Form Supports Test Refusal Charge

A driver cannot overturn a finding of unreasonable refusal to submit to a blood or breath test by arguing the commonwealth had to prove the officer who arrested him for DUI read him the mandated information in the “refusal form” in order to have the form properly admitted; the Virginia Supreme Court says admission of the form was, at most, harmless error.

Appellant was arrested by one officer for DUI in violation of Va. Code § 18.2-266, and then transported to the police department where another officer read him the information from the refusal form and attempted to administer the test. At the bench trial on the refusal charge, both officers testified for the commonwealth. The arresting officer acknowledged he could not recall whether he had in fact read the refusal form to appellant. Appellant argued the refusal form signed by the arresting officer was inadmissible, because it was the breath test operator who read the form to appellant.

Central to appellant’s challenges to the circuit court’s rulings is his contention that the circuit court erroneously construed Code § 18.2-268.3 with regard to the elements of the unreasonable refusal offense. Under his view of the statute, subsections B and C – prescribing the content, reading and execution of the refusal form – constitute elements of the offense of unreasonable refusal. Thus, appellant contends the commonwealth was required to prove as part of its prima facie case that the arresting officer read the refusal form to appellant and observed his “resulting refusal,” which the commonwealth’s evidence failed to show. We disagree with this reading of Code § 18.2-268.3.

Under Virginia’s implied consent law, any person operating a vehicle on a highway is deemed to have consented to submit to a chemical test that measures his blood alcohol and/or drug content if he is arrested for violation of Code § 18.2-266, as occurred in this case. Code § 18.2-268.3(a) then sets forth the unreasonable refusal offense. The elements of the offense are plainly stated in subsection A: unreasonably refusing to submit to a blood and/or breath test after being arrested for driving under the influence of alcohol or drugs. Contrary to appellant’s urged construction of the statute, subsection A does not incorporate the procedural requirements set forth in subsections B and C. Instead, compliance with the subsection B and C procedure is limited to establishing probable cause for the issuance of a warrant or summons charging a driver with unreasonably refusing to submit to the breath or blood test. Thus, while the requirements in subsections B and C indeed provide significant procedural safeguards to the accused, they are not elements of the unreasonable refusal offense.

The relevant, undisputed evidence was that appellant had been arrested for driving under the influence of alcohol in violation of Code § 18.2-266 and refused to submit to a breath test until he had spoken with his attorney. On those undisputed facts, the circuit court found appellant guilty of the offense. Those facts were sufficient as a matter of law to support that finding. As this court has previously held, a person’s unwillingness to take the test without prior consultation with counsel does not constitute a reasonable basis for the refusal. Thus, appellant was not prejudiced by the admission of the form signed by the arresting officer and its admission as, at most, harmless error.

Judgment affirmed.

D’Amico v. Commonwealth (McClanahan) No. 130549, Feb. 27, 2014; Montgomery County Cir.Ct. (Turk) Beverly M. Davis for appellant; Elizabeth C. Kiernan, AAG; Kenneth T. Cuccinelli II, AG, for appellee. VLW 014-6-028, 9 pp.