Virginia Law: Can Arrest for DUI if ANY Alcohol Present

The police cannot arrest you for a crime unless they have objective probable cause to believe that you commited the crime, right?

Well, not necessarily…. Let's take a look at Virginia's drunk driving laws [18.2-267(D)], which clearly state:

Whenever the breath sample analysis indicates that alcohol is present in the person's blood, the officer may charge the person with a violation of §§ 18.2-266, 18.2-266.1 or § 18.2-272, or a similar ordinance of the county, city or town where the arrest is made. [The numbers indicate the crimes of driving with .08% or under the influence of alcohol and/or drugs.]

In other words, if you have any measurable amount of alcohol in your body — even less than .01% — the officer can arrest you for driving under the influence (without any evidence that you are under the influence) or over .08% (depite clear evidence that you are not). How can they do that? Simple: What I have referred to over the years as "The DUI Exception to the Constitution"….

(Thanks to Virginia attorney Mike Tillotson, who is appealing the statute on constitutional grounds.)

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