The Virginia Verdict Review

Comprehensive and Informative Commentary on State and Federal Legal Matters

Category Archives: Traffic

Virginia Supreme Court Opinion Creates Unintended Incentive to Drive Drunk

Given the most recent decision of the Virginia Supreme Court with respect to passive “operation” of a vehicle and the application ofVa. Code § 18.2-266, I wonder how many more citizens of the Commonwealth have to die before the General Assembly and the Supreme Court stop providing unintended incentives for drunk drivers to stay on the road.

In January of last year, in Nelson v. Commonwealth, 281 Va. 212 (2011), the Virginia Supreme Court affirmed the conviction of a man who, after being found asleep behind the wheel of his car with the radio running, was charged with DUI.  In support of this conviction, the Court reasoned that, by placing the car in the “on” or ‘accessory” position so as to activate the radio but not the ignition, the defendant was, in effect, operating the vehicle and was therefore in violation of Code 182.-266.  Alarmed by the implications of this ruling, I have been anxiously anticipating some form of retort or rebuttal from the legal community for the last year.  On March 2nd, that response finally arrived.  Unfortunately, it was not exactly the response I was looking for.  Instead of objecting to or overturning last year’s ruling, the Supreme Court of Virginia further solidified their opinion by affirming the DUI conviction of a man found sleeping behind the wheel. Enriquez v. Commonwealth, 2012Va. Lexis 49,March 2, 2012.  In doing so, I believe the Supreme Court has inadvertently signed the death warrant of untold drivers and passengers onVirginia highways.

In Enriquez,  the Defendant was originally investigated by the police after a parking meter attendant tried to ticket his car for being illegally parked in a bus zone and discovered him asleep inside.  Unable to rouse the man by knocking on the window, the attendant called the police and the situation progressed from there.  Ultimately, he was charged with (and later convicted of) DUI because he had the keys in the ignition so he could listen to the radio while his engine was off and car in park.

While some may not question the Defendant’s eventual conviction, my issues lies with the logic applied by the Supreme Court in reaching its decision.  Following previous cases, the Supreme Court engaged in an analysis  that focussed on whether a key was in a particular position in the ignition.  Va. Code § 18.2-266 prohibits a person under the influence from driving or operating a motor vehicle on the highways.  In Enriquez, the Supreme Court spends considerable effort stretching the definition of “operate” to now include merely having the keys in the ignition, even if the engine is off and the car is in park.  In its efforts in expanding the logical definition of “operate”, the Supreme Court has created a perverse incentive for drivers that will result in more deaths on theVirginia highways.

Because the Supreme Court’s reasoning criminalizes the simple act of turning on the heat on a cold night, or of listening to the radio, while  being drunk in a car, this opinion creates an incentive for drunk drivers, or those who feel the beginnings of impairment, to stay on the road.  There is no benefit to these drivers in stopping and resting and ensuring they are going to be safe.  As such a driver faces a criminal penalty if he stops and is caught, he has an incentive to keep going and to try to reach the safety of home.  Frankly, that is the last thing I want:  implicit encouragement to drunk drivers to stay on the road.  Based on the Court’s extension of previous cases, I fully expect it to find that the mere possession of car keys, when one has a push button ignition in his car, to be construed as “operating” the vehicle.  Again, more incentive not to stop, more incentive to stay on the road, more likelihood of killing someone.

I understand that drunk driving is a hot political button.  Every officer in the state makes a DUI inquiry during every traffic stop.  However, in non-alcohol related cases, the General Assembly has already provided an incentive for tired drivers to get off the road.   Under Virginia Code 46.2-830.1, the act of parking one’s car on the shoulder in order to rest is encouraged by removing any serious penalty for drivers who do so because they are feeling drowsy or tired.   Conviction for sleeping on the side of the road is a no demerit point offense.  The General Assembly has recognized that it wants tired drivers to get off the road.  It shouldn’t matter if he is tired because he has been up for twenty-four hours or because he has had too much to drink.  That driver needs to be off the road.  Instead, if the driver who has too much to drink does what society wants and pulls over to sleep, he faces a greater chance of being discovered and punished as a criminal, especially if one were to pull over in winter and need heat to stay alive while he sleeps.   Faced with that outcome, many a drunk driver will take the chance of getting home.  And, more people will be in accidents and more people will die.  It is the law of unintended consequences.

Now that the Supreme Court has spoken in Enriquez, our only hope is that the General Assembly overturns the Supreme Court’s decision through legislation.  I am not holding my breath.

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Virginia DUI Law: The Penalties for A DUI Conviction

As one of the most frequently charged offenses in the Commonwealth of Virginia, driving under the influence (DUI) is a very serious offense.  Since it is a class one misdemeanor, the Court may sentence a person found guilty of DUI to a variety of penalties, depending on the number of subsequent offenses and the amount of intoxication:

First Offense

  • Jail of up to 12 months
    • If BAC is .15 or greater, there is a mandatory jail sentence of 5 days
    • If BAC is more than .20, there is a mandatory jail sentence of 10 days
  • Fine between $250 and $2500 plus court costs, or
  • A combination of jail time and a fine
  • Required probation and participation in the Virginia Alcohol Safety Action Program (“ASAP”) as well as attendance at Victim Impact Panel
  • A loss of license for one year is required
    • If BAC was .15 or greater, one who is convicted must install an ignition interlock device before being able to get a restricted license

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history. The loss of license is required, as are the mandatory jail sentences for high BACs.

Second Offense (within 5 years of First Offense)

  • Jail between 1 month and 12 months, or
    • Mandatory minimum jail term of 20 days
    • If BAC is between .15 and .20, there is a mandatory jail sentence of and additional 10 days
    • If BAC is more than .20, there is a mandatory jail sentence of an additional 20 days
  • Fine between $500 and $2500 plus court costs, or
  • A combination of jail time and a fine
  • Required probation and participation in ASAP as well as attendance at Victim Impact Panel
  • A loss of license for three years is required
    • If BAC was .15 or greater, one who is convicted must install an ignition interlock device before being able to get a restricted license

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history. The loss of license is required, as are the mandatory jail sentences for high BACs.

Second Offense (between 5 and 10 years of First Offense)

  • Jail between 1 month and 12 months, or
    • Mandatory minimum jail term of 10 days
    • If BAC is between .15 and .20, there is a mandatory jail sentence of an additional 10 days.
    • If BAC is more than .20, there is a mandatory jail sentence of an additional 20 days.
  • Fine between $500 and $2500 plus court costs, or
  • A combination of jail time and a fine.
  • Required probation and participation in ASAP as well as attendance at Victim Impact Panel
  • A loss of license for three years is required.
    • If BAC was .15 or greater, one who is convicted must install an ignition interlock device before being able to get a restricted license.

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history. The loss of license is required, as are the mandatory jail sentences for high BACs.

Third Offense in a 10 year period

  • Class 6 Felony classification.
  • Jail of up to 5 years authorized.
    • Mandatory jail term of 90 days. (180 day mandatory jail term if all three offenses committed in a 5 year period).
  • Loss of license indefinitely
  • Court fine of $500-$2500 plus court costs.
  • Required probation and participation in ASAP as well as attendance at Victim Impact Panel
  • State may seize vehicle

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history. The loss of license is required, as are the mandatory jail sentences for high BACs.

Fourth Offense within 10 years

  • Class 6 Felony classification.
  • Jail of up to 5 years authorized.
  • Mandatory jail term of 12 months.
  • Loss of license indefinitely
  • Court fine of $1,000-$2500 plus court costs.
  • Required probation and participation in ASAP as well as attendance at Victim Impact Panel
  • State may seize vehicle

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history. The loss of license is required, as are the mandatory jail sentences for high BACs.

Offense by Person under Age 21 (BAC of .02-less than .08)

  • Loss of license for six months.
  • Fine of not more than $500 plus court costs.

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history.  Nevertheless, the severity of these consequences often necessitates proper legal representation.  If you find yourself facing a DUI charge,  it is well within your best interest to spend some time researching competent attorneys in your area.  As always, feel free to contact Westlake Legal for a free consultation.


Virginia DUI Law: The Effect of a DUI On Insurance and License

Q: What does a conviction for DUI do to my insurance and license? 

A:  One of the most frequent requests I receive from Traffic/DUI clients is to negotiate for fewer points on their driving record if they are found guilty.  In fact, fearing skyrocketing insurance payments, many clients offer to plea to a lesser offense in exchange for reduced points.   Unfortunately, points on a driving records are not assessed by the Court, so neither of these options are possible.  Points are assessed by the DMV, and depending or one’s driving record, a conviction for DUI could result in an administrative suspension of one’s license by the DMV. At a minimum, a person convicted of DUI will be assessed (-6) points on their driving record by the DMV. Such a conviction will remain on the driving record and can be considered when determining insurance rates for a period of 11 years after conviction. A 2004 study concluded that a DUI conviction costs up to $20,000 over the life of a convicted defendant in the form of increased insurance premiums and other fees.

When faced with the possibility of such a substantial financial burden, many people find the idea of hiring an attorney who will aggressively defend their rights much more appealing.  Should you ever find yourself in need of such services, please feel free to contact Westlake Legal Group to schedule a consultation.

Wrongfully Accused: VA Drivers Convicted of Charge That Is Not A Crime

In a turn of events that is particularly embarrassing for the Commonwealth, it has recently been reported that a number of Virginia localities have been ticketing, convicting, and fining motorists for a charge that, though alleged to be illegal, does not actually violate Virginia law.

In this instance, the law in question is Virginia Code § 46.2-707, titled “Operating uninsured motor vehicle without payment of fee; verification of insurance; false evidence of insurance.”  As its title suggests, this code makes it unlawful to operate an uninsured motor vehicle without having paid the $500 uninsured motorist fee that is required of those who chose not to purchase auto insurance.  The statute also prohibits anyone operating an uninsured vehicle from either providing false insurance information or from failing to provide proof that they have paid the uninsured motorist fee.   A conviction under this statute amounts to a Class 3 misdemeanor, the punishment for which is a $500 fine and the immediate suspension of one’s license.  Additionally,  a conviction for providing false insurance information when driving an uninsured car is labeled a “crime of moral turpitude” and can adversely affect future employment and military service.

What is particularly important about this statute–and what a surprisingly large number of police officers, prosecutors, and judges state-wide seemed to have missed–is that it only applies to drivers who are operating uninsured vehicles.  Therefore, in order to properly be charged under this statute, a driver would have to admit that his/her car was uninsured and that he/she failed to pay the uninsured motorist fee.  There is no crime if a driver does not have their insurance card on them or simply can not find it, or if they never make the above admissions.

Perhaps the most disturbing aspect of this new revelation though is not the fact that a few police agencies (4 counties worth to be exact) misinterpreted the statute and handed out illegal tickets.  As shocking and ultimately disappointing as this is, the issue that is of most concern to me is the fact that more than a few defense attorneys, prosecutors, and judges in the Commonwealth were complicit in the mistake.  The discovery that this charge has been wrongfully levied time and again without being properly challenged in court suggests a much larger issue with the justice system here in the Commonwealth.  While it might be conceivable to forgive such an error on the part of VA state troopers (thought I would not normally advocate such a move), to be equally as lenient with lawyers in the prosecutors offices or with the judges involved is inappropriate.  Just as I am charged with providing my clients with the best defense under the law, these men and women have taken an oath to uphold the laws of our country and to pursue the ends of justices at all times.  To think that a mistake as widespread and costly as this could be made on a routine basis is both extremely disappointing and terribly frustrating.  Going forward, I hope cases like this will both galvanize the Commonwealth to rectify its mistakes and prompt more citizens to educate themselves as to their basic rights.  In doing so, citizens and public servants alike will help to ensure that gross misinterpretations of law such as this do not reoccur.

Debate Over Traffic Tickets Leaves Virginia Drivers Between a Rock and a Hard Place

As was reported this week by Virginia Lawyers Weekly, widespread complaints about “speed traps” have sparked a heated debate between legislators over the division of funds generated by traffic fines in the Commonwealth.  Under the current system, local governments have the ability to pass their own traffic laws, as well as to set fines and punishments for the violation of these laws.  Though these local laws often parallel or mirror Virginia state statutes, the key difference between the two is one of financial allocation.  In cases where the driver is charged with a violation of the state statute, the monies generated in court are allocated to the state.  These funds assist with teacher’s retirement funds and school construction, among other things.  Considering that thousands of tickets are handed out in Virginia each weekend, the total revenue generated can easily creep into the tens of millions of dollars.

Conversely, if the offending driver is charged under the local version of the law–an option that is up to the discretion of the officer–the funds generated are given to the local government to dispose of as it pleases.  Local government officials contend that the funds are still primarily put towards improving education and to funding other local necessities, which helps to keep local real estate and property taxes from rising.  However,  many argue that allowing officers to charge drivers under the local ordinance ultimately disadvantages citizens because the practice creates an incentive for police departments to set up “speed traps” as a means generating revenue for the locality.

From a legal standpoint though, this debate raises some very interesting questions.  Primary among them is the issue of what is best for the client: being charged under the state statute or the local ordinance?  On the one hand, advocating for the removal of the local ordinance option (and using state statutes only) would seem beneficial to all in that it would remove the incentive for localities to over-use “speed traps.”  Such a move would have the potential to drastically reduce the number of tickets issued in the Commonwealth and to save drivers millions in court costs and fines each year.

On the other hand, a closer, more pragmatic look at the systems reveals that the local ordinance option actually has some significant benefits to Virginia drivers.  Chief among these advantages is that while local versions of state statutes can assess fines for traffic violations, the D.M.V. does not assign points to a driver’s record for the violation of local ordinances.  To a number of Virginia drivers, this is a much appreciated alternative, since they can simply pay the fine and put the incident behind them without having to worry about accruing points.

While I can see the merit of both sides of this argument, I am very curious to see how the rest of Virginia feels on this issue.  Would you prefer to oppose the ordinance option in hopes of reducing “speed traps”, or would you prefer to still have the option of avoiding points if you are charged?  The attorneys at Westlake Legal would love to know!

Establishing the Validity of Checkpoint Spots

Since the inception of the nation-wide “Click it or Ticket” program, law enforcement officers across the Commonwealth has been regularly conducting seat belt checkpoints to target drivers who do not buckle up.  In the last few months, I have received a few requests for further information/clarification as to what, exactly, the police are legally allowed to do, and what they are not, when it comes to roadblock stops.

To answer this question requires a bit more “legal jargon” than most blogs.  However, case law clearly establishes the requirements for checkpoints to be considered legal and valid.  The evolution of the arguments establishing the legality of certain types of checkpoints  has evolved, in part, as follows:

The primary case dealing with the issue of checkpoints is Michigan Department of State Police v. SitzHere, in 1990, the U.S. Supreme Court evaluated the constitutionality of a Michigan highway sobriety checkpoint program. In this instance, the checkpoint involved brief stops of motorists so that police officers could detect signs of intoxication and remove impaired drivers from the road.  The police had no reason to suspect any of the drivers of any wrong doing prior to stopping them.  Nonetheless, motorists who exhibited signs of intoxication were diverted for a license and registration check and, if warranted, further sobriety tests.  The Supreme Court found that this checkpoint program was clearly aimed at reducing the immediate hazard posed by the presence of drunk drivers on the highways, and there was an obvious connection between the imperative of highway safety and the law enforcement practice at issue. The gravity of the drunk driving problem and the magnitude of the State’s interest in getting drunk drivers off the road weighed heavily in their determination that the program was constitutional.  However, to protect drivers’ rights under the Fourth Amendment, the Supreme Court underscored that to be legal, a roadblock had to be carried out in accordance with a pre-published plan where officers acted without exercising individual discretion.

In the 1979 case of Delaware v.Prouse, the Supreme Court further clarified the difference between a legal checkpoint-like stop and the illegal, warrant-less detention of a motorist.   In this case, the Court held as invalid a discretionary, suspicion-less stop in which an officer stopped a vehicle simply to perform a check of the motorist’s driver’s license and registration. The officer’s conduct in that case was deemed unconstitutional primarily on account of his exercise of “standardless and unconstrained discretion.”  However, the Court nonetheless acknowledged the States’ “vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles, that these vehicles are fit for safe operation, and hence that licensing, registration, and vehicle inspection requirements are being observed.”  Accordingly, the Court suggested that “questioning of all oncoming traffic at roadblock-type stops” would be a lawful means of serving this interest in highway safety.

Most importantly, the Supreme Court further indicated in Prouse that it considered the purposes of such a hypothetical roadblock to be distinct from a general purpose of investigating crime.  This case itself reveals a difference in the Fourth Amendment significance of highway safety interests and the general interest in crime control.

Then, in the 2000 case of City of Indianapolis v. Edmond, the Supreme Court held that “[w]hen law enforcement authorities pursue primarily general crime control purposes at checkpoints . . . stops can only be justified by some quantum of individualized suspicion.”  In support of this opinion, the court stated the following:

“We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. Rather, our checkpoint cases have recognized only limited exceptions to the general rule that a seizure must be accompanied by some measure of individualized suspicion. We suggested in Prouse that we would not credit the “general interest in crime control” as justification for a regime of suspicionless stops. 440 U.S. at 659, n. 18. Consistent with this suggestion, each of the checkpoint programs that we have approved was designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety. Because the primary purpose of the Indianapolis narcotics checkpoint program is to uncover evidence of ordinary criminal wrongdoing, the program contravenes the Fourth Amendment.”

Moreover, and very specifically, the Supreme Court stated that the narcotics-interdiction purpose of the checkpoints in this case could not be rationalized in terms of a highway safety concern similar to the one present in Sitz.

“The detection and punishment of almost any criminal offense serves broadly the safety of the community, and our streets would no doubt be safer but for the scourge of illegal drugs. Only with respect to a smaller class of offenses, however, is society confronted with the type of immediate, vehicle-bound threat to life and limb that the sobriety checkpoint in Sitz was designed to eliminate.”

The end result of this analysis is that local law enforcement agencies across the country are attempting to, and are, conducting widespread abuses of the Fourth Amendment by conducting road blocks, ostensibly for Prouse purposes of public safety, but then adding a general crime component to those stops.  For example, while stopping they may have a drug dog sniff all cars.  This additional action, in my view, is clearly illegal.  There is no need to use a dog to meet the requirements of a registration check.  Moreover, even if a dog sniffs and finds an odor of narcotics, there is not sufficient evidence of individualized suspicion to warrant a stop.  For example, the officer cannot articulate a suspicion that the driver is in possession of narcotics, only that at some time narcotics were used in the car.

Unfortunately, bad lawyering sometimes paints the wrong picture when it comes to stops of this nature.  In Wright v. State, from the Court of Appeals of VA, a panel found that since a proper stop was made at a registration checkpoint, a subsequent search related after a drug dog alerted during the time of the stop was valid.  The lawyer never argued that component of Prouse that is essential: the sniff does not give individualized suspicion of wrongdoing.  So, given this dichotomy, there will be battles in the future.

Personally I have had success defending a citation issued after a checkpoint stop because the official plan for the checkpoint authorized it to take place on road A at the intersection of Road B.  However, the actual checkpoint was conducted on Road B and the intersection of Road A.  As a result, I argued that all of the citations/violations issued as a result of the checkpoint were not enforceable since the spot was not in conformance with the established procedure.

Individual success stories aside, the real problem with checkpoints is that the people of Virginia do not protest them enough.  Thousands of tickets are issued at checkpoints each year and each represents an individual case.  Therefore, to drum up enough public unrest so as to actually challenge the validity of the checkpoint system requires that the majority of these citations are challenged in court.  Unfortunately, the financial burden of defending oneself and a general fear of going in to court prevents most people from doing so.  Passively encouraged by this lack of opposition, checkpoints continue to be used throughout the Commonwealth, in my opinion, for general crime enforcement while disguised as a registration check.  The wolves are truly in sheep’s clothing in this sense.

Should you find yourself a victim of this particular law enforcement tactic, at least now you know that there are attorneys out there who can, and will, aggressively challenge checkpoint-driven violations.  The attorneys at Westlake Legal are always available for consultation in this matter.

Commuters Beware: D.C./MD “Anti-texting” Laws Could Snare VA Drivers

If you are a Virginia resident who regularly commutes to D.C. or Maryland, this post is for you.  According to a recent Washington Post report, the State of Maryland has raised the stakes when it comes to texting while driving.  In accordance new legislation, the act of reading or sending a text message while driving now constitutes a primary offense, thereby giving police officers the ability to pull over anyone caught texting at the wheel.

Though texting while driving is currently a  secondary offense in the Commonwealth, it is important for Virginia drivers to realize that other states do not take the same stance on the issue.  In fact, 31 states and D.C. now consider the act of texting behind the wheel a primary offense worthy of a traffic stop and a hefty fine.  Given this discrepancy, it is important for VA drivers to keep their phones in their pockets if they want to keep their cash in their wallets after crossing state lines.

Understanding a D.U.I Defense

The most charged crimes in Virginia are reckless driving and DUI. Although no one should drive if they are under the influence, certain organizations and local governments have made a concerted effort to arrest and charge people for merely having had one or two drinks and then driving. Unfortunately, most people do not know that it is possible to successfully defend against the charge of DUI. To do so, one needs to understand the basic physiology of alcohol consumption and the weaknesses of the techonology often used by prosecutors to prove being under the influence.

In 2009, the Commonwealth switched from using the Intoxilyzer 5000 to using the EC/IR II for breath testing. Many in the defense community cynically argue that this was done to aid in convictions as the EC/IR II does not reflect differences in types of alcohol (ethyl- v. methyl-) as well as its predecessor. Breath test machines also don’t differentiate between genders, account for individual body types, or assess actual body temperature. Most importantly, breath test machines assume that individuals have the same breath to blood ratio, or lung capacity.

 
Because everyone is different, the failure of machines to account for differences in temperature, the amount of body fat or water in a person, and lung capacity means that all DUI convictions based on the numerical results of a breath test machine are based on inaccurate test results. 


At Westlake Legal Group, we have been able to demonstrate to juries that breath test machines are inaccurate. In fact, we have shown that machine results as high as .30 were inaccurate and our clients have been properly found not guilty. Every case is, of course, different and results cannot be guaranteed. However, if you, a friend, or family member, are faced with such a charge, know that we have the experience to defend you.

Of course, the real issue of discussion is whether DUI laws are too extreme. Is it possible to properly regulate alcohol and driving without having the pendulum swing to the extreme? Thoughts?
If you wish to learn more about our approach to criminal defense, feel free to contact Westlake Legal for more information.

Federal Court Defends 4th Amendment Rights of Virginia Motorists

In what should be seen as a major victory for Virginia motorists, the Federal 4th Circuit Court of Appeals upheld the suppression of drugs found in the defendant’s car during what should have been a routine traffic stop.  In this particular case, the defendant was originally pulled over by trooper Christopher Conner for allegedly tailgating another motorist on I-95.  However, rather than simply issuing a ticket for the tailgating offense, the Trooper proceeded to question the man for more than 10 minutes as to whether or not he had any illegal substances in his car, called for backup, and then began questioning the driver once again as to the subject of drugs.  Eventually, after being subjected to a barrage of questions, the defendant consented to a vehicle search.  It was this search that lead to the discovery of the drugs for the possession of which the defendant was charged.

Ultimately, the defendant’s counsel filed a motion to prevent the submission of these drugs into evidence on the grounds that the officer’s harassment lead to an involuntary search.  The 4th Circuit upheld this motion after concluding that the officer’s actions went beyond the parameters of a permissible search and seizure as stated in the Fourth Amendment and further outlined in Terry v. Ohio.

As was decided in Terry v. Ohio states, a search and seizure such as this is only permissible when “the officer’s action was justified at [the inception of the traffic stop]” and “the officer’s subsequent actions were reasonably related in scope to the circumstances that justified the stop.” In other words, the officer must act in accordance with the standard procedure associated with the purpose of the stop.  Without some evidence to justify a “reasonable suspicion of criminal activity,” the officer can not simply abandon the traffic infraction purpose of the stop to investigate another possible crime.  Since it was determined that this was, in fact, what took place during the stop in question, the Court ruled that the officer’s actions qualified as a violation of the driver’s Fourth Amendment rights.

This case is of tremendous relevance to Virginia drivers because the Court’s decision further protects citizens’ Fourth Amendment right to freedom from unreasonable search and seizure.  Additionally, this decision serves to send a firm reminder to police officers in the Commonwealth that “a traffic stop must be reasonable both in its scope and duration.”  To pull an individual over for the purpose of conducting an investigative probe into whether or not they are in violation of some other law is both unjust and illegal.

For more information on this case, please feel free to read the Court’s decision in full here.

The Truth Behind “Implied Consent”: Roadside Sobriety Tests Explained

NOTE: The purpose of this posting is to discuss the implications of Virginia statute on drivers confronted with a roadside breath test or a roadside sobriety field test.  Different considerations come in to play if you have already been arrested and are asked to take breath test at the police station.  Hopefully, by acting responsibly and remaining knowledgeable as to your rights, you will never find yourself in such either situation.

As a defense attorney who deals with multiple DUIs each month, one of the most frequent — and, to me, most upsetting — comments I hear from clients is, “I didn’t want to take a breathalyzer, but the cop told me I had to because Virginia has an ‘implied consent’ law.  I didn’t know that I had the right to refuse it without getting arrested.”

Whether it be something they learned in Driver’s Ed or something they just heard from friends, it seems that most Virginia drivers are under the impression that if a cop asks you to take a breath test or to perform a sobriety field test, you have to comply… or else be arrested on the spot.  While this assumption is simply not true, many people are never properly informed of their rights until they are sitting in my office, preparing to fight the DUI they have already been charged with.  So, for the sake of getting it right before it is too late, let’s take a minute to examine Virginia’s “Implied Consent” law and the implications it has on drivers statewide.

First things first: The Commonwealth of Virginia does have what is commonly referred to as an “implied consent law.”  However, it is probably not what many of you think it is.  In Virginia, the “implied consent law” is officially known as Code § 18.2-268.2 and is stated as follows:

“Any person, whether licensed by Virginia or not, who operates a motor vehicle upon a highway, as defined in § 46.2-100, in the Commonwealth shall be deemed thereby, as a condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, if he is arrested for violation of § 18.2-26618.2-266.1, or subsection B of § 18.2-272 or of a similar ordinance within three hours of the alleged offense.”

What is interesting and important about this particular code is that it is strictly limited to those who have already been arrested for driving while intoxicated (see bold section). Put even more simply, you are never nuder any obligation to take a roadside breath test (PBT) or to perform a roadside field test.  The above cited statute is expressly limited to individuals who have already been arrested and taken back to the police station, which is a far cry from the side of the road.  In fact, contrary to what many police officers will indicate after they have pulled you over, Virginia law actually protects your right to refuse a breath test at the scene of a traffic stop. This right is affirmed in Virginia Code § 18.2-267, where it states:

“Any person who has been stopped by a police officer of the Commonwealth, or of any county, city or town, or by any member of a sheriff’s department and is suspected by such officer to be guilty of a violation of § 18.2-266 or § 18.2-266.1, shall have the right to refuse to permit his breath to be so analyzed, and his failure to permit such analysis shall not be evidence in any prosecution under § 18.2-266 or § 18.2-266.1.”

In other words, not only can you refuse a roadside breath test, but this refusal is not, by itself, grounds on which you can be arrested and your refusal can not be used against you should you end up in court.  A good way to think of it is like this: the police need probable cause to place anyone under arrest.  While a roadside breath test is not admissible in court, it does provide sufficient evidence to establish probable cause.  So, when a cop asks you to agree to a roadside breath test, they are really just looking for a way to easily establish probable cause.  The logic behind your right to refuse such a test is similar to logic that justifies pleading the 5th–you can never be forced to incriminate yourself or to implicate yourself in any crime.

So what does this mean to the average Virginian?  At the very least, having this information presented to you should reinforce the importance of becoming knowledgeable as to your rights and learning how they apply to everyday situations.  More importantly, you should know how to exercise those rights.  Hopefully, you will never put yourself in a situation where you will have to put this knowledge to use, but at the very least you can help put an end to the wide-spread rumors surrounding Virginia’s Implied Consent law.