Traffic Offenses – DUI – Aggravated Involuntary Manslaughter

Although a DUI defendant contends the commonwealth failed to comply with Va. Code § 18.2-268.2 by effecting his arrest within three hours of the alleged offense of DUI before requiring his submission to a blood test, a Fairfax Circuit Court finds the trooper was not required to venture into an operating room and touch defendant to make the arrest, and because the arrest was timely, the court denies defendant’s motion in limine.

The Virginia Code does not define the term “arrest.” This court holds that, as applied to Va. Code § 18.2-268.2, an arrest occurs under the second prong of the test in Bristol v. Commonwealth, 272 Va. 568 (2006), when law enforcement officers’ objective actions objectively establish that they have taken sufficient steps to ensure that a suspect remain under their control, thereby effecting the suspect’s complete surrender of his personal liberty to the officers’ authority.

Here, unlike the defendant in Bristol, this defendant was not at any time, even remotely free to leave the hospital of his own accord, and the officers’ actions went far beyond a mere statement that defendant was under arrest. This defendant remained under the uninterrupted and watchful supervision of the Virginia State Police and the Fairfax County Sheriff’s Office from the moment law enforcement personnel arrived at the hospital to the moment defendant was discharged from the hospital and contemporaneously transferred to the detention center. An objective view of the stipulated evidence setting forth the actions of law enforcement personnel 1) at the hospital, 2) in securing the warrant from the magistrate, and in 3) transporting defendant directly to the detention center upon his discharge from the hospital, all support the finding that Trooper Daly both intended, and did, in fact, place defendant under arrest prior to the blood test. The lack of resistance by defendant to the officers’ absolute control over him thus manifested a complete submission of his personal liberty to the officers’ authority and defendant’s unconscious state at the time of the arrest bears no legal significance.

To extend the Bristol analysis to cover the facts of this case would create a hazardous requirement that an officer intrude into a sanitary operating room, thereby interrupting medical personnel and potentially endangering a suspect’s life, merely to physically touch an unconscious suspect for the sole purpose of ensuring the “legality” of an “arrest.” This court refuses to require an ill-advised and dangerous gesture in interpreting Code § 18.2-268.2.

Defendant’s motion in limine to exclude BAC test results is denied.

Commonwealth v. Isaac (Klein, J.) No. FE 2009-1206, Dec. 31, 2009; Fairfax Cir.Ct.; Camille Turner, Ass’t Comm. Att’y; James K. Freeman for defendant. VLW 010-8-021, 7 pp.