DWI Legal Primer

18.2-266 Driving motor vehicle, engine, etc. while intoxicated, etc.

It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article, (ii) while such person is under the influence of alcohol, (iii) while such person is 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 his ability to drive or operate any motor vehicle, engine or train safely, (iv) while such person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, or (v) while such person has a blood concentration of any of the following substances at a level that is equal to or greater than: (a) 0.02 milligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c) 0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood. A charge alleging a violation of this section shall support a conviction under clauses (i), (ii), (iii), (iv), or (v).    

Important cases

–        The Prosecutor referred to the Defendant as an “alcoholic” and said he could “throw quite a few drinks” during his cross examination of a witness. Defense counsel objected, and the objection was sustained. The trial court stated it ignored those statements and convicted on other grounds. The trial court also denied the Defendant’s motion for a mistrial. On appeal, the court rated the statements were improper, but there was no error in denying a mistrial, citing no prejudice to the Defendant. The appeals court confirmed the conviction. Thurston v. City of Lynchburg.

–        It is ok for a court to deny a confusing DWI jury instruction. In this case, the instruction would have told the jury the Defendant might be guilty of reckless and not be guilty of DWI. The Defendant was not charged with Reckless Driving and the mention of an uncharged crime would create confusion. Mawyer v. Commonwealth.

–        A Defendant cannot be convicted of both DWI and Reckless Driving where the behavior was connected and related. Harris v. City of Va Beach.

–        At trial for a DWI 4th, the trial court is not an error to refuse a bifurcation. Nelson v. Commonwealth.

–        DWI and involuntary manslaughter have different elements. Therefore, a person can be tried for both crimes, since the issue of intoxication isn’t the only factor in an involuntary manslaughter conviction.

–        It is improper for a court or prosecutor to amend a charge to DWI 2nd on appeal. In this case the defendant was charged with a DWI 2nd, the trial court reduced it to a DWI 1st and then circuit court amended on appeal. This was held to be improper.

–        It is ok for a jury to give any fine between $1000 and $2500 after conviction for DWI 4th.

–        In an involuntary manslaughter case, the amount of the Defendant intoxication is relevant. Essex v. Commonwealth.

 

Cases that show when sufficient evidence exists to support a DWI conviction

–        A conviction was supported when the evidence showed the Defendant admitted to 2 drinks, drove off the road, then drove into a phone pole when the trooper initiated a traffic stop. Additionally, the Defendant was unsteady. Daughty v. Commonwealth.

–        A conviction was supported when the evidence showed the Defendant rear ended a bus that was stopped at a light, lied about being the driver, had an odor of alcohol and failed field sobriety tests. Holt v. City of Richmond.

–        A conviction was supported when the evidence showed the Defendant was asleep in a vehicle, the car was off but the key was in the ignition. The key was in the on position. Rivers v. Commonwealth.

–        A conviction was supported when the evidence showed the Defendant admitted to drinking and lacked coordination. Additionally, the Defendant’s appearance was proof. Lemon v. Commonwealth.  

–        A conviction was supported when the evidence showed the Defendant showed that the Defendant stopped in the middle of the road and started to clean his car. The defendant’s walk was staggered; he smelled like booze and failed several field sobriety tests.

–        A conviction was supported when the Defendant was weaving while driving, admitted to drinking and failed three field tests. Lee v. Commonwealth.

–        Even without lab tests to prove a specific BAC, other evidence may be sufficient to support a DWI conviction.

–        While use of paint may impact BAC, the trial judge can still find someone guilty of DWI if other evidence exists. Newman v. Commonwealth.

–        A conviction was supported when the evidence shows that Defendant had taken pills, drove slowly, and appeared disoriented when talking to the police. Taylor v. Commonwealth.

–        Defendant switches seats with driver. However the car was still on. This is enough to support a DWI conviction Rix v. Commonwealth.

–        A conviction was supported when the evidence showed that witnesses saw Defendant in front seat right after a crash on Defendant attempted to hit and run. Rix v. Commonwealth.

–        Cases where evidence wasn’t enough to prove DWI

–        Where Defendant was drunk on hour after driving, the Commonwealth has to prove there was no alcohol consumed during that interval. Coffey v. Commonwealth.

–        The government has to link behavior to the use of alcohol or other drugs if they cannot a person is not guilty of DWI. Clemmer v. Commonwealth.

Cases dealing with unusual intoxication evidence

–        Where there is no breath or blood sheet other factors have to be reviewed. Moore v. Commonwealth.

–        An off-duty cop has the same rights to deal with suspects as an ordinary citizen. Wilson v. Commonwealth.

–        The Defendant didn’t talk to the police until an hour after driving. However, he did admit to drinking six beers before driving and nothing after the accident. Wheeling v. City of Roanoke.

–        Defendant said to officer he didn’t drink after accident. But he testified at trial he did drink after the accident. A jury can evaluate this conflict and determine credibility of both. Wheeling v. Commonwealth.

–        Weaving within the lane may be enough to support a stop under the right circumstances. Neal v. Commonwealth.

–        Trial court doesn’t have to believe that weaving was caused by an anxiety attack. Cousins v. Commonwealth.

 

Cases related to DWI Blood and Breath Testing

–        A person can be convicted of DWI even if no scientific test is conducted. Stevens v. Commonwealth.

–        A blood test is not an automatic right. U.S. v. Gholson.

–        The DWI rules for required testing don’t apply if arrest was for drunk in public. Wilson v. Commonwealth.

–        A judge can allow evidence that the Defendant refused to take a breath test. Admission not violate of 5th amendment. Acuna v. Commonwealth.

–        A cop doesn’t have to take blood from a passed out defendant. Oliver v. Commonwealth.

–        Although it is allowed. Oliver.

–        The test must be related to consumption of alcohol before or during driving. Davis v. Commonwealth.

–        Where chain of custody is sold the breath or blood sheet should be admitted. The court must then weigh credibility and give it whatever weight it seems is appropriate.

 

Cases involving DWI Evidence

–        Where the facts allowed a cop to make an arrest for open container, intoxication is irrelevant. US v. Washington

–        The court can use a person’s prior driving record at sentencing. Ngomondjamu v. Commonwealth.

–        The results of a preliminary breath test cannot be used during guilt/innocence portion of a trial, but may be considered during suppression. Neatrour v. Commonwealth.

–        Minor issues or irregularities with the form on the blood certificate can be overlooked provided there has been substantial compliance. Williams v. Commonwealth.

–        Where the government doesn’t comply with 19.2-187 and provide the Defendant a copy of the breath test any conviction is improper. Dolson v. Commonwealth.

–        The breath sheet must be filed at least 7 days prior to trial. Cephas v. Commonwealth.

–        Where officer made an invalid arrest implied consent did not apply. When the officer read implied consent it negated the purpose of that law. It was error to allow the subsequent breath test result into evidence. Roseborough v. Commonwealth.

–        In order to admit a breath sheet witnesses need to be present. Grant v. Commonwealth.

–        Checkpoints are ok if officer in charge has no discretion. Crouch v. Commonwealth.

–        It violated a Defendant’s rights where the court inferred guilt from Defendant’s silence when advised of implied consent law. US v. Hagedorn.

–        The Prosecutor can mention that a person refused to take a field sobriety test. Farmer v. Commonwealth.

–        An arrest must be made and proven within 3 hours for a subsequent breath test to be admissible. Overbee v. Commonwealth.

–        The arrest must be before the test. Sprouse v. Commonwealth.

 

Cases about DWI-Drugs

–        The drugs have to be self-administered. A person driving while intoxicated is not guilty if they were administered at a hospital.

–        The statue makes it illegal to drive while influenced by any drug that impairs a person’s ability to drive Jackson v. Commonwealth.

–        The ambient/sleep walking defense may be accepted or rejected depending on the facts. Bradley v. Commonwealth.

 

Cases defining “Intoxication”

 

–        If someone drinks after driving the subsequent breath test is invalid. There is no way to show what the BAC at the time was.

–        There is an allowable presumption that BAC at the time of driving is the same BAC that existed when driving. Kehl v. Commonwealth.

–        Under the influence means your manner, disposition, speech, muscle movement, general appearance or behavior are impacted. Moore v. Commonwealth.

–        Government only has to show ability to drive is reduced. They don’t have to show that the driver was unsafe. Owens v. Commonwealth.

Cases that Define the Elements of the Crime

–        Driving a car means putting it in motion. Gallagher v. Commonwealth.

–        But the statue says operate, which is a lesser requirement. Lyons v. Petersburg.

–        You can be found guilty even if the car is inoperable. For example, its stuck in the mud or the transmission won’t work. Nicolls v. Commonwealth.

–        Under certain circumstances a conviction is valid for driving that takes place on private roads. Valentine v. Brunswick.

–        One circumstance where a private roadway may be considered is a parking lot. A DWI can take place in a parking lot if the lot meets certain criteria. Gray v. Commonwealth.

–        Driver wasn’t operating the vehicle where the key wasn’t in the on position. Stevenson v. Commonwealth.

 

Cases Related Generally to DWI Law

 

–        You cannot be convicted in state and federal court for DWI. It needs to be one or the other.

–        Miranda warnings are not typically applicable to traffic cases and DWI cases.

18.2-266.1 Persons under age 21 driving after illegally consuming alcohol

A. It shall be unlawful for any person under the age of 21 to operate any motor vehicle after illegally consuming alcohol. Any such person with a blood alcohol concentration of 0.02 percent or more by weight by volume or 0.02 grams or more per 210 liters of breath but less than 0.08 by weight by volume or less than 0.08 grams per 210 liters of breath as indicated by a chemical test administered as provided in this article shall be in violation of this section.

B. A violation of this section is a Class 1 misdemeanor. Punishment shall include (i) forfeiture of such person’s license to operate a motor vehicle for a period of one year from the date of conviction and (ii) a mandatory minimum fine of $500 or performance of a mandatory minimum of 50 hours of community service. This suspension period shall be in addition to the suspension period provided under § 46.2-391.2. The penalties and license forfeiture provisions set forth in §§ 16.1-278.918.2-270 and 18.2-271 shall not apply to a violation of this section. Any person convicted of a violation of this section shall be eligible to attend an Alcohol Safety Action Program under the provisions of § 18.2-271.1 and may, in the discretion of the court, be issued a restricted license during the term of license suspension.

C. Notwithstanding §§ 16.1-278.8 and 16.1-278.9, upon adjudicating a juvenile delinquent based upon a violation of this section, the juvenile and domestic relations district court shall order disposition as provided in subsection B.

266.1 is sometimes referred to as a baby DWI. It is a punishment for people who are under age 21 who are caught driving after they have been drinking. Because the legal drinking age is 21, the standard for conviction is only a .02 BAC as opposed to a .08 BAC for a standard DUI. While the punishment for this code is similar to that of a DWI (ASAP, fine, loss of license, etc.) the major advantage is that it is not technically a DUI.

18.2-267 Preliminary Analysis of breath to determine alcoholic content of blood

A. Any person who is suspected of a violation of § 18.2-26618.2-266.1, subsection B of § 18.2-272, or a similar ordinance shall be entitled, if such equipment is available, to have his breath analyzed to determine the probable alcoholic content of his blood. The person shall also be entitled, upon request, to observe the process of analysis and to see the blood-alcohol reading on the equipment used to perform the breath test. His breath may be analyzed by any police officer of the Commonwealth, or of any county, city or town, or by any member of a sheriff’s department in the normal discharge of his duties.

B. The Department of Forensic Science shall determine the proper method and equipment to be used in analyzing breath samples taken pursuant to this section and shall advise the respective police and sheriff’s departments of the same.

C. 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 an offense listed in subsection A, 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 for an offense listed in subsection A.

D. Whenever the breath sample analysis indicates that alcohol is present in the person’s blood, the officer may charge the person with a violation of an offense listed in subsection A. The person so charged shall then be subject to the provisions of §§ 18.2-268.1 through 18.2-268.12, or of a similar ordinance.

E. The results of the breath analysis shall not be admitted into evidence in any prosecution for an offense listed in subsection A, the purpose of this section being to permit a preliminary analysis of the alcoholic content of the blood of a person suspected of having committed an offense listed in subsection A.

F. Police officers or members of any sheriff’s department shall, upon stopping any person suspected of having committed an offense listed in subsection A, advise the person of his rights under the provisions of this section.

G. Nothing in this section shall be construed as limiting the provisions of §§ 18.2-268.1 through 18.2-268.12.

A preliminary breath test (PBT) is a machine used to determine a person’s BAC. It is a small, mobile machine officers carry with them. A PBT is typically administered on the side of the road as part of an officer’s field sobriety tests. The machines are less sophisticated than the actual machines used of the station. They also do not have the safeguards and requirements of the larger official machines. For these reasons the test is only designed to give an officer an idea whether or not to make an arrest. The PBT result is not evidence to be used against a driver at trial. However, the result can be used to justify why an officer made an arrest.

Important PBT Cases

It violates the section to allow the fact a PBT was offered to the Defendant, however, depending on the facts of the case it may be harmless error. Reld v. Commonwealth

–        While the law requires an officer to offer a PBT, failure to do so does not necessarily make an arrest invalid. Jones v. Town of Marion.

–        PBT results cannot be used in an aggravated manslaughter case. Hall v. Commonwealth.

–        Even if a PBT result is .00 that does not justify a driver’s refusal to take a formal breath test. Northup v. Commonwealth.

–        Where the Defendant said he passed the field sobriety test he opened the door for admission of the PBT result. Nichols v. Commonwealth.

The purpose of this law is to allow a Defendant an opportunity to avoid arrest if they have an odor of alcohol, but haven’t consumed enough alcohol to be above a .08.

18.2-268.2 Implied consent to post arrest testing to determine drug or alcohol content of blood

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 18.2-266, 18.2-266.1, 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 18.2-272 or 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.

This law lays out Virginia’s implied consent law. This is the law that requires anyone driving on any road in Virginia to submit to a breath test. People often ask why they don’t have a right to refuse a breath test. The implied consent law applies to anyone driving in Virginia regardless of where they are from or why they are on the highway.

Important Implied Consent Cases

–        A person can only be required to take a blood test when a breath test is unavailable. Lamay v. Commonwealth.

–        It’s ok for an officer to ask a driver to take a blood test after there has been a determination that he cannot physically take a breath test. Pearson v. Commonwealth.

–        An officer does not have to try to get a blood test. Taylor v. Commonwealth.

–        An arrest has to occur within 3 hours of driving for the implied consent law to be implicated. Thurston v. Lynchburg.

–        An arrest has to be lawful for implied consent to apply. Bristol v. Commonwealth.

–        Implied consent applies to any highway as that term is defined under Virginia law. Mitchell v. Commonwealth.

–        A parking lot is not necessarily a highway. White v. Lynchburg.

–        A driver has a right to have blood results. Breeden v. Commonwealth.

–        If originally arrested for drunk in public, a Defendant does not have a right to a test. Wilson v. Commonwealth.

–        A Defendant has a right to see the test results, but nothing more. Rasmussen v. Commonwealth.

–        A person only has a right to receive the test result if the machine produced one. If the machine doesn’t print a result it isn’t error to not give the Defendant a copy. Wing v. Commonwealth.

–        Simply taking a test is not evidence the driver believed he was not guilty. Hammond v. Commonwealth.

–        If the Defendant’s actions prevent the taking of a second blood sample, it is not error to admit the result of jut that one sample. Thurston v. City of Lynchburg.

–        If the police do not comply with the legal requirements the blood/breath test results are inadmissible. Thurston v. City of Lynchburg.

–        Implied consent is not part of the DWI penalties. Deanor v. Commonwealth.

–        An officer is not required to get blood from an unconscious Defendant. Oliver v. Commonwealth.

–        If a Defendant applies to have a blood sample sent to an independent lab that request must be complied with. If not the Commonwealth must explain the oversight. If the Commonwealth fails to do so, the trial judge is not supposed to allow the Commonwealth’s sheet into evidence. Taffe v. Commonwealth.

–        A person arrested for DWI does not have a right to consult an attorney before taking a breath or blood test.

–        A warrantless blood test is only valid if 1) the process is reasonable 2) there is indication evidence will be found 3) exigent circumstances exist. Tipton v. Commonwealth.

–        Refusal to submit to a test can be a factor in determining probable cause. Jones v. Commonwealth.

Cases Relating to Inability to Take a Test

–        Once a Defendant agrees to take a test, the Commonwealth must establish a valid reason the test wasn’t available. Mason v. Commonwealth.

–        A driver must prove physical inability to take a test. Lamay v. Commonwealth.

–        The Commonwealth is entitled to rebut the Defendant’s argument of inability. Lamay v. Commonwealth.

18.2-268.3 Refusal of tests; penalties; procedures

A. It shall be unlawful for a person who is arrested for a violation of § 18.2-26618.2-266.1, or subsection B of § 18.2-272 or of a similar ordinance to unreasonably refuse to have samples of his blood or breath or both blood and breath taken for chemical tests to determine the alcohol or drug content of his blood as required by § 18.2-268.2 and any person who so unreasonably refuses is guilty of a violation of this section.

B. When a person is arrested for a violation of § 18.2-51.418.2-26618.2-266.1 or, subsection B of § 18.2-272 or of a similar ordinance and such person refuses to permit blood or breath or both blood and breath samples to be taken for testing as required by § 18.2-268.2, the arresting officer shall advise the person, from a form provided by the Office of the Executive Secretary of the Supreme Court, that (i) a person who operates a motor vehicle upon a highway in the Commonwealth is deemed thereby, as a condition of such operation, to have consented to have samples of his blood and breath taken for chemical tests to determine the alcohol or drug content of his blood, (ii) a finding of unreasonable refusal to consent may be admitted as evidence at a criminal trial, (iii) the unreasonable refusal to do so constitutes grounds for the revocation of the privilege of operating a motor vehicle upon the highways of the Commonwealth, (iv) the criminal penalty for unreasonable refusal within 10 years of a prior conviction for driving while intoxicated or unreasonable refusal is a Class 2 misdemeanor, and (v) the criminal penalty for unreasonable refusal within 10 years of any two prior convictions for driving while intoxicated or unreasonable refusal is a Class 1 misdemeanor. The form from which the arresting officer shall advise the person arrested shall contain a brief statement of the law requiring the taking of blood or breath samples, a statement that a finding of unreasonable refusal to consent may be admitted as evidence at a criminal trial, and the penalties for refusal. The Office of the Executive Secretary of the Supreme Court shall make the form available on the Internet and the form shall be considered an official publication of the Commonwealth for the purposes of § 8.01-388.

C. The arresting officer shall, under oath before the magistrate, execute the form and certify, (i) that the defendant has refused to permit blood or breath or both blood and breath samples to be taken for testing; (ii) that the officer has read the portion of the form described in subsection B to the arrested person; (iii) that the arrested person, after having had the portion of the form described in subsection B read to him, has refused to permit such sample or samples to be taken; and (iv) how many, if any, violations of this section, § 18.2-266, or any offense described in subsection E of § 18.2-270 the arrested person has been convicted of within the last 10 years. Such sworn certification shall constitute probable cause for the magistrate to issue a warrant or summons charging the person with unreasonable refusal. The magistrate shall attach the executed and sworn advisement form to the warrant or summons. The warrant or summons for a first offense under this section shall be executed in the same manner as a criminal warrant or summons. If the person arrested has been taken to a medical facility for treatment or evaluation of his medical condition, the arresting officer may read the advisement form to the person at the medical facility, and issue, on the premises of the medical facility, a summons for a violation of this section in lieu of securing a warrant or summons from the magistrate. The magistrate or arresting officer, as the case may be, shall forward the executed advisement form and warrant or summons to the appropriate court.

D. A first violation of this section is a civil offense and subsequent violations are criminal offenses. For a first offense the court shall suspend the defendant’s privilege to drive for a period of one year. This suspension period is in addition to the suspension period provided under § 46.2-391.2.

If a person is found to have violated this section and within 10 years prior to the date of the refusal he was found guilty of any of the following: a violation of this section, a violation of § 18.2-266, or a violation of any offense listed in subsection E of § 18.2-270, arising out of separate occurrences or incidents, he is guilty of a Class 2 misdemeanor and the court shall suspend the defendant’s privilege to drive for a period of three years. This suspension period is in addition to the suspension period provided under § 46.2-391.2.

If a person is found guilty of a violation of this section and within 10 years prior to the date of the refusal he was found guilty of any two of the following: a violation of this section, a violation of § 18.2-266, or a violation of any offense listed in subsection E of § 18.2-270 arising out of separate occurrences or incidents, he is guilty of a Class 1 misdemeanor and the court shall suspend the defendant’s privilege to drive for a period of three years. This suspension period is in addition to the suspension period provided under § 46.2-391.2.

Important Refusal Cases

–        A breath test is not testimonial and therefore Fifth Amendment rights are not implicated by a conviction for refusing. Rowley v. Commonwealth.

–        The implied consent law and its punishments must be explained to the Defendant.

–        Loss of license for refusal is separate and independent from punishment for DWI.

–        It is not reasonable to refuse to take the test solely on the basis of a lawyer’s advice. Bailey v. Commonwealth.

–        There is no right to consult with an attorney before taking a test. Coleman v. Commonwealth.

–        PBT inadmissible to show reasonable refusal. Northup v. Commonwealth.

–        Implied consent does not have to be read to a Defendant who agrees to take a test. Whibley v. Commonwealth.

 

 

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