2.4 DUI PROCEDURE

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

2.4 DUI PROCEDURE

2.401 Generally.

DUIs can be very complex cases both to prosecute and to defend. The paragraphs that follow consider legal procedure specific to DUIs.

2.402 Preliminary Breath Test.

A person suspected of driving under the influence of drugs or alcohol has the right to a preliminary breath test, if testing equipment is available, pursuant to section 18.2-267(A). An officer conducting such an investigation must advise the suspect of his or her right to take the test, observe the testing process, and observe the results on the equipment. This preliminary test, usually conducted at the scene of the traffic stop, is not admissible at trial to prove guilt or innocence under section 18.2-267(E); however, it is admissible during a motion to suppress to prove probable cause to arrest. ³⁸⁸ Section 18.2-267(C) provides that a suspect has the right to refuse to take the test and that such a refusal cannot be used against him or her at trial.

As of 2024, section 18.2-267(F) provides that if the officer fails to advise the suspect of any rights enumerated under section 18.2-267, any subsequent test result becomes inadmissible, even for a motion to suppress. Although the remaining language of the section appears to also be mandatory, failure to offer the breath test does not by itself invalidate an arrest, if other competent evidence, such as field sobriety tests, officer observations, and suspect statements, supports a finding of probable cause to arrest. ³⁸⁹

Note that commercial licensees "may be required" to submit to the preliminary breath test pursuant to section 46.2-341.25, although the results obtained are also not admissible in any subsequent prosecution but may be used for pretrial motion hearings.

2.403 Implied Consent. ³⁹⁰

A. In General.

Any driver, whether licensed or not, who operates a motor vehicle ³⁹¹ on a public highway and is suspected of violating one of the designated DUI statutes ³⁹² impliedly consents to having a breath and blood sample taken for chemical analysis to determine alcohol and drug content, as long as the test is conducted within three hours of the alleged violation. ³⁹³ After making an arrest for driving while intoxicated, the arresting officer must advise the driver of Virginia's implied consent law.

B. Public Highway.

The Supreme Court of Virginia has held that the DUI statute ³⁹⁴ applies to the operation of a motor vehicle anywhere in the Commonwealth, including on private property. ³⁹⁵ However, for implied consent to apply, the offense must occur on a public highway. Suspects who are arrested for driving or operating a motor vehicle while intoxicated on private property are not captured under implied consent and, therefore, not required to submit to a blood or breath alcohol test.

Whether a way is a "highway" depends upon the "degree to which the way is open to the public use for vehicular traffic." ³⁹⁶ Generally, the parking lot of a commercial establishment is not considered a private highway unless the Commonwealth overcomes the presumption by proving that the commercial parking lot fit the definition of a "highway." On the other hand, residential parking lots are generally presumed to be "highways" open to public travel, and the implied consent law will apply unless the defendant overcomes that presumption by demonstrating that the residential parking lot excludes trespassers. ³⁹⁷ The Supreme Court of Virginia has held that posted "no trespassing" signs at the entrance of a privately maintained roadway is by itself sufficient to establish that the roadway is not accessible to the public and that the roadway is not a "highway" within the ambit of the implied consent law. ³⁹⁸

C. Breath or Blood.

In common practice, the officer typically offers a breath test before subjecting a suspect to a blood test. But the implied consent law does not require the police to offer a particular test, or any test at all, nor does it permit the defendant to elect which test he or she will submit to. ³⁹⁹ Additionally, an officer does not need to advise a person suspected of DUI that if he or she refuses the breath test, the officer can pursue a search warrant for a blood draw. ⁴⁰⁰

D. Impact of Implied Consent.

The Commonwealth gains at least two substantial benefits from the implied consent law beyond merely obtaining the defendant's blood alcohol level. First, the Commonwealth may admit the result of the test without laying the required common law foundation ⁴⁰¹ for the reliability of the forensic equipment and analysis used to produce the result. ⁴⁰² Second, the Commonwealth obtains a "permissive inference" ⁴⁰³ that the defendant was intoxicated if the defendant's blood alcohol content was at or above 0.08 percent by weight by volume or 0.08 grams per 210 liters of breath. ⁴⁰⁴ This permissive inference is a statutory shortcut that relieves the Commonwealth of the common law requirement to establish by expert testimony what effect, if any, such a concentration of drugs or alcohol would be expected to have upon the defendant. ⁴⁰⁵

In Birchfield v. North Dakota, ⁴⁰⁶ the United States Supreme Court held that breath alcohol tests are categorically permissible searches incident to arrest. Therefore, the police do not need to obtain a warrant (or even the consent of the defendant) to take a breath alcohol sample for chemical testing. And, because the defendant has no right to prevent a search of his or her breath after a valid arrest, the government can impose whatever punishment it chooses, including criminal penalties. ⁴⁰⁷

With respect to post-arrest police seizures and searches of blood, however, Birchfield made important distinctions about governmental attempts to seize a suspect's blood for the purpose of evidential chemical testing. First, in Birchfield, the Court held that the seizure of an arrestee's blood is not a permissible search incident to arrest because blood draws are "significantly more intrusive" than breath tests. ⁴⁰⁸ Therefore, it appears that under the holdings of Birchfield and Missouri v. McNeely, ⁴⁰⁹ the government must obtain a warrant or identify a valid exception to the warrant requirement before seizing an arrestee's blood for chemical testing. Whether the "implied consent" imposed upon all motorists satisfies the "consent" exception to the Fourth Amendment's warrant requirement is an open question in Virginia. The court of appeals, in an unpublished decision, held that consent to a breath or blood test is not coerced or involuntary when the police officer advises the defendant that he or she has already consented pursuant to the implied consent law. ⁴¹⁰ However, that case did not decide whether an arrestee can be punished under the implied consent law for refusing a warrantless blood test. Theoretically, refusal to comply with the blood test would conclusively establish that the arrestee did not consent to the seizure of his or her blood. The consent exception to the warrant requirement applies only if the consent is "freely and voluntarily given" ⁴¹¹ and only if the consent is revocable. ⁴¹² Virginia's implied consent law has been held to be "irrevocable" and therefore appears to fall short of the requirements of the consent exception. ⁴¹³ Likewise, it is questionable whether consent is "freely and voluntarily given" because the implied consent law revokes the arrestee's driver's license for one year when the arrestee refuses to submit to a warrantless seizure and search of his or her blood. ⁴¹⁴ The United States Supreme Court and the Supreme Court of Virginia have long forbidden state governments from imposing civil or criminal penalties upon an individual's refusal to waive his or her constitutional rights, ⁴¹⁵ including Fourth Amendment rights. ⁴¹⁶

In Birchfield, the Court also held that the government cannot impose criminal punishment for the refusal of a warrantless blood draw, even for offenders who have prior similar offenses. Birchfield did not clearly explain what principle of law establishes this limitation upon the punishment for refusal of a blood test versus a breath test. And, despite rendering the criminal provisions of numerous implied consent laws unconstitutional (including Virginia's), Birchfield admonished that it should not be read to cast doubt upon the validity of implied consent laws generally.

As a result of the United States Supreme Court's decisions, Virginia removed criminal penalties for refusal of a blood draw, even for repeat offenders. ⁴¹⁷ For breath tests, the first instance of refusal remains a civil matter, but a second or subsequent conviction of refusal of a breath test within 10 years of the first offense is a Class 1 misdemeanor. ⁴¹⁸

E. Refusal.

A driver's unreasonable refusal to take a breath or blood test can result in a refusal charge. To support a refusal charge, the Virginia Code requires only that the officer advise the defendant of the implied consent law after the defendant initially refuses to submit to a breath or blood test. ⁴¹⁹ This advisement must include a statement of the information contained in section 18.2-268.3(C) of the Virginia Code as it appears on a form that is provided by the Office of the Executive Secretary of the Supreme Court. ⁴²⁰ If the driver refuses to take the test after being advised of the law and its consequences, the officer must execute and acknowledge a declaration of refusal before the magistrate. That sworn certification constitutes probable cause for the magistrate to issue a warrant, and the magistrate then may issue the warrant for refusal. ⁴²¹ Section 18.2-268.3(D) also provides that when a driver is injured and taken to a medical facility for treatment or evaluation and refuses a blood test, the arresting officer may issue a summons on the premises of the medical facility in lieu of securing a warrant from a magistrate.

F. Reasonable Refusal.

Implicit in the language of Virginia's refusal law ⁴²² is the affirmative defense that a driver's...