Yes. Virginia can prosecute a DUI case without introducing a breath or blood alcohol result. That does not relieve the Commonwealth of proving impairment beyond a reasonable doubt. It changes the evidence the prosecution must rely on.
That distinction is important if a test was refused, never obtained, or excluded from evidence. Removing a test result can make a substantial difference. It does not automatically require a dismissal.
What the Supreme Court decided in Richerson
In Commonwealth v. Richerson, decided April 23, 2026, the Supreme Court of Virginia reinstated a DUI conviction. The prosecution had presented an officer’s testimony and body camera footage, but no chemical analysis establishing the driver’s alcohol concentration.
The officer described an odor of alcohol, glassy eyes, slurred speech, sweating, and unusual behavior. The trial judge considered the circumstances together. The Supreme Court concluded that sufficient evidence supported that finding and that the Court of Appeals had improperly substituted its assessment of the evidence and proposed explanations that did not flow from the record.
The Court also emphasized the uninterrupted sequence between the defendant’s driving and the officer’s observations. There was no unaccounted-for interval in which he could have consumed alcohol after driving.
A numerical DUI charge and an impairment case are different
Virginia Code § 18.2-266 contains more than one route to a DUI conviction. One involves a qualifying alcohol concentration. Another involves driving or operating while under the influence of alcohol.
In an impairment case, the review cannot stop at whether a certificate of analysis exists. The lawyer needs to examine the remaining proof: driving, statements, coordination, speech, testing, and the timing of the officer’s observations.
What I look for when reviewing the evidence
As a former prosecutor, I know the importance of looking at the case the government can actually present. As a defense attorney, I also need to identify where that proof falls short.
Does the recording support the officer’s description? Are statements being taken out of context? Is there evidence of a medical issue, injury, fatigue, or another explanation for an observation? Is that explanation supported by something in the record? Can the Commonwealth connect the observations to the time the person was driving?
Those are factual questions. Simply suggesting that a person might have been tired or nervous is different from developing evidence that supports that explanation.
Excluding a test can still matter
A successful challenge to a chemical test may remove a major piece of the prosecution’s case. The next step is to assess what remains. Sometimes the remaining evidence is weak. Sometimes it is substantial. Advice about trial or negotiation should reflect that difference.
A separate refusal charge can also carry consequences. This decision should not be read as advice to refuse testing or as a reason to assume that every case without a test has the same outcome.
If you face a DUI charge in Northern Virginia, bring your summons or warrant and any testing paperwork to your consultation. Dischley Law can review the charge and the evidence with you. Contact our office to discuss your case.