I said I would look into the Virginia DUI statute surrounding the judge’s interpretation of the law, throwing out two drunk driving cases. Additionally, a commenter, ZacharyRD also was wondering what information I had found. So, here’s what I dug up, the latest, as of 2004, statute on the books regarding driving while under the influence in Virginia.

Driving motor vehicle, engine, etc., while intoxicated, etc It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article,

So, the first part of the law is consistent with that I beleived it to be, that driving with a .08 is illegal. But there are additional clauses.

ii) while such person is under the influence of alcohol, (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, or (iv) while such person is under the combined influence

However, the second and third clause seek to determine intoxiation through a means of observation and circumstantial evidence. I think on those grounds the Judge might have been right, if .08 is the legal limit, that should be the law, unfortunatley it seems they tried to be very nuacned to offer the prosecutors and police a lot of room. As a result, they opened up a huge hole for the defense.