What is “Implied Consent” and how does it work in your Virginia DUI case?

If you were charged with a Virginia DUI and your Blood Alcohol Concentration (BAC) was obtained by either a breath or blood test, you need to learn about Virginia’s Implied Consent laws.  That’s because your BAC will be a vital piece of evidence used to prove that you were drunk driving.

For your BAC to be admitted, however, the government must prove that it complied with Virginia Implied Consent.    

Under Virginia law, by “operating” a vehicle on a “public highway,” you have provided “Implied Consent” to have your BAC tested.  Specifically, Virginia Code Section 18.2-268.2 states:

A. 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.

B. Any person so arrested for a violation of clause (i) or (ii) of § 18.2-266 or both, § 18.2-266.1 or subsection B of § 18.2-272 or of a similar ordinance shall submit to a breath test. If the breath test is unavailable or the person is physically unable to submit to the breath test, a blood test shall be given. The accused shall, prior to administration of the test, be advised by the person administering the test that he has the right to observe the process of analysis and to see the blood-alcohol reading on the equipment used to perform the breath test. If the equipment automatically produces a written printout of the breath test result, the printout, or a copy, shall be given to the accused.

C. A person, after having been arrested for a violation of clause (iii), (iv), or (v) of § 18.2-266 or § 18.2-266.1 or subsection B of § 18.2-272or of a similar ordinance, may be required to submit to a blood test to determine the drug or both drug and alcohol content of his blood. When a person, after having been arrested for a violation of § 18.2-266 (i) or (ii) or both, submits to a breath test in accordance with subsection B or refuses to take or is incapable of taking such a breath test, he may be required to submit to tests to determine the drug or both drug and alcohol content of his blood if the law-enforcement officer has reasonable cause to believe the person was driving under the influence of any drug or combination of drugs, or the combined influence of alcohol and drugs.

If you are found to have unlawfully refused to submit to a breath or blood test, you will be charged with Civil Refusal as a separate charge. (Read more about Civil Refusal and its consequences here).

Implied Consent exists because the Virginia General Assembly wanted a way to compel suspects of DUI to submit to BAC testing, thereby, making DUI charges easier to prove. This is despite the United States Constitution’s 5th Amendment Right against Self-Incrimination.  Time and time again, Virginia Courts have upheld Virginia’s Implied Consent laws as Constitutional.

That said, Implied Consent raises several important questions for you and your attorney to discuss when considering your DUI charge.  If the government failes to comply with Implied Consent Rules, it’s possible that your BAC may be inadmissible in Court.  So, here’s a few questions to ask:

What does Operation mean?

Virginia courts define “operating” a vehicle more broadly than simply driving.  In Sarafin v. Commonwealth, 288 Va. 320, 327, 764 S.E.2d 71, 75 (2014), the Virginia Supreme Court found a defendant was operating his vehicle when he was parked in his own driveway, behind the steering wheel, simply because the key was in the ignition. (Of note, in Sarafin, the Court also found that you can be guilty of DUI when in your own private driveway.)

Were you on a Public Highway?

Again, Virginia courts have defined the term “public highway,” more broadly that it would appear on its face. While each case is different, even if privately owned, the courts have essentially found that any road way with unfettered public access was a public highway.

The case of Kim v. Commonwealth, 293 Va. 304 (2017) is important to understand the proper analysis, as the Court considered several previous cases in this opinion. Ultimately, in Kim, the Court found that an apartment complex parking lot that had “No Trespassing” signs at every entry point was not a public highway.  However, it highlighted that many other cases involving apartment complex parking lots were public highways for purposes of Implied Consent.

Were you “arrested” within “3 hours” of driving?

Arbitrarily, Virginia Implied Consent requires an arrest within 3 hours.  You should think of this as a statute of limitations that requires an arrest within this time period for Implied Consent to require a BAC test.  See Thomas v. Town of Marion, 226 Va. 251 (1983).

In considering whether law enforcement met this “three hour rule,” some cases present the issue of when an actual “arrest” occurred. In Bristol v. Commonwealth, 272 Va. 568 (2006), the court found that the prosecution didn’t meet Implied Consent’s three hour rule when law enforcement told the defendant he was “under arrest” at the hospital, following a car accident, but did nothing to effectuate that arrest. 

If read plainly, Virginia’s Implied Consent statute says that, for the rule to apply, you must have been arrested for a DUI or related statute.  See also Roseborough v. Commonwealth, 281 Va. 233 (2011).   If you were arrested for a non-DUI related offense, and then compelled to have your BAC tested, make sure to talk to your attorney about this issue.

If you were compelled to take a blood test, was a breath test unavailable or were you physically unable to take the breath test?

Virginia Code Section 18.2-268.2 makes it clear that the General Assembly prefers compelling a breath test, over a blood test.  This makes sense as a blood test is a much more intrusive test. 

Given that, there’s an argument that you should only be subjected to a blood draw in very limited circumstances: you were “physically unable,” to take a breath test or a breath test was, “unavailable.” 

Two cases that discuss physical inability are Pearson v. Com., 43 Va.App. 317 (2004)  and Wolfe v. Commonwealth, 67 Va.App. 97 (2016).  Indeed, they dealt with whether repeated burping ended up defining someone as physically unable to take a breath test.

The case of Herring v. Com., 28 Va.App. 588 (1998) found that a breath test was “unavailable” when the machine at the police station was not working, and law enforcement was not required to call around to other facilities to determine if there were functioning machines nearby.  

Still have questions?

Make sure to check out our Virginia DUI Practice Page where we’ve answered many other questions you likely have.  James Abrenio is a Fairfax-Based Personal Injury & Criminal Defense attorney who practices throughout Northern Virginia. You can learn more about James Abrenio, some of our Prior Results, and Read Our Reviews.  Make sure to contact us at Ph. 703-570-4180 for your Free Consultation.