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Virginia DUI - A quick look at 18.2-266 and the DUI charge

Section 18.2-266 is termed the "adult Virginia DWI" section and it is the section charged for DWIs in Virginia state courts. For persons under the age of 21 charged with DWI, officers charge under a section of the Code termed "baby DWI."

The government has the burden of proving its case against a defendant "beyond a reasonable doubt" in DUI | DWI cases because these cases are criminal cases. This is the same standard applicable to all criminal prosecutions. In the drunk driving context, the government proves its case against a defendant by introducing the driver's (1) Driving Behavior (2) Appearance and Coordination, and/or (3) Scientific evidence of intoxication.

In introducing evidence of driving behavior, the prosecutor will generally call the police officer to testify about her observations of the driver prior to stopping the vehicle. Often, police officers will refer to weaving, erratic turning, and excessive speed. These observations are then argued by the prosecutor as evidence of driving under the influence of alcohol.

Driving behavior alone; however, is not enough to prove a Virginia DUI case; however, it is often enough proof of reckless driving. This is important because attorneys will often try to reduce Virginia DUI cases to Reckless Driving as Reckless Driving does not carry the collateral penalties and stigma associated with Drunk Driving. The police officer will often expand her testimony to include observations of the defendant upon the stop. Blood shot eyes, a strong odor of alcohol, and slurred speech are indicative of intoxication and the prosecution will elicit this evidence from the police officer.

In addition to appearance, the police officer will also testify on the defendant's coordination or lack thereof. This evidence will often rely on field sobriety tests conducted by the officer at the scene of the arrest.

Field Sobriety Tests include the following:

  1. Touching the tip of the nose with the forefinger

  2. Walking a straight line, heal-to-toe in one direction, turning around, and walking back in the opposite direction

  3. Standing on one foot

  4. Reciting the alphabet

  5. Counting, usually backwards, from one number to another

Standard Field Sobriety Tests include only the Walk and Turn, Horizontal Gaze Nystagmus, and One-Leg Stand. Your attorney will argue that only evidence from Standard Field Sobriety Testing be allowed into evidence.

More often than not, the prosecutor will place an emphasis on the BAC certificate (scientific evidence) to secure a conviction for Virginia DUI. This is because the prosecutor must simply introduce the BAC certificate indicating a BAC of .08 or higher for a presumption of driving under the influence. For this reason, as outlined below, it is important to advance any technical arguments against the BAC certificate (scientific evidence). Technical arguments are not available in all cases, but they are in some.

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