Can I Still Be Arrested Even if I Blow Below the Legal Limit?
Feb. 8, 2021
DUI laws in the Commonwealth of Virginia are complex and confusing. They may not make a lot of sense, but a person can be arrested for driving under the influence (DUI) even if he or she blows below 0.08% blood alcohol content (BAC) on the breathalyzer test. When this is the case, you need to understand how Virginia law works, and you need to hire an attorney who can defend your case.
If you or someone you care for has been arrested for DUI in Virginia, experienced Virginia DUI attorney Bryan J. Jones is here to defend your case and protect your constitutional rights.
Blowing Under the Limit and Still Arrested
A driver can blow under the legal limit of 0.08% and still be arrested for intoxicated driving in the Commonwealth of Virginia. There are several types of DUI in Virginia, and in some of these, you can be arrested while under the legal limit.
Below the Limit DUI
Under Virginia law, if you are driving with a BAC above 0.08%, the judge can infer that you are guilty of DUI. But if you blow below 0.08%, the judge can still find that you are under the influence. It is just more difficult for the judge to do that. Simply put, even if you are below 0.08%, you are still not allowed to drive while intoxicated. You are not automatically considered "sober" if you are below 0.08%.
Officers will still consider signs of intoxication such as
inability to perform field sobriety tests well,
smell of alcohol, and
If the officer finds that you are intoxicated and it influenced your driving, you can be arrested and charged with DUI even when under 0.08%.
One thing that can help, however, is if you blow below 0.05%. If that is the case, you are entitled to a presumption that you are not intoxicated, and that presumption must be overcome by law enforcement and the prosecutor.
A breathalyzer test is not able to detect the presence of drugs in your system. This means that if a driver is intoxicated and driving because of drugs, he or she will blow below 0.08%, but may still be intoxicated. Drugs can have varying effects on a person, and his or her ability to drive, especially depending on the drug consumed.
When an officer believes a person to be intoxicated by drugs, he or she will likely implement the use of field sobriety tests to determine if the driver is intoxicated. In addition to the signs listed above, an officer may also look for:
the smell of drugs (especially marijuana),
any visible drugs or drug paraphernalia in the car,
statements which indicate the use of drugs or intoxication, or
prior history of drug use if it shows up on the officer's search of your driver's license.
Combination of Alcohol and Drugs
Another way to be charged with DUI even when you blow below the legal limit is when you have both alcohol and drugs in your system. For example, you might have only had a couple of beers. If that's the case, you'll probably blow under 0.08. But if you have drugs or prescription medication in your system, combined with alcohol, you can still be charged and convicted of DUI if the police and prosecutor can prove that the combination of drugs/medication and alcohol caused you to be under the influence.
Consult an Experienced DUI Attorney
A DUI charge can carry serious consequences, even when you blow below the legal limit. If charged with DUI, you have options to fight your charges. To protect your constitutional rights, you need Virginia DUI attorney Bryan J. Jones to defend your case. Contact us today to schedule an initial consultation to discuss your case.