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Per se and implied consent laws in Virginia

| Dec 17, 2020 | Criminal defense |

Getting pulled over for driving while under the influence (DUI) is a painful experience, and many will try to fight it by refusing to take a breath or blood test or contesting the results of those tests. Virginia DUI laws carry stiff penalties, even for first offenders.

While you can fight a DUI conviction in Virginia with the help of experienced criminal defense attorneys, knowing what to fight for and when will keep you from being charged with multiple offenses.

Per se and implied consent

“Per se” is Latin for “by itself”. Per se laws in DUI cases have blood alcohol concentration (BAC) limits that are determined by a blood or breath test to establish the driver’s level of intoxication. No other evidence is necessary to pursue a DUI conviction.

In addition to penalties for exceeding BAC limits, in Virginia there are penalties that address drugged driving as well as zero tolerance for underage drivers. Virginia sets limits on traces of illegal substances that can be detected in a blood test for cocaine, methamphetamine or phencyclidine.

The BAC limits and first-time penalties for conviction are:

  • Per se BAC limit: 0.08%, with minimum license suspension or revocation of one year for first offense, $250 fine, possible installation of an ignition interlock device, mandatory treatment in the Virginia Alcohol Safety Action Program
  • Aggravated BAC limit: 0.15%, above penalties as well as five-day minimum jail term
  • Zero tolerance BAC limit for underage drivers: 0.02%, six- to twelve-month license suspension, $500 to $2,500 fine and up to 12 months in jail

Implied consent laws exist in all fifty states. Under implied consent laws, driving on a public road is considered a privilege and not a right. The driver implicitly gives consent to take a breath test if a patrol car pulls him over under these laws, and refusal to consent to the test carries penalties that are equally stiff and can compound the penalties for the DUI.

Defenses to DUI charges

Depending on your unique case, your attorney may be able to prove that the arresting officer unlawfully stopped the driver, improperly administered field sobriety or breath tests, that the test resulted in a false-positive BAC level from the use of an inhaler or mouthwash, or that there was a non-alcoholic reason for impairment, slurred speech or bloodshot eyes. Knowing your rights is the first step toward fighting DUI charges.