DUI involving drugs: how Nebraska, Virginia and Montana word the offense

For questions about a driver's license notice, see the related Montana, Nebraska and Virginia state information pages below. This article compares the offense wording in selected statutes from those states. It does not interpret a licensing notice or decide a person's driving privileges.

The discussion below stays with what those offense provisions say about drugs, alcohol and measurements. It is not a licensing-hearing guide, a personal deadline calculation or an assessment of any reader's charge. A lawyer licensed in the state involved can address questions about an actual notice or case.

An impairment ground is worded around the driver's condition: whether the person was under the influence of a drug, or under its influence to the degree a statute describes. Nebraska's and Montana's statutes each contain a ground worded around being under the influence of any drug, and Virginia's statute contains grounds worded around influence that impairs the ability to drive or operate safely.

A measured-substance ground, sometimes called a per-se ground, is written differently. Instead of describing the driver's condition, it names a substance, a kind of sample and a level, and makes driving with that level or more an offense on its own terms. Virginia's and Montana's statutes each contain grounds of this kind for named drugs. The measured grounds in the Nebraska excerpt concern alcohol only.

Nebraska's statute, Neb. Rev. Stat. § 60-6,196, makes it unlawful for any person to operate or be in the actual physical control of any motor vehicle while under the influence of alcoholic liquor or of any drug. The drug and alcohol wording sit side by side in that ground.

The same section then lists separate alternatives based on a concentration of alcohol in the person's blood or in the person's breath. Those alternatives concern alcohol. They do not supply a drug-concentration rule, and the excerpt does not define what being under the influence means or set any drug-test threshold.

The section provides that a person who operates or is in actual physical control of a motor vehicle in any of the listed conditions is guilty of a crime, and it refers to separate sentencing provisions for punishment. Those provisions are not part of the excerpt relied on here.

Virginia's statute, Va. Code § 18.2-266, makes it unlawful to drive or operate any motor vehicle, engine or train while 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 the person's ability to drive or operate any motor vehicle, engine or train safely. The impairment qualification is part of the ground itself: the wording ties drug influence to safe operation.

A separate ground covers driving or operating while under the combined influence of alcohol and any drug or drugs, again to a degree which impairs the ability to drive or operate any motor vehicle, engine or train safely. The statute also contains grounds based on alcohol alone, through a chemical test result or through being under the influence of alcohol.

For purposes of the article containing the section, the term motor vehicle includes mopeds while operated on the public highways of the Commonwealth.

Virginia's statute contains a further ground: driving or operating while the person has a blood concentration of any of the listed substances at a level equal to or greater than the level the statute sets for that substance. The list names cocaine, methamphetamine, phencyclidine, and a further substance identified in the statute by its chemical name. Each is described as a concentration in blood.

Virginia's listed-substance ground is framed in terms of blood concentration for the substances it names. Its separately worded drug-influence and combined-influence grounds use the safe-operation impairment qualification. This guide compares those different forms of wording; it does not interpret a person's test result, offer a medical assessment, or predict how a court would decide a particular charge.

Montana's statute, Mont. Code Ann. § 61-8-1002, provides that a person commits the offense of driving under the influence by driving or being in actual physical control of a vehicle or a commercial motor vehicle upon the ways of the state open to the public while under the influence of alcohol, any drug, or a combination of alcohol and any drug. That is its under-the-influence ground.

Montana's section then sets out measured grounds, each with its own vehicle and location wording. Its THC ground applies to driving or being in actual physical control of a noncommercial vehicle or commercial motor vehicle within Montana while the person's tetrahydrocannabinol level, excluding inactive metabolites, as shown by analysis of the person's blood or other bodily substance, is at or above the level the statute sets. That location wording differs from the ways-open-to-the-public wording of Montana's under-the-influence ground.

A listed-substance ground applies to a noncommercial vehicle or commercial motor vehicle on the ways of the state open to the public while, without a valid prescription, the person has an amount of a listed prohibited substance in the body, shown by blood analysis, at or above the listed level. The list names amphetamine, cocaine, a cocaine metabolite, heroin, heroin metabolites including morphine and another named compound, lysergic acid diethylamide, methamphetamine, phencyclidine and fentanyl. The excerpt omits a separate provision concerning younger drivers, which is not addressed in this guide.

Each statute refers to how a concentration is shown, and those references are narrow. Virginia's alcohol-concentration ground refers to a chemical test administered as provided in the article, and its specified-substance ground is framed as a blood concentration. Montana's THC ground refers to analysis of blood or another bodily substance, its listed-substance ground to analysis of blood, and its alcohol-concentration grounds to blood, breath, oral fluid or another bodily substance. The concentration alternatives in the Nebraska excerpt refer to alcohol in blood or breath and name no drug sample.

Montana's separate paragraph on alcohol-concentration inferences refers to a sample drawn or taken within a reasonable time after the alleged act. That paragraph concerns alleged driving or actual physical control while under the influence of alcohol. This guide does not set out sample-collection instructions, equipment standards, or a procedure for challenging a result.

Virginia's statute provides that a charge alleging a violation of the section supports a conviction under any of its listed grounds, including the drug-impairment, combined-influence and specified-substance grounds. Montana's statute provides that when the same acts may establish an offense under its listed grounds, a person charged with that conduct may be prosecuted for a violation of another relevant ground, but may be convicted of only a single offense under the section or of a similar offense under previous laws of the state.

These provisions describe how each statute's grounds relate to a charge. They do not indicate which ground will be relied on in a given case or how any case will end. The Nebraska excerpt does not contain comparable wording. A lawyer in the reader's state can explain how these provisions bear on a particular charge.

Deadlines, limits and penalty ranges are set by each state’s statutes, so this page does not state them. Each state page shows them with the official source and the date they were verified — or says plainly that a figure has not been confirmed yet.