By now, you’re probably aware that Tiger Woods has been charged with a DUI in Florida. Apparently, he was driving at a high rate of speed, struck the rear of a vehicle in front of him, and caused his vehicle to flip on its side. Luckily, there appear to be no serious injuries.
While Tiger blew a .00 BAC at the scene of the crash, he refused to take a urinalysis to test his blood stream for drugs. Further, law enforcement indicated that he was “sweating profusely” and his movement was “lethargic and slow,” while being interviewed. And based upon that, he has been charged with DUI and refusal.
Of course, it’s too early to tell what will happen with Tiger’s case. However, this crash does highlight a few issues that we think Virginia drivers should consider.
You can get a DUI for being impaired by drugs too.
Under, Virginia Code Section 18.2-266, you can be guilty of a DUI for both drugs and alcohol. For alcohol, there is an inference of intoxication if you have a BAC of .08 or more at the time of driving. When it comes to drugs, the Code provides for specific levels in your blood for cocaine and other specific drugs. However, the true question is whether the alcohol in your system caused you to be “impaired,” so even lower levels can lead to a conviction.
A car crash can cause complications when law enforcement use “other signs of intoxication,” to prove their case.
To be clear, you can still be convicted of a DUI in the absence of drugs or alcohol test results. Law enforcement uses other means of investigation, to include asking questions to see if the suspect admits to consuming drugs or alcohol, looking for drugs or alcohol in the suspect’s possession at the scene of the crash, and also watching for signs of impairment.
Typically, officers will conduct field sobriety tests, where they will run the suspect through physical tests. These tests can include having them walk in a straight line, stand on one leg, and recite the alphabet. The officers will then evaluate their performance on these exams. They’ll look for signs such as the suspect swaying, falling, moving off balance and responding slowly.
When it comes to car crashes, however, the reliability of theses tests can be undercut. That’s because when someone is involved in a serious crash and suffered injuries, to include a head injury, many of the symptoms possible may similar to signs of a drunk person. Things like slurred speech, difficulty understanding directions, and imbalance are all classic signs of a head injury. So, when law enforcement is investigating a possible drunk driver after a crash, they should account for the realities they may face.
When can you refuse a breath or blood test.
To understand this, first we need to distinguish what kinds of tests for drugs and alcohol law enforcement use.
When on scene, officers will often times employ a preliminary breath test (PBT) to determine the amount of alcohol in one’s system. We’ve written about the PBT in detail before.
Under Virginia Code Section 18.2-267, you have a right to refuse the PBT. And the fact that you refuse it cannot be used to prove that you were guilty of DUI. Further, the PBT results (even if you take them) can’t be used against you at trial. However, if you challenge probable cause for your arrest, the PBT results, or the fact that you refused to take the test, can be considered by the Court as to whether LEO had sufficient cause to arrest you. See also Jones v. Commonwealth, 279 Va. 52 (2010).
The formal breath or blood test.
Assuming there is probable cause to arrest someone for DUI (whether for drugs or alcohol), Virginia Code Section 18.2-268.3 requires you to submit to a formal breath or blood test for drugs or alcohol, or you face penalties. These tests are typically requested of you back at the station after you have been arrested. Should you refuse, you will be charged with civil refusal for the first offense, and it can be a crime for a second offense within 10 years. What’s more, if you are convicted of civil refusal, under Virginia Code Section 268.10, evidence of that conviction can be used to explain the absence of such test results, but is not evidence of guilt.
The 3-hour rule explained.
While likely not an issue in Tiger’s case, one other issue that can arise from DUI crash investigations is the “three hour rule” under Virginia Code Section 18.2-268.2. Under that Section, for your formal blood or breath test to be admissible, you must have been arrested within three hours of the crash. This issue complicates prosecutions in two common scenarios.
The first is a single car crash where there were no witnesses to confirm when the crash happened, thus, when the suspect was actually driving. And law enforcement can’t prove when the suspect was driving, they can’t establish that the suspect was arrested within three hours. Therefore, their blood/breath test is arguably not admissible.
The second scenario arises when there’s a question as to whether someone was actually “arrested.” This often comes about when the suspect is transported to the hospital where law enforcement later makes contact with them. And, often simply because of the required medical treatment, the officer does not make a formal arrest in the traditional sense, ie handcuffing the suspect and transporting them to jail. While the courts generally try to give law enforcement leeway, there can be an argument that short of that formal arrest, that no arrest occurred or that it occurred outside of three hours. Therefore, any blood/breath results are inadmissible. Of course every case is different.
Conclusion.
Of course, Tiger’s case raises many other questions not addressed here. But these are some of the major issues that would be presented if his crash occurred in Virginia. If you drive in Virginia, do yourself a favor, and call an Uber if you’ve had any drugs or alcohol.
Still have questions?
Make sure to check out our Personal Injury, Medical Malpractice & Criminal Defense Practice Pages where we’ve answered many other questions you likely have. Abrenio Law is a Personal Injury & Criminal Defense Law Firm representing individuals in Northern Virginia and throughout the Commonwealth. You can learn more about Abrenio Law by visiting our About Us page. You can also read about some of our Prior Results, and Read Our Reviews. Make sure to contact us at Ph. 703-570-4180 for your Free Consultation.