In addition to the myriad defense tools available in all criminal and traffic cases, DUI cases offer specific defenses that merit separate discussion. There are four main categories of driving under the influence cases: 1) driving under the influence of alcohol where the prosecution can present evidence of the accused’s blood alcohol content (“BAC”) via Virginia’s implied consent statutes; 2) driving under the influence where the prosecution lacks such evidence because of the accused’s refusal to submit to testing; 3) driving under the influence of alcohol where the government obtained BAC evidence outside of the implied consent statutes and 4) driving under the influence of drugs. Driving under the influence of drugs presents the same issues as the more common cases involving alcohol. The important legal difference is that regardless of whether the evidence of drug use enters via implied consent or some other method, the Commonwealth often must use a toxicologist. The important practical difference is that many prosecutions for driving under the influence of drugs involve the use of prescription drugs that the accused took according to a valid prescription. While technically illegal, and just as dangerous if taken in the wrong dosages, courts often will view the user of valid prescription drugs in a better light than a drunk driver.
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