5.9 Defenses Using the Statutory Framework

• Library: Defense of Serious Traffic Cases in Virginia (Virginia CLE) (2022 Ed.)

5.9 DEFENSES USING THE STATUTORY FRAMEWORK

5.901 In General.

This discussion of the statutory framework for defenses in serious traffic cases is intended to address and highlight some of the major concerns that may arise. It addresses the requirements and interactions of the statutes and the potential defenses and pitfalls that flow from them. It is not meant to be an exhaustive treatment of those issues, but should instead serve as a resource for the practitioner and as a supplement to other resources available in the preparation of these cases. Only first offense cases are addressed in detail, although the penalties for subsequent offenses are also outlined. Although this discussion may provide some assistance to the experienced practitioner, it is directed toward counsel who do not regularly defend serious traffic offenses or who are new to such practice.

Inevitably, the body of statutory law that forms the basis of traffic charges is subject to annual review and change by the legislature. Counsel must carefully negotiate this new statutory maze. This process may provide new opportunities for argument because the changes are not always implemented uniformly throughout the relevant statutes. Counsel should carefully review the statutes for each client's charges. A charge may be changed, for example, to avoid the new mandatory minimum jail terms by striking the BAC amount from the charging document and proceeding under section 18.2-266(ii), the "driving under the influence" subsection. In any event, counsel will need to tailor substantive, procedural, and tactical defenses to meet these new statutory challenges.

5.902 Driving While Intoxicated Defense.

A. The Statutory Language.

Section 18.2-266 of the Virginia Code, the Virginia "driving while intoxicated" (DWI) statute, consists of five distinct subsections. Taken together, the section describes a single offense; however, each subpart 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 section 18.2-266(i) based solely on the court accepting into evidence the results of a blood or breath test. Alternatively, one may be convicted of the offense absent the results of a blood or breath test under clause (ii)—driving under the influence ¹¹³¹ —based on other evidence such as an officer's observations.

The significance of a charge under clause (i) cannot be overstressed. When a certificate of analysis stating that the accused had a BAC of .08 or above is admitted into evidence, the Commonwealth achieves a "permissible inference" that the accused was under the influence of alcohol. ¹¹³² The Virginia Court of Appeals, in Yap v. Commonwealth, ¹¹³³ interpreted the words "rebuttable presumption" in the statute to mean "permissible inference." The same is true when a blood test shows any of the drugs listed in clause (v) at a minimum concentration or more. Counsel's first and foremost line of defense is to keep the breath or blood analysis certificate from being admitted into evidence.

B. Significance of "Implied Consent."

The reason that the driver must submit to a chemical analysis of blood or breath is that Virginia, like many other states, has enacted legislation that requires drivers suspected of being under the influence to take a chemical test through the legal fiction of "implied consent." ¹¹³⁴ The statute states that, by virtue of operating a vehicle on the highways of the Commonwealth, a driver has agreed to submit to a chemical test to determine his sobriety. This applies to all drivers, not just to those licensed in Virginia. If the accused "unreasonably" refuses to submit to such testing, a charge of refusal will result. Note that following the United States Supreme Court's decision in Birchfield v. North Dakota, ¹¹³⁵ all sanctions for a refusal charge if a blood test is needed because the breath test is "unavailable" are civil rather than criminal. ¹¹³⁶

C. Consent Is Continuing.

In Goodman v. Commonwealth, ¹¹³⁷ the Virginia Court of Appeals affirmed a conviction based on a blood sample taken from an unconscious driver while he was receiving emergency treatment in a hospital. The court held that incoherence or unconsciousness of the driver did not constitute a refusal because the driver's implied consent was continuing.

D. No Requirement That Test Be Offered.

Arguments have been made that by failing to offer chemical testing to a defendant, the Commonwealth may have either failed to follow a procedure that is required by statute or denied that person an opportunity to adduce potentially exculpatory evidence. ¹¹³⁸ In Oliver v. Commonwealth, ¹¹³⁹ the driver was found by the police officer asleep in his vehicle, engine running, with two empty liquor bottles. The officer was unable to wake him to read the implied consent advisement. Building on its holding in Goodman, the Virginia Court of Appeals held that the Commonwealth was not required to give the blood test if a driver was too incapacitated to be advised of the implied consent law. Although under Goodman the Commonwealth could have legally administered a blood test on these facts, the court held that it was not required to do so because the defendant's inability to understand the advisement and take the test was "of his own making." ¹¹⁴⁰ Other evidence of intoxication sufficiently established the violation.

The concurring opinion in Oliver relies on Butler v. Commonwealth, ¹¹⁴¹ in which the Virginia Supreme Court held that the use of "shall" in a statute requiring action by a public official is merely directory unless the statute manifests a contrary intent. Oliver reiterates that nothing in section 18.2-268.2 of the Virginia Code nor in any of the statutes dealing with the implied consent law could be construed as "prohibitory or limiting language" that would prevent prosecution when a blood test has not been provided. The court reasoned that a failure to comply with the provision by not offering a chemical test should not be a per se reason to set aside a conviction.

Likewise, in Brown-Fitzgerald v. Commonwealth, ¹¹⁴² the defendant argued that she had been denied a breath test. She experienced difficulty breathing during her transport after arrest and told the officer she was asthmatic. Because of these issues, the officer offered, and she agreed to take, a blood test. The Virginia Court of Appeals held that, although the language of the implied consent statute requires a driver to submit to a breath or blood test, it does not require that the arresting officer compel the driver to submit to chemical testing.

E. Arrest Within Three Hours of Offense.

Once the accused is arrested, blood or breath samples may be obtained under the terms of the operative "implied consent" statute provided that the accused is "arrested for a violation of [section] 18.2-266, 18.2-266.1, or subsection B of [section] 18.2-272 or of a similar ordinance within three hours of the alleged offense." ¹¹⁴³ The commercial licensee statute also requires the arrest to occur within three hours of the offense, conforming that charge to the more general statute. ¹¹⁴⁴

The chemical test can be given at any time after the arrest as long as the arrest itself occurs within three hours of the operation of the vehicle. However, as a practical matter, the relevance of test results to the driver's condition at the time of the offense becomes more attenuated as time passes.

F. Requirements for Admissibility.

Whether proceeding under section 18.2-266(i) or (ii), the admissibility of certificates of analysis of breath test results is governed by sections 18.2-268.2 and 18.2-268.9. The Virginia Department of Forensic Science's Intox EC/IR II Breath Test Operators Instruction Manual ¹¹⁴⁵ is an excellent resource for reviewing breath test procedures to help develop questions for use in cross-examining officers who administer the test. Admissibility of blood test results, generally at issue in prosecutions when drug-related driving is alleged, is also governed by section 18.2-268.2, the "implied consent" statute, and by sections 18.2-268.5 through 18.2-268.9.

G. Alternative BAC Proof.

The introduction of blood test results obtained by a hospital or other medical facility requires different evidentiary procedures. But if the results of a blood test cannot be admitted by certificate pursuant to sections 18.2-268.5 through 18.2-268.9 because of technical noncompliance, the results of a chemical blood test still may be admissible. Blood test results are admissible if they can meet the same requirements as any other factual evidence. The prosecution must provide a proper foundation ensuring the reliability of the equipment used for testing, establish a chain of custody, and demonstrate the technical competence of the individual administering the test. This evidence, although probative, raises no legal presumption of intoxication since it was not obtained in accordance with section 18.2-268.1 et seq. ¹¹⁴⁶ Under section 18.2-266(ii), the offense may be proven even in the absence of any breath or blood tests based on testimony from the arresting officer or other witnesses concerning the defendant's demeanor or conduct ¹¹⁴⁷ and the circumstances surrounding the operation of the motor vehicle.

Section 19.2-187.02(A) of the Virginia Code states, notwithstanding any other provision of law, that written reports or records of blood alcohol tests that are conducted upon persons receiving medical treatment in a hospital or emergency room are admissible under the business records exception to the hearsay rule for several of the DUI related statutes.

H. Certificate Filing Requirements.

The practitioner should be familiar with sections 19.2-187 and 19.2-187.1 of the Virginia Code, which govern the pretrial filing requirements for the certificate of analysis and the required language of motions under those sections. Strict compliance with these sections is mandatory. Moreover, a...