A test for blood alcohol tests

Most drivers know there is a pen­alty in Virginia for refusing a blood alcohol test when police suspect drunken driving. But does the Constitution allow a state to pun­ish a driver for refusing a warrant­less test to measure blood alco­hol content?

The U.S. Supreme Court heard argu­ments on the question last month, and the Supreme Court of Virginia now is being invited to consider a similar issue in a Fairfax case.

Circuit judges have rejected challeng­es to Virginia’s implied consent law in several cases, but the refusal conviction of Matthew A. Kim marks the first time the Virginia justices have been asked to decide the question.

If Kim wins the point, his lawyers say the ruling would not tie the hands of po­lice in prosecution of impaired drivers. It would merely require a trip to a mag­istrate’s office to get a warrant issued for administering the alcohol test.

Lawyers for the state say Virginia’s appellate courts have already ruled that the implied consent law is consti­tutional.

The law — Va. Code § 18.2-268.3 — makes it unlawful for an impaired driv­ing arrestee to “unreasonably refuse” to have blood or breath samples taken for chemical tests to determine the alcohol or drug content of the driver’s blood.

The statute calls for an officer to ad­vise the arrestee that anyone operat­ing a vehicle on Virginia highways is deemed to have consented to the chem­ical testing. A first violation is a civil offense; later violations are criminal offenses.

The penalty for a first-time refusal is a one-year license suspension.

Fairfax case

Kim, 45, was found asleep in a car in an apartment parking lot in Annandale in March of last year, according to the briefs of the parties. The engine was running. Kim later refused a breath test at the Fairfax County jail. Judge Jan L. Brodie convicted Kim of civil re­fusal on Jan. 27.

The law used to charge Kim with refus­al ignores constitutional protections, his lawyers argued in a petition for appeal to the Virginia Supreme Court.

Kim is represented by Patrick M. Blanch of Fairfax and David Bernhard of Falls Church.

“The government cannot punish a per­son or rescind a governmentally bestowed privilege as a consequence for refusing to waive a constitutional right against un­reasonable warrantless searches,” the lawyers wrote.

To hold otherwise “allows the state an end-run around the warrant require­ment,” of the U.S. Constitution, the law­yers argued in their petition.

In effect, the government punished Kim for refusing to consent to giving evi­dence against himself without a warrant, the lawyers contend.

Precedent challenged

Lawyers for the state have not yet re­sponded to Kim’s petition for appeal, but Fairfax prosecutors have honed their op­position in at least three cases litigated in Fairfax County Circuit Court.

“Binding Virginia case law is clear and on point,” wrote Fairfax County assistant commonwealth’s attorney Brandon R. Sloane in the Kim case.

“Virginia courts have held that here is ‘no Fourth Amendment violation in pun­ishing a DUI suspect for refusing to pro­vide a breath sample under § 18.2-268.3,’” Sloane said.

Sloane acknowledged contributions from earlier briefs authored by assistant commonwealth’s attorney Ryan B. Brede­meier.

The prosecutors pegged their argu­ments on a 2006 opinion from the Court of Appeals of Virginia authored by then- Judge D. Arthur Kelsey, now a justice of the Supreme Court.

The implied consent statute did not compel testimonial evidence in breach of the Fifth Amendment or authorize an unlawful search or seizure in violation of the Fourth Amendment, the court ruled in Rowley v. Com. (VLW 006-7-151).

The court viewed breath tests as “non-testimonial, rather than communica­tive, in nature.” Accordingly, a breath test did not implicate the Fifth Amendment guarantee against self-incrimination, the appeals court reasoned.

“The act of driving constitutes an irre­vocable, albeit implied, consent to the offi­cer’s demand for a breath sample,” Kelsey wrote, also rejecting a Fourth Amendment challenge.

A U.S. Supreme Court decision in 2013 undermined the validity of Rowley, Kim’s lawyers argued.

In Missouri v. McNeely, five justices held that the natural breakdown of alcohol in the bloodstream did not automatically justify an exception to the Fourth Amend­ment’s warrant requirement for noncon­sensual blood testing.

“McNeely’s exhortation that exigent circumstances are no longer presumed in every DWI case has invalidated the fun­damental legal underpinning of the cases holding that implied consent laws are con­stitutional,” Kim’s lawyers wrote.

Fairfax judges who earlier followed Rowley in rejecting challenges to the implied consent law include Brodie and Charles J. Maxfield, the lawyers said.

Blanch said the other cases never pre­sented the opportunity for appeal be­cause the accused drivers ultimately were offered deals they were happy to take, Blanch said.

A Hanover County judge rejected a similar challenge in 2014. Blanch said he knew of no successful constitutional chal­lenge to the Virginia implied consent law.

The U.S. Supreme Court is now consid­ering three cases involving criminal pen­alties for test refusals, so there could be new guidance from above as the Kim case goes before the Virginia high court, Blanch said.

Under usual Supreme Court procedure, the state will file a brief in opposition to Kim’s petition and Kim’s lawyer then will try to persuade a three-justice panel to ac­cept the appeal.

Both Bernhard and Blanch said they think the Supreme Court will be intrigued.

“I have a feeling they will take it just be­cause it’s an interesting issue,” Bernhard said.

The Virginia court also could reverse Kim’s refusal penalty on a more limited finding. Bernhard argues Kim should not have been charged with refusal because he was in a private parking lot — marked as “private property” — when police found him.

Unlike the Virginia DUI law, there is a “highway” requirement in the implied consent statute, the lawyer contended. A marked private parking lot cannot be con­sidered a “highway,” he said.

A spokesperson for the Virginia attor­ney general’s office did not respond to a request for comment on Kim’s petition for appeal.