Can I be convicted of a DUI or DWI if I was not drunk?

Post on: Dec 13, 2017By Steve Birocco

Unfortunately, yes because the law no longer requires intoxication. Any driver impairment from alcohol or drugs is enough for a DUI conviction. When breathalyzer or blood test results reach certain levels, the prosecutor may not need any additional evidence that the driver was impaired. The following section explains the elements of DUI and the potential enhancements.

Elements of DUI

There are three elements to the standard DUI offense. The prosecutor must prove that the defendant:

  • drove or operated
  • a motor vehicle, engine, or train
  • while under the influence or impaired by alcohol or drugs

Each element requires proof beyond a reasonable doubt or the court must dismiss the charge. Overwhelming evidence on one element does not make up for insufficient evidence on another element.

Driving or Operating

“Driving” has the same meaning it does in conversation. Any distance or time is sufficient. Thus, moving a car in a driveway (yes…DUI for moving your car on your own property) would satisfy the requirements for driving.

Operating a vehicle means having actual physical control over it. Since 2011, presence in the driver’s seat with the key in the ignition is enough for a DUI. It does not matter whether the engine and accessories are running or not. Operation can also occur from other seats or from outside the vehicle if the defendant has actual physical control over it. Thus, it is best not to get too close to one’s vehicle while drinking kombucha on one’s own property.

Although driving and operating on private property violate the DUI statute, the implied consent laws requiring the driver to submit to a blood or breath test may not apply. This, at least, would make DUI more difficult to prove.

Motor Vehicle, Engine, or Train

Few DUI offenses involve engines or trains. Most offenses involve motor vehicles, which are designed for self-propulsion including cars, trucks, motorcycles, all-terrain vehicles (three-wheelers or ATVs), farm tractors, motor homes, school buses, and tow trucks among others listed in the Virginia Code. Mopeds are not motor vehicles for most purposes in Virginia, but the DUI statute specifically includes them when operated on the highways (public roads and some private property).

While Under the Influence or Impaired at the time of the Offense

Despite what the name of the offense suggest, this element does not require intoxication for conviction. “Under the influence” and “impairment” mean that a driver’s ability to operate a motor vehicle are affected by alcohol or drugs. Examples include diminished awareness of road conditions and surroundings, ability to make good decisions, or control the vehicle. The DUI statute lists five types of impairment:

(i) Blood alcohol concentration of at least .08

(ii) Under the influence of alcohol

(iii) Under the influence of drugs

(iv) Under the combined influence of alcohol and drugs

(v) Minimum blood concentration of the following drugs:

  • .02 milligrams of cocaine per liter of blood
  • .1 milligrams of methamphetamine per liter of blood
  • .01 milligrams of phencyclidine per liter of blood (PCP)
  • .1 milligrams of 3, 4 methylenedioxymethamphetamine per liter of blood (MDMA, Ecstasy, Molly)

The prosecutor must prove beyond a reasonable doubt that the driver was impaired in at least one of the five ways at the time of the offense. It need not be the same condition for which the police arrested the defendant, or the same condition the arrest warrant or indictment alleges.

Conditions (i) and (v)—Blood or Breath Test Results. Neither of these conditions require any evidence of impairment. The breathalyzer and blood test results prove the element unless the defense discredits the test. The “defenses” page discusses some ways to attack blood and breath tests.

Conditions (ii)-(iv)—Under the Influence. These conditions require evidence that alcohol, drugs (including prescription medications), or a combination of both impaired the driver. The amount consumed does not matter. The prosecutor’s evidence in these cases usually comes from some combination of:

  • The breath or blood test results
  • A driver’s statements about consumption or impairment
  • The testimony of witnesses about the driver’s statements, consumption, conduct, or driving behavior.

There are often problems with the evidence in these cases which lead to good results for the driver. See the defenses page. Important points:

  • Prescription medication can cause impairment even when taken according to instructions.
  • Blood test results for drugs are not admissible at trial unless the prosecutor proves a connection between the defendant’s driving and the type of impairment that the drugs would typically cause.


Elements of Enhancements to DUI

The enhanced penalties for offenses involving elevated BAC, transportation of a minor, or prior DUI-related convictions require the prosecutor to prove an additional element during the trial. If the prosecutor fails to prove the enhancement, conviction for standard DUI is still possible if the prosecutor proves the three elements. Also, the DUI arrest warrant or indictment must allege the enhancement, or it does not apply. Prosecutors can amend the charge at least until the trial starts if it does not allege an enhancement. The courts allow amendments during the trial under some circumstances as well.

Elevated Blood Alcohol Concentration

There are two elevation ranges—.15 to .20 and greater than .20. The prosecutor must prove BAC with the breathalyzer or blood test result. The presumption that the breathalyzer or blood test result reflects the driver’s BAC at the time of the offense applies to the enhancement. The analysis must be on whole blood rather than serum or plasma.

The police must send the blood samples to the department of forensic science for analysis. In the meantime, the officer usually charges the driver with DUI if there is enough other evidence of impairment to support the charge. If the blood tests at .15 or higher, the prosecutor usually amends the warrant to reflect the enhancement for elevated BAC.

Transporting a Minor

This enhancement requires evidence that the driver had one or more passengers under 18 years of age. Aside from the mandatory jail time and fine, prosecutors often add felony charges for child endangerment after reviewing the case.

Subsequent DUI Offenses

Convictions for prior DUI or related offenses in six ways:

  • Second offense within five to ten years of committing a prior offense
  • Second offense within less than five years of committing a prior offense
  • Third offense committed within ten years
  • Third offense committed within five years
  • Fourth offense committed within ten years
  • DUI after felony DUI-related conviction

The prosecutor must prove the driver has prior qualifying offenses. Conviction orders from the trial court or DMV transcripts are usually sufficient to prove the enhancement if they show that the defendant was the person previously convicted, the prior offense occurred within the correct date range, and what the conviction was for. However, errors and omissions in the records often give the defense a chance to keep them from the evidence at trial.

For second, third, or fourth offense DUI charges, the prior offense dates must be within less than five-years or from five to ten-years prior to the current offense date. The convictions can include the following:

  • Virginia offenses for:
    • Motor vehicle DUI
    • Involuntary manslaughter resulting from DUI
    • Maiming resulting from DUI
    • Commercial vehicle DUI
  • Out of state offenses for:
    • DUI under federal law
    • DUI from other states. The other state’s DUI statute must be “substantially similar” to Virginia law, which means that any act that would be a DUI in the other state would be a DUI in Virginia.

For DUI after conviction for prior felony DUI, any prior offense qualifies. The list of qualifying prior offenses is different than those for second, third or fourth offense DUIs and includes:

  • Involuntary manslaughter resulting from DUI
  • Involuntary manslaughter resulting from DUI under Virginia’s motorboat DUI statute
  • Maiming resulting from DUI
  • Maiming resulting from DUI under Virginia’s motorboat DUI statute
  • Felony DUI