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Virginia Beach DUI Attorney – Chesapeake DUI Lawyer : § 18.2-269. Presumptions from alcohol or drug content of blood.

A. In any prosecution for a violation of § 18.2-36.1 or clause (ii), (iii) or (iv) of § 18.2-266, or any similar ordinance, the amount of alcohol or drugs in the blood of the accused at the time of the alleged offense as indicated by a chemical analysis of a sample of the accused’s blood or breath to determine the alcohol or drug content of his blood in accordance with the provisions of §§ 18.2-268.1 through 18.2-268.12 shall give rise to the following rebuttable presumptions:

  1. If there was at that time 0.05 percent or less by weight by volume of alcohol in the accused’s blood or 0.05 grams or less per 210 liters of the accused’s breath, it shall be presumed that the accused was not under the influence of alcohol intoxicants at the time of the alleged offense;
  2. If there was at that time in excess of 0.05 percent but less than 0.08 percent by weight by volume of alcohol in the accused’s blood or 0.05 grams but less than 0.08 grams per 210 liters of the accused’s breath, such facts shall not give rise to any presumption that the accused was or was not under the influence of alcohol intoxicants at the time of the alleged offense, but such facts may be considered with other competent evidence in determining the guilt or innocence of the accused;
  3. If there was at that time 0.08 percent or more by weight by volume of alcohol in the accused’s blood or 0.08 grams or more per 210 liters of the accused’s breath, it shall be presumed that the accused was under the influence of alcohol intoxicants at the time of the alleged offense; or
  4. If there was at that time an amount of the following substances at a level that is equal to or greater than: (a) 0.02 milligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c) 0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood, it shall be presumed that the accused was under the influence of drugs at the time of the alleged offense to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely.

B. The provisions of this section shall not apply to and shall not affect any prosecution for a violation of § 46.2-341.24.

CERTIFICATE INADMISSIBLE WHERE ARREST NOT TIMELY MADE. –Where there is no evidence that defendant was arrested within two hours of the alleged offense, the certificate showing the alcohol content of defendant’s blood is inadmissible. Overbee v. Commonwealth, 227 Va. 238, 315 S.E.2d 242 (1984).

Because defendant was not validly arrested within three hours of the offenses, as required by subsection A of § 18.2-268.2, and an officer’s act of telling defendant that he was under arrest and advising him of the implied consent law was insufficient to satisfy the restraint requirement to assert his lawful authority to arrest defendant, defendant did not impliedly consent to have his blood drawn; thus, the certificate of analysis containing defendant’s blood test results was inadmissible. Bristol v. Commonwealth, 272 Va. 568, 636 S.E.2d 460, 2006 Va. LEXIS 115 (2006).

NO PRESUMPTION OF INTOXICATION WHERE CERTIFICATE INADMISSIBLE. –Where the certificate of analysis of the breath test is inadmissible, the Commonwealth is not entitled to a rebuttable presumption that defendant was intoxicated at the time of the alleged offense (where his blood-alcohol content was greater than 0.10%). Such defendant’s guilt or innocence must therefore be determined from the other evidence of his condition at the time of the alleged offense. Overbee v. Commonwealth, 227 Va. 238, 315 S.E.2d 242 (1984).

Where defendant’s breath certificate of analysis showed unexplained results of “.10 percent” grams per 210 liters, without evidence explaining the error, the trial judge could not assume that “%” was simply inserted by error and that the correct measurement for alcohol content was .10 grams per 210 liters of the accused’s breath, the statutory presumption of intoxication under this section. Van Lear v. Commonwealth, No. 1924-94-3 (Ct. of Appeals Feb. 20, 1996).