Several legal issues may be pertinent to your DUI or DWI case. For example, did you know that you can be charged with a DUI or DWI if you are just sitting in the driver’s seat of a running vehicle? If the ignition key is turned on and you are in the driver’s seat, you can be considered operating the motor vehicle for the purposed of a DWI conviction. Gallagher v. Commonwealth, 205Va.666 (1964). While there is no requirement a person be operating a motor vehicle on a public highway Gray v. Commonwealth, 23Va.App. 351 (1996), the implied consent law also known as Virginia Code § 18.2-268.2 only applies if a person is driving on a public highway.
Therefore, if someone is charged with a DWI on private property and they were told they had to take a breath test, the breath test may be suppressed. Roseborough v. Commonwealth, 53Va.App. 451 (2009)
Thirdly, is the issue of permissive inference versus mandatory presumption. If the blood alcohol level is introduced into evidence, it is merely a permissive inference as opposed to a rebuttable presumption. To make it a rebuttable presumption would make it a violation of one’s constitutional right to due process because it would impermissibly shift the burden of proof to the defendant.
Since it is a permissive inference, a court can find someone not guilty even if the blood alcohol level exceeds .08 if the other indicia of intoxication creates a reasonable doubt that the person was not intoxicated. Yap v. Commonwealth, 49Va.App. 622 (2007). An argument can be made that since the BAC is only a permissive inference, the Commonwealth may need to produce an expert to testify exactly what a BAC of more than .08 is exactly and it should not merely be accepted as proof of intoxication.