Virginia Drunk Driving Loop Hole

Changes in blood-alcohol level after arrest are at issue in Albo-sponsored bill

Virginia legislators want to fix what they believe is a growing willingness of judges to reduce drunken-driving charges to lesser offenses.

But in getting there, some delegates fear, the effort may be handing drunken drivers a General Assembly-inspired argument to stay on the road.

At issue are thousands of already-issued drunken-driving citations still waiting to go to trial and concurrent efforts by legislators who say the state's drunken-driving laws include a loophole that needs to be closed.

"This is the bill we are going to hear about when we go home," Del. Robert B. Bell, R-Albemarle, told fellow members of a House Courts of Justice subcommittee late Wednesday night between bites of Chinese take-out.

"We could be looking at thousands of cases" where reduced sentences could occur because of legislative debate and votes, he said.

Bell and others argued that by changing current law, the legislature is essentially conceding the validity of defense arguments that a person's alcohol content can increase to criminal levels between the time when a person drives a car and when the person is actually tested.

Under a bill sponsored by longtime defense attorney Del. David B. Albo, R-Fairfax, there would be a determination that any person is guilty of drunken driving if the blood or breath test reaches the threshold level "at any time after driving."

Current law says that an arrest must occur within three hours of driving if a blood-alcohol test is to be used as evidence. Usually the test occurs close to the time of the arrest.

The bill is designed to block defense lawyers from arguing that the alcohol level rose to the threshold limit of 0.08 after the person charged had been driving, but not when the person was operating a vehicle. The lapse is possible because people process alcohol at different speeds before it affects a person's judgment.

"What it's doing is making the test factual evidence that drunk driving occurred, not just another element of the prosecution," said Charles Sharp, speaking for the Virginia Association of Commonwealth's Attorneys.

But J. Burkhardt Beale, considered by some to be the dean of DUI defense lawyers in Virginia, said yesterday that the effort is part of a nationwide movement by MADD and other organizations to "shift the entire burden of proof to the defendant. That's not what we should be telling our judges. I'd say 75 percent of our judges are under the misimpression that the .08 already is proof of guilt."

"States all around the country have been closing off the defense," said Michael C. Tillotson, a veteran Newport News attorney whose practice deals exclusively with driving-under-the-influence cases. "In Virginia, some judges listen to the defense; other places they don't."

That's borne out by research put together by Virginia's Mothers Against Drunk Driving chapter. "We're seeing problems in Fairfax, Loudoun and Prince William," MADD volunteer Jeffrey Levy told Albo's committee Wednesday night.

In Fairfax alone, MADD turned up 1,647 DUI arrests, 23 percent of which did not result in drunken-driving convictions. In Prince William County, they found 189 charges of drunken driving were reduced to reckless driving; all but three of those cases involved blood-alcohol levels greater than 0.08.

No figures are available to show how many of the state's roughly 28,000 drunk-driving arrests a year are being reduced. Nor is there factual evidence of how many reductions involve cases where blood-alcohol test results are close to the 0.08 threshold. A defense argument of a changed alcohol level is more likely the closer the test is to the 0.08 threshold.

"We think it's a trend that's going to grow; we're seeing it from Galax to Fairfax," said Kurt Erickson, president of the Washington Regional Alcohol Program. "It absolutely goes against the original intent of the law, which was that .08 is factual evidence of driving under the influence."

Albo and Bell are still pondering the impact of the bill on pending cases and at one point debated whether to make the bill an emergency measure. That means the bill could become law months before the usual July 1 enactment date of most laws.

The move would cut into the number of times defense lawyers would be able to use the legislature's action as part of their defense arguments in pending cases.

But one delegate wondered if the emergency clause would simply bring more attention to using the bill as a defense tool. Another delegate said he would be ready to use the defense argument when he gets back home.

"I know I'm going to use it, if the check that just came in [from a prospective DUI client] is good," said House Majority Leader H. Morgan Griffith, R-Salem, who, like many on the committee, is a defense lawyer.

Supporters didn't seem fazed by the possibility that Albo's bill might cut short his own defense of clients if it becomes law yet embellish his practice until then.

"You'd be hard-pressed to find a person like Delegate Albo in a citizen legislature who has done more to toughen drunk-driving laws," said Erickson.