2.3 ARREST PROCEDURE

• Library: Defense of Serious Traffic Cases in Virginia (Virginia CLE) (2026 Ed.)

2.3 ARREST PROCEDURE

2.301 Generally.

While minor traffic infractions are generally resolved with a summons or a "ticket," serious traffic offenses, including both misdemeanors and felonies, may involve a custodial arrest. An arrest can be effectuated with a warrant or without a warrant, under certain circumstances. An officer may arrest any person who commits any crime that occurs in the officer's presence and any person whom he or she has reasonable grounds or probable cause to suspect of having committed a felony not in his or her presence. ³⁷⁴

2.302 Misdemeanor Arrest Without Warrant.

With some exceptions, a police officer cannot make a warrantless misdemeanor arrest if the misdemeanor was not committed in the officer's presence. Traffic cases generally do not raise this issue because usually the officer has observed the conduct for which the charges were brought. No suppression remedy is available in many cases where a police officer makes an unlawful arrest under section 19.2-81 of the Virginia Code because that section does not expressly provide for suppression of evidence, so it is important to allege both the statutory violation and the Fourth Amendment violations to trigger exclusion of the evidence. ³⁷⁵ The following are exceptions to the officer-presence requirement.

A. Medical Facility.

When an officer did not personally observe the violation, section 19.2-81 of the Virginia Code allows an officer to arrest a driver, either at the scene of a motor vehicle accident or at a medical facility to which the driver has been transported, based on the officer's personal investigation of the accident, including eyewitness statements made at the scene.

Alternatively, an officer investigating a DUI may issue a summons instead of a warrant where the accused is being treated at a medical facility and therefore cannot be arrested and physically taken before a magistrate. ³⁷⁶ Such a summons is considered an arrest for the purposes of the DUI and implied consent provisions of the Virginia Code. ³⁷⁷ This exception is a response to the rulings of Virginia's appellate courts in a line of cases, discussed below, that turned on whether a defendant was arrested in compliance with the implied consent statute when the defendant was released on a summons.

In Bristol v. Commonwealth, ³⁷⁸ a police officer investigating a DUI accident case found the accused at the hospital and informed him that he was under arrest and read the implied consent law to him. Blood was drawn from Bristol with the understanding that it was for police use. But the officer never took measures to restrain Bristol, nor did he physically touch him. The officer left the hospital without issuing a summons or serving a warrant upon Bristol. A month passed before Bristol was formally charged with DUI. The Supreme Court of Virginia held that despite the officer's assertion of arrest, the police officer's actions did not constitute an arrest under the common law because (i) the officer did not physically restrain the accused, and (ii) the defendant's mere consent to the blood test was not a sufficient submission to the officer's show of authority to constitute an arrest. Because Virginia's implied consent law is triggered by an arrest within three hours of the offense, the blood alcohol content (BAC) result was inadmissible at trial.

The court of appeals has arguably not applied Bristol consistently. In Sprouse v. Commonwealth, ³⁷⁹ the court of appeals held that the results of a blood alcohol test had to be excluded at trial because the defendant was not arrested before the blood draw. When the police arrived at the accident scene, the defendant was already in the back of the ambulance. After conducting a preliminary investigation, the officer informed Sprouse that he would be taken to the hospital and charged with DUI. Sprouse was then transported to the hospital, where a nurse obtained a blood sample for the police. After the sample was taken, the officer issued a summons to Sprouse for DUI, which Sprouse signed. Unlike the officer in Bristol, the officer never indicated to Sprouse that he was under...