2.7 Statutory Presumption of Intoxication

• Library: Defense of Serious Traffic Cases in Virginia (Virginia CLE) (2020 Ed.)

2.7 STATUTORY PRESUMPTION OF INTOXICATION

2.701 Definition. When the Commonwealth has complied with the blood- or breath-testing procedures contained in sections 18.2-268.1 through 18.2-268.12 of the Virginia Code, or when the testing was performed by the Department of Forensic Science in accordance with the provisions of sections 18.2-268.5, 18.2-268.6, and 18.2-268.7 on the suspect's whole blood drawn

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pursuant to a search warrant, a rebuttable presumption arises regarding the driver's level of intoxication. ²¹⁶ The presumption may be used in prosecutions for violations of clauses (ii), (iii), or (iv), of section 18.2-266 (driving under the influence of alcohol, drugs, or a combination of both) or section 18.2-36.1 (DUI-related involuntary manslaughter). ²¹⁷ When the blood alcohol content (BAC) is below .05 percent, the presumption is that the accused was not under the influence of alcohol. ²¹⁸ When the BAC is .05 or greater but less than .08, there is no presumption that the accused was or was not under the influence of alcohol. ²¹⁹ A BAC of .08 or above creates a rebuttable presumption that the accused was driving under the influence of alcohol. ²²⁰ A rebuttable presumption of intoxication also arises when the defendant's blood has a level of the following...