Can I Get a DUI if my BAC is Below 0.08 in Virginia?

In Virginia, an officer can charge you with DUI if they believe you're driving while impaired by drugs or alcohol, even if you blow less than a 0.08.

Normally, an officer will arrest you if they have a probable cause to believe that you were driving under the influence of alcohol.

In this scenario, they will ask that you take a breathalyzer or blood test to corroborate their claims.

If your BAC test returns a concentration of higher than 0.08, the officer will immediately charge you with driving under the influence.

However, you can still receive DUI charges even if you’re below this legal limit.

This is because the Virginia Code defines DUI quite simply as driving while under the influence of either drugs or alcohol.

Even if your BAC is below 0.08, an officer can still charge you with DUI under this statute if they believe that you were driving while significantly impaired.

In this article, we’ll talk about how you can be arrested for DUI with a BAC of below 0.08%.

We’ll also go over how evidence works in such cases.

How Does Virginia Define DUI?

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The Virginia Code specifically defines five scenarios in which someone can be charged with driving under the influence:

  1. Driving with a BAC of 0.08 or more.
  2. Driving while “under the influence of alcohol” (as noted above).
  3. Driving while under the influence of any drug or combination of drugs which impairs your ability to drive.
  4. Driving while under the influence of both drugs and alcohol.
  5. Driving with traces of certain drugs in your blood above a certain threshold (such as 0.02 miligrams of cocaine per liter of blood).

In the contexts of this article, we’re primarily interested in the second and fourth points, which allow for a DUI arrest even if you have a BAC of below 0.08.

In both of these scenarios, the main argument of your case will center on whether or not you were driving while impaired by the effects of alcohol.

DUI and Presumption of Guilt

You’ve probably heard the phrase “innocent until proven guilty” before. However, in practice that’s not how most DUI cases work.

If you blow a 0.08 or higher on your breathalyzer test in Virginia, the court will effectively presume that you are guilty.

This is because breathalyzer evidence that your BAC was higher than 0.08 is usually enough to convict you of DUI by itself.

This is true in cases where the Commonwealth can prove that the results are accurate and there weren’t any deficiencies with either the testing method or the machine used to conduct the test.

For this reason, if you have a BAC of higher than 0.08 you’ll instead have to show your innocence, or at the very least argue for lesser charges due to mitigating circumstances.

On the other hand, if your BAC is below 0.08 at the time of your arrest, the prosecution will instead have to prove that you are guilty of driving while impaired by the effects of alcohol.

Proving Impairment

As noted above, in order to prove that you’re guilty of DUI, the state will have to prove that you were driving while impaired.

In this scenario, there are actually several arguments that they could make.

A few of the most common pieces of evidence in this scenario include:

  • A BAC Slightly Below the Legal Limit — If you’re arrested and taken to a police station where you blow a 0.07, there is a decent chance that your BAC was above 0.08 at the time of your arrest. However, this alone would not create a presumption against you or in your favor.
  • Erratic Driving — Excessively erratic driving is evidence that someone is driving while impaired by alcohol or drugs.
  • Field Sobriety Tests — While not all field sobriety tests prove DUI, many can be used as evidence for a DUI conviction.

Refusing a Breathalyzer Test

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All of the procedures above apply to situations where you blow below a 0.08 on a breathalyzer test.

However, this is very different from what happens if you refuse to take a breathalyzer test in the first place.

That’s because Virginia uses an implied consent law when administering post-arrest breathalyzer tests.

Basically, by driving on any Virginia highway you are effectively giving your “implied” consent to breathalyzer and blood testing upon a DUI arrest.

If you refuse a breathalyzer test after being arrested for a DUI, two things will happen.

First, you will be charged with a civil offense for refusing a breathalyzer test if this is your first time refusing.

If there is sufficient evidence to find you guilty of the charge, the court is required to suspend your license for one year.

Second, your refusal after your arrest will be brought up as evidence against you in your DUI case.

While your refusal alone won’t be enough to convict you of DUI, it certainly won’t reflect well on you in court.

Special Cases

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As we noted above, the easiest way to receive a DUI charge while below a 0.08 BAC is through impaired driving.

However, there are also a few other circumstances in which you could receive charges despite being below the legal limit.

Underage Drivers

Virginia has a zero-tolerance policy for individuals under 21 who choose to drink and drive.

If they’re caught driving with a BAC of between 0.02 and 0.08, they could face criminal penalties under this zero-tolerance statute.

If you are convicted of underage DUI, the court will sentence you to a mandatory minimum $500 fine or 50 hours of community service.

In addition, you will lose your license for one year. However, there may be the possibility of obtaining a restricted license.

Commercial Driver’s License Holders

If you drive a commercial vehicle, the DUI standards are slightly stricter than if you’re a normal driver.

Under the Virginia Code, the BAC cutoff for CDL holders is 0.04 rather than the normal 0.08.

In addition, the penalties for a DUI conviction are harsher for CDL holders.

A CDL holder can lose their commercial license permanently if convicted of DUI more than once.

Additionally, a CDL holder convicted of a DUI will not be eligible for a restricted license.


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In Virginia, DUI is a serious charge with long-term consequences.

Even if it was your first time, you are guaranteed to have your driving privileges suspended for at least one year in addition to several other significant consequences.

In Virginia, DUI can be defined quite simply as “driving while impaired due to the effects of drugs or alcohol.”

For this reason, you can receive a DUI charge even if your BAC is below 0.08 at the time of your arrest.

The only difference is in the strategy each side will use on the day of your trial.

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