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Admitting Evidence of DUI in Virginia

When someone has been arrested for DUI/DWI there are some things that may not be admitted as evidence at trial. When someone suspected of DUI/DWI is stopped by an officer and refuses a breath test or field sobriety test they may do so without such refusal being used as evidence against them at trial, except in rebuttal when commented on by the defense. However, if someone is arrested for suspected DUI/DWI they are required, by the implied consent statute, to submit a chemical sample (either blood or breath or both). Such a refusal is admissible as evidence in court, but only as a way to explain why such test results are on in evidence. An unreasonable refusal is not an admission of guilt and cannot be used as evidence to determine one’s guilt or innocence. Unreasonable refusal is simply a piece of all the evidence to be considered.

When an officer pulls someone over and the accused does not refuse a field sobriety test the observations of the officer leading up to the stop and during the interaction after the stop may be brought up in court and the defendant may refute or challenge the observations of the officer. If the accused also consents to a breath analysis test the results of that test may only be used in certain circumstances. Those circumstances deal with the officer conducting the test and the authenticity of the results. A breath analysis may only be used as evidence in a criminal or civil proceeding if the officer administering the test was licensed to operate the machine which was used for the analysis. And, after the test the officer must issue a certificate which states that test was conducted in accordance with all policies and specifications set out by the Department, that the accused was informed prior to the test that he/she was entitled to watch the process and see the reading or receive a copy of any printout which was produced, that the name of the accused, the date and time the sample was taken, the alcohol content, and the name of the officer administering the analysis. When such a certificate is attested to by the individual making out the certificate it may be used as evidence in either a criminal proceeding or a civil proceeding. If such certificate was submitted by a member of the Department there need not be a signature or seal of any kind in order for the contents of such certificate to be admissible.

If one is arrested for DUI/DWI or a related statute and does submit a chemical sample the results of the test that will show the BAC may be presented in court as well. To challenge the BAC a defendant will want to prove that the proper procedures were not followed in taking and testing the sample. If there is no evidence of improper procedure the jury will be instructed that if the chemical test showed a BAC between 0.0 and 0.05 there is a rebuttable presumption that the defendant was not under the influence of alcohol or other intoxicants at the time of the offense, if there was a BAC of more than 0.05 but less than 0.08 there is no presumption one or the other as to whether the defendant was under the influence of alcohol or other intoxicants. If, however the defendant’s chemical test shows a BAC of 0.08 or higher it is presumed that the defendant was, in fact, under the influence at the time of the offense. All the presumptions above are rebuttable and therefore either side may present evidence contrary to such presumption. Also, these presumptions do not apply when someone is arrested for driving a commercial motor vehicle under the influence of alcohol or other substances.


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