2.8 Statutory Defenses

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

2.8 STATUTORY DEFENSES

2.801 Officer Not in Uniform. When a driver is charged under section 46.2-817 of the Virginia Code with attempting to elude an officer who has signaled the driver to stop, the driver may raise as an affirmative defense the fact that he or she was not aware of being pursued by a police officer. This defense has a greater likelihood of success when the officer is not in uniform as required by section 19.2-78 .

2.802 Reasonable Refusal. Implicit in the language of Virginia's refusal law ²²⁵ is the affirmative defense that a driver's refusal of the breath test was "reasonable" given the facts and circumstances of the case. Virginia cases interpreting the statute indicate that a driver bears the burden of proof on this issue and should be given the opportunity to put on evidence that refusal of the breath test was not unreasonable. ²²⁶ If the driver meets this burden, the Commonwealth must explain the unavailability of a blood test or the lack of any test results. The refusal statute is not void for vagueness. ²²⁷

2.803 Speedy Trial. With certain notable exceptions not relevant to this discussion, a prosecution for a misdemeanor in Virginia must be commenced within one year of the event that leads to the charge. ²²⁸ However, traffic-related felonies in Virginia have no statute of limitations to bar prosecution.

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