• Chad Dorsk

CAN I BE CHARGED WITH A DUI IN VIRGINIA IF I BLOW UNDER A .08?

Updated: Jul 20, 2018

The answer is: Yes.

Drivers in Virginia are subject to complicated DUI laws. If you blow below a 0.08 on the breath test, you can still be charged with DUI.

Are you wondering why?

It’s the way the law was designed:

Virginia Code Section 18.2-269, clause 2 states:  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.

That means that if were sick that day, or have a medical condition, which could explain your “drunk” behavior, then you could be in the clear.

As you probably know, the most common DUI is 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. 

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.

To summarize:

· .08 or above: presumption of intoxication

· .07 & .06: no presumption

· .05: presumption that not intoxicated

These are all reasons why if you’re charged with a DUI in Virginia, you definitely need to contact Dorsk Law Office so we can begin analyzing your case and fighting for your rights.


If you have been arrested for drug possession or distribution, you have rights and deserve an effective legal defense

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Norfolk, VA 23510

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