Can You be Charged with DUI in Virginia if You Blow Below a 0.08 on the Breath Test?

DUI less than .08

Can you be charged with DUI in Virginia if you blow below a 0.08 on the breath test? The short answer is yes.

Virginia DUI Laws

Virginia DUI laws are quite complicated, and it doesn’t make sense a lot of times to drivers. However, Virginia DUI law says that if you blow below a 0.08 on the breath test, you can still be charged with DUI. Why is that?

You have to keep in mind that there are several different types of DUI in Virginia. The first main version of DUI is for cases where you blow a 0.08 or higher on the breath test or blood sample.

If your blood alcohol is at 0.08 or higher, Virginia law says that is a DUI. We could argue against it and argue that you weren’t actually that high at the time of the driving. However, that’s the main type of DUI that people face in Virginia.

Virginia law always says that if you are operating a vehicle under the influence of any substance that is impairing your ability to drive safely, that is a DUI as well.

This is why you can still be arrested for DUI and the case can go forward even if your blood alcohol level is below 0.08.

Can You Get A DUI If Your BAC is Below .08?

So, can you get a dui under .08? Note that below a 0.08, the law does not say that automatically you are not drunk.

It simply can be a more challenging case for the Commonwealth to prove because they do not get what we call a presumption that you were in fact under the influence.

One saving grace, though, for lower-level DUI cases is that if you blow a 0.05 or below or your blood sample comes back as 0.05 or below, then the defense is entitled to a presumption that you were not impaired.

This is assuming that there’s nothing else in your system such as some kind of drugs or other substances.

If it’s a pure alcohol case and your blood sample is 0.05 or lower, then we have a presumption in our favor and the prosecution has to argue otherwise to prove that even though you were that low, you were still impaired in your case.

This is why you can’t just assume that if you’re below a 0.08 you’re safe to drive.

You always need to make sure that you truly are safe to drive and have your faculties about you to be able to operate a vehicle safely on the roadway in Virginia.

This is also an important reason why it can make sense in a lot of cases to refuse roadside testing.

Roadside Testing

Roadside testing is designed to essentially determine whether the officer should arrest you or not.

Your performance on roadside tests can and will be used against you in borderline cases to argue that you were in face impaired. It’s not just something that stays on the side of the road.

The roadside testing will come into court if you challenge your DUI case. It can be a source for the Commonwealth to point to to say, “Look how drunk this person was even though they blew below a 0.08.”

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Contact Our Virginia DUI Attorneys Today

Our attorneys are here to help you! If you have been charged with DUI after a breath test, contact our Virginia DUI Defense attorneys today at Flusche & Fitzgerald.

We have extensive experience helping clients with their DUI cases. Call us today so we can discuss your options.

Andrew Flusche

My name is Andrew Flusche. I am a traffic and misdemeanor defense lawyer in Virginia. I limit my practice to traffic tickets and misdemeanor defense, so I know the ins and outs of these offenses. I literally wrote the book on reckless driving in Virginia which you can get on Amazon here or download for free here. I opened my practice in 2008 after earning my Juris Doctor degree from the University of Virginia School of Law. Since then, I have earned over 600 5-star reviews from happy clients on Google, Yelp, and Facebook. If you’ve been charged with a misdemeanor offense in Virginia, please don’t hesitate to contact me. Your initial consultation is always free, and you'll talk directly with me about the details of your case.

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