Virginia legislators are considering a law that could change the legal landscape for Virginia DUI cases. Some lawmakers want to reduce the number of DUI cases that are plead to lesser offenses or dismissed by judges. Specifically, they want to change the time frame that a motorist’s blood alcohol content can be measured and still be admissible in court.
Legislation proposed by Delegate David B. Albo states that a driver would be guilty of drunk driving if a blood or breath test reaches a .08 threshold “at any time after driving.” Currently such a test must be performed within three hours of driving if the results are to be admitted as evidence in court.
Proponents of the bill say that a blood alcohol test that registers above .08, at any time, creates factual evidence that drunk driving occurred. By considering an open time frame for a BAC test though, lawmakers are acknowledging an argument that Virginia DUI defense attorneys have made for some time. Each person processes alcohol at different rates depending on a number of factors, and a motorist’s BAC could go from being under the legal threshold of .08 when they were actually driving to criminal DUI levels by the time a test is administered.
Michael C. Tillotson, a Newport News attorney who specializes in Virginia driving-under-the-influence cases and is a member of DUILaws.com directory of attorneys, says, “States all around the country have been closing off the defense.” DUI defense attorneys feel the legislative trend is toward DUI defendants proving their innocence as opposed to prosecution showing guilt. They say that organizations like MADD are seeking to limit the ability of a judge to hand down a decision based on the facts of a specific case.
If the proposed Virginia legislation is passed, it will pose limits on future defense strategies. But by agreeing that BAC can change with time, in the short term it presents an opportunity for the thousands of Virginia DUI cases currently pending. To mitigate that impact, Albo is considering making the bill an emergency measure so it would go into law more quickly.
