Legislative approaches to increasing Virginia's conviction rate for drug-related DUI.

Lau, Robyne R; Black, Jonathan C; Jernigan, Jack D · 1992 · ROSA P / Virginia Transportation Research Council (VTRC)

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Summary

This 1992 report by the Virginia Transportation Research Council addresses the low conviction rate for drug-related driving under the influence (DUI) in Virginia. Although a 1988 statutory revision allowed police to require blood samples from suspects suspected of drug-impaired driving, judges remained reluctant to convict defendants without established presumptive blood concentration levels that scientifically prove impairment. Because such scientific links are currently impossible to establish for most drugs, the study investigated legislative amendments to facilitate convictions when drugs are detected in a suspect’s blood. The researchers conducted a legal review of Virginia case law and statutes, alongside comparative analysis of California law, to evaluate two primary questions: whether blood test results obtained under Virginia’s implied consent statute could be used as evidence for non-driving-related "internal possession" charges to enable plea bargaining, and whether Virginia law could be amended to criminalize driving with any nonprescribed drug in the blood regardless of proven impairment. Based on these findings, the authors formulated three legislative options: two involving the criminalization of internal possession of drugs (one aligning with existing possession penalties, the other imposing a mandatory 90-day jail term) and one redefining drug-related DUI to require only a positive blood test for a nonprescribed substance. The analysis concluded that internal possession offenses (Options 1 and 2) were not feasible. Legal ambiguity persisted regarding whether blood samples collected under implied consent could be admitted in internal possession trials, and penalty structures were misaligned; existing possession penalties were often less severe than DUI penalties, failing to incentivize plea bargains, while harsher penalties would create legal inconsistencies. Conversely, the researchers found strong support for Option 3, which would remove the requirement to prove actual impairment. Citing California case law and historical Virginia precedents, the authors argued that the presence of a nonprescribed drug constitutes prima facie evidence of being under the influence, shifting the legal standard from proving impairment to establishing reckless operation. The report recommends that Virginia seriously consider amending its DUI statute to allow conviction based solely on a positive blood test for nonprescribed drugs. This approach bypasses the scientific impossibility of establishing per se impairment levels for drugs. However, the authors caution that this significant shift in the burden of proof may face substantial opposition from the Virginia General Assembly and the courts.

Key finding

Criminalizing internal possession is not a feasible option for Virginia due to legal uncertainties regarding blood evidence admissibility and inconsistent penalty structures, whereas redefining the offense to permit conviction based on a positive blood test for a nonprescribed drug is the recommended legislative approach.

Methodology

review

Provenance

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Topics

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• illicit drugs
• dui enforcement
• drowsy as impairment