The legislative drafting continues even as Virginia courts interpret the state of the law in the wake of the June decision in Birchfield v. North Dakota. Besides the warrant issue, that opinion also addressed the penalties that can be imposed when a driver refuses a blood test to measure blood alcohol content.
The Court of Appeals of Virginia rejected a challenge to a Loudoun County driver’s DUI conviction Tuesday, ruling that Birchfield did not apply because the driver was subject to only civil penalties, not criminal sanctions. The defendant’s lawyer expects to ask for Virginia Supreme Court review.
A Fairfax County driver also is hoping the Virginia Supreme Court will come to his aid after a conviction of refusing blood alcohol tests. Nathan Shin said he was exposed to possible criminal penalties for refusing to be tested, in violation of the high court’s ruling.
Legislation under construction
Virginia now uses an “implied consent” concept to coerce DUI suspects to submit to blood alcohol testing. Drivers are deemed to have consented to testing either by breath or by blood if suspected of being under the influence.
Refusing either test will subject a suspect driver to civil penalties for a first offense and criminal penalties for later refusals, under current Virginia statutes.
In Birchfield, the federal justices generally approved of the implied consent concept, but the court disapproved of criminal penalties for refusing to submit to a blood test.
Implied consent laws could be used for blood tests when penalties are civil or evidentiary. An evidentiary penalty could be allowing the refusal as evidence in a DUI trial.
When a driver faces criminal conviction for refusing a blood test without a warrant, the search cannot be justified on the basis of implied consent, the court said.
In the same decision, the court said that warrantless breath tests are lawful under the search-incident-to-arrest doctrine. The implied consent conceit was not a prerequisite to mandatory breath testing of DUI suspects, the justices said. Refusal of a breath test could bring criminal penalties.
A proposed rewrite of Virginia testing and refusal statutes would remove the use of implied consent for breath tests but leave in place implied consent for blood tests.
Del. David B. Albo, R-Springfield, chair of the House of Delegates Courts Committee provided a version of the Birchfield legislation, cautioning that it was only a first draft, not a bill before the General Assembly.
“There are problems with this and we are working on them,” Albo said.
A description of the proposed legislation said it maintains the existing basic statutory framework while conforming the Virginia statutes to iiiBirchfieldiii.
A first breath refusal would be a civil offense, but later refusals would be class 1 misdemeanors, commensurate with punishment for obstruction of justice.
While blood tests still would be based on implied consent, the legislation would eliminate criminal penalties for blood refusal. The civil loss of license at each level would match the DUI loss of license. Refusal also could be used as substantive evidence in a DUI trial.
The proposed language would add blood obtained by a search warrant or actual consent to the types of tests for which statutory presumptions apply. A refusal form would have to include a statement of the law and consequences, but the specific language of the form would be crafted by court staff.
Magistrates would be directed to give priority to search warrant applications for blood draws because of the “natural destruction of the evidence sought with each passing minute.”
The proposed legislation would remove the term “unreasonably” from the refusal statute. Defense lawyers have attacked the existing statute as unconstitutionally vague because of language referring to “unreasonably” refusing a BAC test.
“It gives no basis against which an accused person could determine when it is acceptable to refuse to provide a breath or blood sample,” read a brief filed in September in a Fairfax County case. The judge denied the motion to declare the refusal statute unconstitutionally vague.
DUI affirmed in Loudoun case
The Supreme Court of Virginia may be asked to look at the current state of the law in a Loudoun County case.
Sean Wolfe was convicted by a jury of drunken driving, but he argued the trial judge should have suppressed his blood test results. He said he did not consent to a blood test and the county did not obtain a search warrant.
The Court of Appeals affirmed his conviction Dec. 13 in Wolfe v. Comm. (VLW 016-7-301).
Evidence showed that Wolfe was unable to prevent his burping during an observation period before a breath test. For breath tests, a suspect must refrain from burping or regurgitating for 20 minutes before the test.
On the third burp, the arresting officer took Wolfe to get a blood test.
Wolfe earlier had said he did not like needles and did not want a blood test, but he did not expressly refuse the test, the court of appeals said. His statements, in context, did not establish refusal of the blood test, the court said.
Regardless, the test was valid under implied consent, the Court of Appeals ruled.
Since Wolfe faced only civil penalties for refusal, the iiiBirchfieldiii restriction on warrantless blood draws under implied consent did not apply, said Judge Mary Grace O’Brien, writing for a three-judge panel.
“In conducting a plain reading of Code § 18.2-268.2, it is clear that all of the requirements were met to establish appellant’s implied consent to the blood draw,” O’Brien wrote.
The appeals court also approved of allowing the jury to hear a description of the burping episode as a foundation for the use of the blood test.
Wolfe is represented by Potomac Falls attorney J. Daniel Griffith, who said a Supreme Court petition for appeal is planned. Griffith said he was prepared to take the case up to the U.S. Supreme Court if denied by the Virginia high court.
Birchfield attack deflected in Fairfax
A Fairfax County Circuit Judge rejected a challenge to a refusal conviction in a September ruling. The opinion from Judge John M. Tran came in Comm. v. Shin (VLW 016-8-131).
Nathan Shin argued that Birchfield rendered the Virginia refusal statute void because it required consent to both a breath and a blood test.
“A statute may be valid in part and unconstitutional in part,” Tran wrote.
Tran said he accepted the proposition that “neither a breath test nor a blood test is precluded under an unreasonable refusal statute when only civil penalties are imposed.”
Tran also rejected an argument that Shin’s due process rights were violated because he received imperfect notice of his rights, with language about the possibility of criminal sanctions for a blood refusal.
Tran said there was no constitutional violation for an imperfect advisory statement made in good faith by an officer complying with the law as understood by law enforcement.
Shin is represented by David Bernhard of Falls Church, who said he hoped the Supreme Court of Virginia would hear his appeal.