A. 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 (i) in accordance with the provisions of §§ 18.2-268.1 through 18.2-268.12 or (ii) performed by the Department of Forensic Science in accordance with the provisions of §§ 18.2-268.5, 18.2-268.6, and 18.2-268.7 on the suspect's whole blood drawn pursuant to a search warrant shall give rise to the following rebuttable presumptions:
1. If there was at that time 0.05 percent or less by weight by volume of alcohol in the accused's blood or 0.05 grams or less per 210 liters of the accused's breath, it shall be presumed that the accused was not under the influence of alcohol intoxicants at the time of the alleged offense;
2. If there was at that time in excess of 0.05 percent but less than 0.08 percent by weight by volume of alcohol in the accused's blood or 0.05 grams but less than 0.08 grams per 210 liters of the accused's breath, such facts shall not give rise to any presumption that the accused was or was not under the influence of alcohol intoxicants at the time of the alleged offense, but such facts may be considered with other competent evidence in determining the guilt or innocence of the accused;
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
4. If there was at that time an amount of the following substances at a level that is equal to or greater than: (i) 0.02 milligrams of cocaine per liter of blood, (ii) 0.1 milligrams of methamphetamine per liter of blood, (iii) 0.01 milligrams of phencyclidine per liter of blood, or (iv) 0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood, it shall be presumed that the accused was under the influence of drugs at the time of the alleged offense to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely.
B. The provisions of this section shall not apply to and shall not affect any prosecution for a violation of § 46.2-341.24.
Code 1950, § 18.1-57; 1960, c. 358; 1964, c. 240; 1966, c. 636; 1972, c. 757; 1973, c. 459; 1975, cc. 14, 15; 1977, c. 638; 1983, c. 504; 1986, c. 635; 1989, cc. 554, 574, 705; 1992, c. 830; 1994, cc. 359, 363; 2005, c. 616; 2017, c. 623.
Notes of Decisions
Cited in
80
cases (
12 in the last 5 years), 1979–2026 · leading case:
Yap v. Commonwealth, 643 S.E.2d 523 (Va. Ct. App. 2007).
Yap v. Commonwealth, 643 S.E.2d 523 (Va. Ct. App. 2007).
· cites it 25× “2d 11 (1989), violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Article I, section 8 of the Virginia Constitution; and (3) Code § 18.2-269 creates a mandatory presumption which unconstitutionally violates the Due Process Clause of…”
Luginbyhl v. Commonwealth, 628 S.E.2d 74 (Va. Ct. App. 2006).
· cites it 12× “See Code § 18.2-269(A)(3). We succinctly addressed in Williams v.”
Stevens v. Commonwealth, 616 S.E.2d 754 (Va. Ct. App. 2005).
· cites it 12× “*758 At a pretrial hearing, the trial court suppressed the implied consent law blood sample analysis and precluded the Commonwealth from using the presumption of intoxication pursuant to Code § 18.2-269. The trial court based its ruling on a finding that the Commonwealth had…”
Davis v. Commonwealth, 381 S.E.2d 11 (Va. Ct. App. 1989).
· cites it 20× “In order to facilitate that determination, when chemical tests were performed, Code § 18.2-269 provided for certain presumptions for and against the conclusion that a driver was "under the influence of alcohol" at the time of the alleged offense.”
Roseborough v. Commonwealth, 688 S.E.2d 882 (Va. Ct. App. 2010).
· cites it 32× “In response to the argument that he voluntarily took the *885 test, [4] appellant argued that agreeing to the test did not validate his arrest and that the presumption in Code § 18.”
Davis v. Commonwealth, 703 S.E.2d 259 (Va. Ct. App. 2011).
· cites it 12× “2-266(ii), (iii), or (iv), Code § 18.2-269 creates a rebuttable presumption that the accused was under the influence when the accused has a blood alcohol concentration of 0.”
Freddie Beckham, III v. Commonwealth of Virginia, 799 S.E.2d 689 (Va. Ct. App. 2017).
· cites it 8× “2-266(ii), (iii), or (iv), Code § 18.2-269 creates a rebuttable presumption that the accused was under the influence when the accused has a blood alcohol concentration of 0.”
Essex v. Commonwealth, 322 S.E.2d 216 (Va. 1984).
· cites it 6× “Code § 18.2-269 expressly provides that the presumptions it creates arise only when a blood-alcohol test is conducted "in accordance with the provisions of § 18.”
Stevens v. Commonwealth, 603 S.E.2d 642 (Va. Ct. App. 2004).
· cites it 12× “At a pretrial hearing, the trial court suppressed the implied consent blood sample analysis and precluded the Commonwealth from using the presumption of intoxication pursuant to Code § 18.2-269. The trial court based its ruling on a finding that the Commonwealth had failed to…”
West v. Commonwealth, 597 S.E.2d 274 (Va. Ct. App. 2004).
· cites it 4× “Under Code § 18.2-269(A)(3), the trial court can presume from that evidence "that the accused was under the influence of alcohol intoxicants at the time of the alleged offense.”
Grant v. Commonwealth, 682 S.E.2d 84 (Va. Ct. App. 2009).
· cites it 12× “08 grams or more per 210 liters of breath) or to invoke the legal presumption of intoxication provided by Code § 18.2-269. 7 The only evidence that put the officer’s testimony in context was the inadmissible breath *727 certificate.”
Castillo v. Commonwealth, 465 S.E.2d 146 (Va. Ct. App. 1995).
· cites it 9× “Code § 18.2-269; Overbee v. Commonwealth, 227 Va.”
— Va. Code Ann. § 18.2-269(1) — 1 case
— Va. Code Ann. § 18.2-269(3) — 8 cases
Essex v. Commonwealth, 322 S.E.2d 216 (Va. 1984).
“Code § 18.2-269 expressly provides that the presumptions it creates arise only when a blood-alcohol test is conducted "in accordance with the provisions of § 18.”
— Va. Code Ann. § 18.2-269(3)(A) — 1 case
— Va. Code Ann. § 18.2-269(A) — 12 cases
Freddie Beckham, III v. Commonwealth of Virginia, 799 S.E.2d 689 (Va. Ct. App. 2017).
“2-266(ii), (iii), or (iv), Code § 18.2-269 creates a rebuttable presumption that the accused was under the influence when the accused has a blood alcohol concentration of 0.”
Grant v. Commonwealth, 682 S.E.2d 84 (Va. Ct. App. 2009).
“08 grams or more per 210 liters of breath) or to invoke the legal presumption of intoxication provided by Code § 18.2-269. 7 The only evidence that put the officer’s testimony in context was the inadmissible breath *727 certificate.”
— Va. Code Ann. § 18.2-269(A)(1) — 6 cases
Roseborough v. Commonwealth, 688 S.E.2d 882 (Va. Ct. App. 2010).
“In response to the argument that he voluntarily took the *885 test, [4] appellant argued that agreeing to the test did not validate his arrest and that the presumption in Code § 18.”
— Va. Code Ann. § 18.2-269(A)(2) — 5 cases
Roseborough v. Commonwealth, 688 S.E.2d 882 (Va. Ct. App. 2010).
“In response to the argument that he voluntarily took the *885 test, [4] appellant argued that agreeing to the test did not validate his arrest and that the presumption in Code § 18.”
— Va. Code Ann. § 18.2-269(A)(3) — 18 cases
Luginbyhl v. Commonwealth, 628 S.E.2d 74 (Va. Ct. App. 2006).
“See Code § 18.2-269(A)(3). We succinctly addressed in Williams v.”
West v. Commonwealth, 597 S.E.2d 274 (Va. Ct. App. 2004).
“Under Code § 18.2-269(A)(3), the trial court can presume from that evidence "that the accused was under the influence of alcohol intoxicants at the time of the alleged offense.”
— Va. Code Ann. § 18.2-269(A)(4)(ii) — 1 case
— Va. Code Ann. § 18.2-269(A)(ii) — 1 case
— Va. Code Ann. § 18.2-269(B) — 1 case
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