42 U. Rich. L. Rev. 107 (2007-2008)
Rethinking DUI Law in Virginia

handle is hein.journals/urich42 and id is 117 raw text is: RETHINKING DUI LAW IN VIRGINIA
Monte Kuligowski *
I. INTRODUCTION
Prosecuting the crime of driving under the influence (DUI) (or
driving with a blood alcohol concentration (BAC) level of at least
0.08)1 without doing damage to some of our most cherished con-
stitutional principles is oftentimes problematic. To narrow the fo-
cus of that wide vein, failing to always require the requisite
criminal intent for conviction is the primary consideration of this
essay.2
The crime of DUI is an intense emotional, political, and consti-
tutional subject. On one side of the debate, we have organized
lobby groups, most notably Mothers Against Drunk Driving, that
push for ever-harsher drunk driving laws. On the other side, we
have the defense bar and those concerned with sacrificing the
Constitution in exchange for easier DUI convictions.
Those having lost loved ones at the hands of drunk drivers and
those who are simply concerned about the safety of the roadways
have every reason to demand stricter drunk driving laws. And
• Practitioner, Monte E. Kuligowski, P.C., Virginia Beach, Virginia; J.D., 1996, Re-
gent Law School.
1. Virginia Code section 18.2-266 also may be violated by driving under the influence
of prescription and non-prescription drugs, but the vast majority of cases are alcohol re-
lated. See VA. CODE ANN. § 18.2-266 (Cum. Supp. 2006).
2. The adverbs willfully, intentionally, and/or recklessly are conspicuously ab-
sent in section 18.2-266, which reads like a simple traffic infraction: It shall be unlawful
for any person to drive or operate any motor vehicle ... while such person is under the in-
fluence of alcohol. Id. In United States v. X-Citement Video, Inc., 513 U.S. 64, 69 (1994),
the Supreme Court of the United States held that some form of scienter is to be implied in
a criminal statute even if not expressed, and ... a statute is to be construed where fairly
possible so as to avoid substantial constitutional questions. The word scienter is syn-
onymous with mens rea, meaning culpable state of mind or criminal knowledge. See
BLACK'S LAW DICTIONARY 1373 (8th ed. 2004). Unfortunately, the traffic courts routinely
overlook the essential element of criminal intent.

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