1.3 Intoxication-related Offenses

• Library: Defense of Serious Traffic Cases in Virginia (Virginia CLE) (2020 Ed.)

1.3 INTOXICATION-RELATED OFFENSES

1.301 Driving While Intoxicated.

A. The Statute. Section 18.2-266 of the Virginia Code (the Virginia DUI statute) ¹⁷⁸ contains the basic prohibition against a driver operating a vehicle on a highway while intoxicated. ¹⁷⁹ This section sets forth five separate ways in which a driver may be convicted of the charge, designated as subsections (i) through (v). ¹⁸⁰ Taken together, the section describes a single offense, but each of the subsections sets forth a separate and independent means by which the overall offense may be proved. Thus, one may be convicted of the offense created under subsection (i) based solely on the court accepting into evidence the results of a blood or breath test.

The importance of subsections (i) and (v) of section 18.2-266 cannot be overstated. Subsection (i) relies on the results of a chemical test for blood alcohol content (BAC); for this reason, it is the most easily proved. When evidence of a test properly administered by law is admitted and shows that the accused had a BAC of .08 or more, the Commonwealth establishes a rebuttable presumption that the accused was under the influence of alcohol. ¹⁸¹ Similarly, under subsection (v), if the Commonwealth proves that the accused had a blood drug content (BDC) of .02 percent cocaine, .10 percent methamphetamine (commonly known as speed, meth, or ice), .10 percent phencyclidine (known as PCP or angel dust), or .10 percent 3,4-methylenedioxymethamphetamine

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(known as MDMA or ecstasy), the Commonwealth establishes a rebuttable presumption that the accused was under the influence of drugs. The Virginia Department of Forensic Science has determined that these amounts would cause a person to be impaired to a similar degree as a person with a BAC of .08 percent. It may be surprising that, because these drugs are illegal, the law allows a BDC level of any amount. The rationale seems to be that this Code section deals only with the ability to safely operate a motor vehicle.

For drugs other than cocaine, methamphetamine, phencyclidine, or 3,4-methylenedioxymethamphetamine, a blood test may be required to identify the amount of the intoxicants in the person's blood. Expert testimony will then be necessary for the Commonwealth to prove that the level of intoxicants is great enough to impair a person's ability to safely drive or operate a motor vehicle.

Under subsection (ii), the driver may also be convicted of driving under the influence based on other evidence of intoxication, such as an officer's observations, even in the absence of the chemical test. Additionally, circumstantial evidence may be sufficient to convict the defendant even without direct proof of the defendant driving while intoxicated. ¹⁸² Subsection (iii) applies when a driver is under the influence of drugs other than alcohol that adversely affect driving abilities. Subsection (iv) applies to the driver who is under the influence of a combination of alcohol and other intoxicants.

In Virginia, DUI is a strict liability crime. Intent is not an element of the offense. The Commonwealth must only prove that a person was "operating" a motor vehicle in an intoxicated condition. It is not necessary to prove a defendant's purpose in order to find that he or she did in fact illegally "operate" the vehicle. The purpose of Virginia's DUI statute is to punish an individual's drunken actions, not his or her intent. ¹⁸³

B. Application of Mandatory Minimum Penalties on Federal DUI Cases. Crimes committed on federal lands within Virginia are

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adjudicated in federal court. Depending on the location of the offense, the federal court will use the applicable Code of Federal Regulations. For example, there are federal DUI rules for crimes committed on federal parks, such as the George Washington Memorial Parkway. If there are no DUI rules for a federal enclave, the federal court will use the Assimilative Crimes Act (ACA) ¹⁸⁴ to incorporate Virginia law into the federal enclave. Most military bases, for example, do not have their own DUI rules. The emerging rule appears to be that Virginia's mandatory minimum penalties do pertain to ACA cases, although generous federal incarceration substitutes apply. For all other federal cases, the mandatory minimum penalties are not "mandatory," but some judges will still impose them for comity purposes.

The question of whether Virginia's mandatory minimum jail sentences apply to federal cases was actively litigated in 2005 in United States v. Clark. ¹⁸⁵ In Clark, the defendant was convicted of DUI in federal court. He argued that the ACA gives federal judges the discretion not to impose the otherwise applicable Virginia mandatory minimum penalty of 20 days in jail. The district court held that federal courts must impose the Virginia mandatory minimum penalties, but do have discretion to implement federal incarceration alternatives such as home confinement, weekend incarceration, or community confinement. ¹⁸⁶

In United States v. Smith, ¹⁸⁷ the Fourth Circuit addressed whether federal or Virginia law would apply to driving offenses committed on the access road to CIA headquarters. The defendant argued that the access road was a private road and not part of the Virginia highway system, therefore he could not be convicted under Virginia's driving with a suspended license law. The Fourth Circuit agreed and dismissed the conviction. In response to this and other federal cases, the Virginia legislature amended the definition of "highway" under section 46.2-100 to include "the entire width between the boundary lines of every way or place used for purposes of vehicular travel on

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any property owned, leased, or controlled by the United States government and located in the Commonwealth." ¹⁸⁸

C. DUI Arrests Without a Warrant. Section 19.2-73(B) of the Virginia Code provides that an officer at a medical facility

may issue [to a person suspected of driving while intoxicated or of refusal of tests] . . . a summons . . . in lieu of securing a warrant and without having to detain that person, provided the officer has probable cause to place him under arrest. The issuance of such summons will be deemed an arrest.

If a summons is not issued, the officer must bring the suspect before a judicial officer for a bail hearing pursuant to section 19.2-80.

Section 19.2-81(D) provides that an officer who has probable cause to suspect a person of committing the misdemeanor offenses of driving a motor vehicle or boat while intoxicated may arrest that person without a warrant at any location within three hours of the alleged incident, regardless of whether the offense occurred in the officer's presence.

D. Proving a Driver Was Under the Influence. Under section 19.2-187 of the Virginia Code, the Commonwealth may introduce a duly attested BAC report as proof that the driver was operating a vehicle under the influence. Section 19.2-187.1 gives the driver the right to require the prosecution to call the attesting technician and to cross-examine him or her on the validity of the results. A defendant who fails to require this waives the right to be confronted with the witnesses against him or her under the Sixth Amendment's Confrontation Clause. ¹⁸⁹

A related issue is whether a BAC certificate is testimonial in nature. In Wimbish v. Commonwealth, ¹⁹⁰ the court ruled that the Intoxilyzer 5000's breath test results and the technician's attestation were testimonial

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under the Confrontation Clause and thus subject to cross-examination. The court ruled that the Intoxilyzer 5000 is a machine that produces data and not a witness or declarant for purposes of the Confrontation Clause. The court also held that the attestation clause on the breath certificate merely stated the operator's opinion that he complied with the department's approved methods. The court also held that maintenance logs for the Intoxilyzer were business records; they are not testimonial, nor are they evidence against any particular defendant.

The following year, the United States Supreme Court decided Melendez-Diaz v. Massachusetts. ¹⁹¹ The Court held that analysts of certificates of analysis are in fact witnesses and, absent a showing that the analysts were unavailable to testify at trial and that the petitioner had a prior opportunity to cross-examine them, the petitioner was entitled to be "confronted with" the analysts at trial. ¹⁹²

The Virginia General Assembly responded by calling a special session to amend Virginia Code section 19.2-187.1 to conform the statute to the Supreme Court's mandate. Whenever the Commonwealth intends to offer a certificate of analysis into evidence in lieu of testimony, it must:

1.	Provide a copy of the certificate to counsel for the accused no later than 28 days before the hearing or trial;
2.	At the same time, provide notice to counsel for the accused of the accused's right to object to having the certificate of analysis admitted without the person who performed the test being present and testifying;
3.	If the Commonwealth intends to use two-way video conferencing instead of producing the witness, it must notify the defendant of its intent to do so and also of the accused's right to object to the procedure; and
4.	At the time the Commonwealth provides the certificate and notice to counsel for the accused, it must

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file the certificate and notice with the clerk of court hearing the matter (i) on the day that the certificate and notice are provided to the accused or (ii) in the case of a breath test certificate for a violation of any offense listed in subsection (E) of section 18.2-270, no later than three business days following the day that the certificate and notice are provided to the accused.

Counsel for the accused (or simply the accused, if proceeding pro se) must file written objections within 14 days of the date the Commonwealth files the certificate and notice with the clerk...