Interviewer:  Is there a common backstory that people tell you as to why they were arrested? Like, “Oh, I only had two beers,” or that kind of thing?

Brian Geno: Well, a lot of times people don’t think they’ve done anything wrong when they’ve had three. Three within a short period of time can get a person all the way up to 0.09 from what I understand. They’ll go and they’ll have a couple of drinks with friends, not really realizing, and then they get in the car If it’s less than an hour after they’ve just had three they can be 0.09. The more time that’s involved, the less the alcohol concentration will be, but if they’ve had three within an hour, it can be over that legal limit of 0.08%.

I’ve seen people drink a lot and I didn’t think they were 0.09, but according to the information readily available about blood alcohol concentration, each drink, like a beer or a glass of wine, may to be able to raise your blood alcohol by 0.03 – just one, within an hour. If you believe the published materials that they have, three will get you over the limit. I’ve seen demonstrations where a person will have four or five or even six and it takes a while for them to get up over the 0.1% level. A lot of it depends on the size, sex, and health of the person.

Interviewer: Does Virginia have laws that address people that are below a 0.08? Will they still be arrested if they blow 0.06, 0.07, or 0.04?

Brian Geno: Yes. Virginia, for the longest time, had a presumption. If you were 0.08 or more, then you were presumed to be intoxicated while driving. A case that went to the Virginia Supreme Court determined there should be no such thing as a presumption in Virginia. The law does not permit the government to convict people for having a blood alcohol concentration of 0.08 without a showing of something more, like evidence that the person was under the effects of alcohol.

Interviewer:  If you’re asked to give a breath test and your result is below 0.08, 0.06, 0.05 will you still be arrested or charged with DUI?

Brian Geno: It doesn’t happen as much but, like I said, I had a case today where a person was 0.07 and he was stopped because he weaved in his lane. They pulled them over, smelled alcohol, and even though he was ultimately 0.07, they had already charged him with DWI. They didn’t know he was 0.07 until he was at the police station.

They go through the whole process of determining whether you appear intoxicated. Then they arrest you and then they transport you to the police station and then they find out when they’re there what the exact number is. They have sort of a guesstimate number but they don’t have the real one until they get there. Yeah, it definitely happens, but as a defense attorney, I like it when it turns out to be below 0.07% because when it happens it’s much easier to win that case.