[a] defendant’s admission that he consumed several alcoholic beverages, together with the testimony of the arresting officer regarding the defendant’s appearance and lack of coordination, is sufficient to support a conviction for driving under the influence of alcohol.”‘” Will (citations omitted). Fortunately, the foregoing authorities do not mandate a conviction under the foregoing circumstances, as only the factfinder can decide whether to convict or acquit. 

What if I am under 21 years old and my BAC is 0.02 or higher?

Virginia law allows for a Class 1 misdemeanor conviction (up to a year in jail, and additional penalties) for a person under twenty-one years old who drives with a BAC of 0.02 or higher and below 0.08. Va. Code  18.2-266.1 (colloquially called Baby DWI). The foregoing law yanks the Virginia Code presumption statute from the underage person, and also makes it easier than with adults at least twenty-one years old for the court to find probable cause for police / law enforcement officers (LEO) to arrest a person under 21 years old for suspicion of violating at least § 18.2-266.1. Consequently, if you were under 21 at the time of your Virginia DWI or Baby DWI arrest, you definitely want to obtain a qualified Virginia DUI defense lawyer. 

Is Virginia DWI law a rigged system?

Virginia DWI law is not a rigged system, but is riddled with unfairness, for starters. BAC thresholds (asking whether BAC threshold absence is present) should not be permitted to be crimes in themselves in Virginia DUI law, but should at worst for the defendant be permitted to be considered in the totality of the circumstances? Plenty of people do not feel alcohol effects at BACs under 0.15 for starters. Your BAC does not precisely tell you how the alcohol is affecting your cognition, coordination and driving ability. Blood testing, when done accurately, should be more accurate and reliable than breath testing, but Virginia DWI law and police practice heavily rely on the highly fallible breath testing regime. Mandatory minimum sentencing in Virginia for repeat convictions and for BAC’s of 0.15 and higher add to the draconian nature of Virginia DUI law. How to handle this unfair state of affairs? For your defense, back lawfully and effectively by teaming up with a Virginia DUI defense lawyer who is able to and does pursue your best possible results in court. On the macro level, change the laws for the better. It can be done, including in Virginia, where, for instance, less harsh driving restrictions are available now than seven years ago for people convicted of a first-time DWI offense, and where a first-time BAC refusal liability finding permits immediately applying for restricted driving privileges (albeit narrow privileges), whereas such findings previously meant no driving at all for a year (and later required waiting thirty days for applying for such restricted driving privileges). Never give up. Never give in.

Fairfax criminal defense lawyer Jonathan Katz relentlessly pursues your best defense against Virginia felony, misdemeanor and DWI prosecutions. A great first step in your Virginia criminal defense is to meet with Jon Katz for your free in-person confidential consultation about your court-pending prosecution. To secure your free consultation with Jon, please contact his staff at 703-381-1100, Info@KatzJustice.com and (text) 571-406=7268.