Somehow comforting to see other states struggle with DWI laws -- even if their legislatures are ahead of the Texas Legislature.

Virginia recently had a trial judge hold their 3 hour rule to unconstitutional. http://www.msnbc.msn.com/id/8929183/


The statute at issue is Va. Code Ann. § 18.2-269:

In any prosecution for a violation of § 18.2-36.1 or clause (ii), (iii) or (iv) of § 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 §§ 18.2-268.1 through 18.2-268.12 shall give rise to the following rebuttable presumptions:
* * *
(3) If there was at that time 0.08 percent or more by weight by volume of alcohol in the accused's blood or 0.08 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 alleged offense; or

Somehow, I doubt this one would hold up on appeal--presuming Virginia permits state appeals. More than half of the states have some sort of presumption of intoxication for test results at or over .08 or .10 if the test is taken within a specified time period after operating the vehicle. Most of the states use two hours although some use three hours and Alaska uses four hours. After all, its just a presumption and can be rebutted. I believe Arizona's law, however, is that if you are at a specified BAC within two hours of operation, that is the offense. The statute permits the defendant to put on evidence that he consumed alcohol after operation (i.e., usually after an accident) as a defense.

I have a chart I put together about 18 months ago on the DWI/DUI laws for all the states and territories if anyone is interested. Call me at (512) 424-2890 and I will e-mail you a copy.

Janette Ansolabehere
DPS Office of General Counsel