Presumption of no alcohol intoxication- Fairfax DUI lawyer addresses milking this for all it is worth

Presumption of no alcohol intoxication is critical to argue when your Virginia post-arrest blood alcohol concentration (BAC) reads at 0.05 or less. As a Fairfax DUI lawyer, I read with interest a recent unpublished Virginia Court of Appeals opinion that affirms a DWI conviction with a BAC of 0.05, with retrograde extrapolation testimony by a prosecutorial expert. The less potentially adverse information you help provide the prosecution the better, which is why it is so important to assert your Fifth Amendment Constitutional right to remain silent with police, your Fourth Amendment Constitutional right to decline to consent to searches, and to decline to engage in field sobriety testing (SFSTs / FSTs) and preliminary pre-arrest breath testing (PBT).

If my BAC was 0.05 or lower, how can I get still get convicted for DWI despite this presumption of being not guilty? Fairfax DUI lawyer answers

The Virginia Code provides that: ” If there was at that time 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.” Virginia Code § 18.2-269. Jeffrey Earl Fitzgerald blew a 0.05 BAC after his Virginia DWI arrest, and the Commonwealth’s Court of Appeals still affirmed his conviction despite the foregoing presumption. Fitzgerald v. Com. Record No. 0331-23-3 (February 13, 2024) (unpublished). Here, Fitzgerald made the mistake of admitting he had been drinking and of submitting to field testing. On top of that, the trial court allowed a prosecution expert witness to testify about his BAC being higher at the time of driving than at the time of his subsequent BAC testing.

How do I overcome a 0.08 or higher BAC to obtain an acquittal?

At least with a BAC result of 0.14 or lower, room is left for argument that your BAC was lower at the time of driving, and that you are still not guilty, despite the rebuttable presumption that a BAC test of 0.08 or higher means guilt. With beer, wine and alcohol, first the alcohol absorbs into the bloodstream, then the alcohol level in the bloodstream plateaus, and then it dissipates. The Virginia Court of Appeals provides for looking at the blood alcohol level at the time of driving for BAC results at and below 0.14, but stymies that approach for BAC results of 0.15 and higher.  Yap v. Com., 49 Va. App. 622 ( 2007); Wimbish v. Commonwealth of Virginia court case (51 Va. App. 474 (2008)).

What does my Virginia DWI lawyer need to do to win my DUI prosecution?

Virginia DWI defense against prosecutions under Virginia Code § 18.2-266 calls for substantial command of the relevant statutory law — well beyond simply knowing about the foregoing presumption statutory law — caselaw from the courts, the relevant science, and persuading in court. As a Fairfax DUI lawyer, I focus heavily on all, having successfully defended hundreds of such defendants including at hundreds of such trials. I have used expert witnesses in defending over one hundred DWI defendants. I am among the small percentage of Virginia DWI defenders who is a member of the essential National College of DUI Defense (NCDD) or its equivalent, and have been  trained by one of the nation’s top FST trainers to police.

Upon being hired, highly-rated Fairfax DUI lawyer Jonathan Katz will spring right into action in pursuing your best possible defense. Call 703-383-1100 for your free in-person confidential consultation with Jon Katz about your court-pending case.