Presumptions from alcohol or drug content of blood for DUI cases

Section 18.2-269 of the Code of Virginia, as amended, indicates:
"A. In any prosecution for a violation of Section 18.2-36.1 or clause (ii),(iii), or (iv) of Section 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 Sections 18.2-268.1 through 18.2-268.12 shall give rise to the following rebuttable presumptions:
(1) If there was at the time .05 percent or less by weight by
volume of alcohol in the accused'd blood or .05 grams or
less per 210 liters of the accused'd 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 .05 percent but less
than .08 percent by weight by volume of alcohol in the
accused's blood or .05 grams but less than .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 .08 percent or more by weight by
volume of alcohol in the accused'd blood or .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 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) .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 Section 46.2-341.24."

Man pleads guilty in two DUI related deaths

A man pleaded guilty today in the Norfolk Circuit Court to two counts of involuntary manslaughter. The defendant was involved in a two car accident at the intersection of Military Highway and Johnstons Road in the City of Norfolk, Virginia. Additionally, the defendant had a blood alcohol level of .18 percent, which is more than two times the legal limit.
The victims were 20 and 21 years old. Additionally, the victims' vehicle was struck by the defendant after he ran a red light.

DUI and Divided Attention Tests

The lawyers at Montagna & Montagna, P.C. practice extensively in Norfolk, Virginia Beach, Portsmouth, and the other cities in Hampton Roads. Thus, we are very familiar with divided attention tests, which are frequently used by the police before placing a person under arrest for DUI.
People, who are sober, may generally be able to focus are multiple tasks simultaneously. However, people, who are impaired by alcohol or drugs, have a difficult time dividing their attention to accomplish multiple tasks at once. Thus, police will utilize divided attention tests to determine whether an individual exhibits clues of driving under the influence of alcohol or drugs.
The most effective divided attention tests require the same physical and mental capabilities that an individual uses while driving. For example, the tests judge information processing, short term memory and judgment and decision making, balance, vision, muscle control, coordination, and reactions to stimuli.
Two popular tests approved by the National Highway Safety Administration (NHTSA) are the walk and turn test and the one leg stand test.
When a police officer has an individual perform the walk and turn test, the officer is looking for eight clues of possible intoxication. The eight clues are lack of balance during instruction stage, beginning the test too soon, stopping while walking, heel to toe more than one inch apart, steps off the line, using one's arms for balance, loss of balance on turns or making a turn incorrectly, and an incorrect number of steps.
The one leg stand test requires an individual to divide his or her attention between two stages, the instruction stage and the balance and counting stage. An individual who has a hard time counting or maintaining balance may be impaired.
Frequently, police officers will ask an individual, who is suspected of driving while intoxicated, to perform other field tests. However, many of the tests have not been approved by NHTSA.
A police officer may ask someone to recite the alphabet from A to Z or from A to K. Other officers will ask someone to recite the alphabet backwards. Additionally, some officers will have someone touch their nose with their index finger or touch their thumb to all the fingers on the same hand as the thumb. The defendant's attorney should vigorously cross examine the police officer about these non approved tests.
The lawyers at Montagna & Montagna, P.C. know how to cross examine police officers involved with a DUI arrest. We welcome the opportunity to discuss your case with us and to assist you in preparing a zealous and complete defense.

Arizona v. Gant

As the Supreme Court of the United States held, "Police may search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believe the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of the arrest."

Examples of Jurisdiction and Modification of Child Support Orders

A. Original order entered in VA with noncustodial parent in VA and child and custodial parent moving out of state: VA only state than can modify and enforce order

B. Original order entered in VA and all parties have moved out of state: VA loses ability to modify order but it can continue to enforce the order until modified by other state

C. Order entered in another state, with custodial parent and child in Virginia and non custodial parent out of state:
1. Custodial parent cannot modify order in VA and must got to noncustodial parent's state.
2. Noncustodial parent could modify order in VA

Roseborough v. Commonwealth

In this case, the Virginia Court of Appeals upheld the defendant's conviction for DUI. Additionally, the defendant was involved in an accident on a private road in an apartment complex. Furthermore, the defendant offered to submit to a breathalyzer before the officer could read the implied consent law. Finally, the officer did not see the defendant operate his vehicle, but nevertheless, the officer arrested the defendant.

Approved breath test devices in Virginia

In Virginia, two breath testing machines are authorized to be used in determining if someone has operated their vehicle under the influence of alcohol. The older machine, Intoxilyzer 5000, uses infrared technology to analyze alcohol content. The newer machine, Intox EC/IR II, uses both infrared and electrochemical technology to analyze alcohol content.

With the Intox EC/IR II, an infrared beam passes over the collected sample. Thereafter, a portion of the breath is introduced to the fuel cell where the result is calculated. The infrared sensor is also used to determine if there is any residual alcohol in the mouth.

Virginia also authorizes numerous devices to be used in preliminary breath tests. The preliminary test results are generally not admissible at trial.