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Probable cause to arrest for driving under the influence

Probable cause to arrest for driving under the influence

An officer had probable cause to arrest defendant for driving under the influence based on signs that defendant’s alcohol consumption observably affected his “his manner, disposition, speech, muscular movement [and] general appearance or behavior.”

Further, despite defendant’s arguments to the contrary, he was driving on a highway when arrested and was thus subject to Virginia’s implied consent law. His motion in limine to exclude a certificate of blood alcohol analysis is denied.

Probable cause

Deputy Bradley responded to the scene of a one-car accident. Bradley arrested defendant for driving under the influence. Defendant argues that Bradley lacked probable cause for the arrest.

“The defendant in the case at bar was charged on a warrant alleging the entirety of the potential violations of 18.2-266 without election or particularization.

“There are five variations of this particular statutory violation. Thus, the Commonwealth may show probable cause as to any variety of such offense, and to require the Commonwealth to establish probable cause as to statutorily defined ‘intoxication’ only would be unduly limiting.

“In any event, the facts here, the court finds, establish probable cause that the defendant had ‘drunk enough alcoholic beverages to observably affect his manner, disposition, speech, muscular movement, general appearance or behavior’ and that such condition existed at the time of the incident.

“Even assuming Code § 18.2-266 requires physical impairment for the subdivision prohibiting driving ‘while under the influence of alcohol,’ Dep. Bradley in fact observed signs of physical impairment in the defendant and testified credibly to the same.

“Bradley testified that the defendant was both disheveled in his appearance and had an odor of alcohol emanating from his person. Bradley indicated that he could detect the odor from about 5 feet away and the odor got stronger the closer he got to the defendant.

“Bradley also testified that the defendant was stumbling and trying to talk on the phone at the same time, and that the defendant couldn’t walk straight; placed his hand on a nearby vehicle for balance and swayed back and forth as they spoke. Additionally, the defendant admitted to drinking (although minimizing the amount) and Bradley observed that the defendant’s eyes were bloodshot and glossy.

“Bradley testified that the defendant’s speech was slurred but admitted that he did not note such fact in his report which had been written some 10 months prior to trial.

“The Supreme Court has said that such facts are sufficient to establish probable cause that a person is intoxicated. … Additionally, in light of this evidence of the defendant’s alcohol consumption and its discernable effect on his physical state, the defendant’s refusal to perform [field sobriety tests] is circumstantial evidence showing the defendant was aware that his consumption of alcohol would affect his ability to perform such tests.”

There was probable cause to arrest defendant.


Virginia’s implied consent law applies to vehicles driven on a highway. Defendant has filed a motion in limine to exclude his blood alcohol test result because he was not on a “highway” when he was arrested.

“‘Highway’ means the entire width between the boundary lines of every way or place open to the use of the public for purposes of vehicular travel in the Commonwealth, including the streets and alleys. Va. Code Ann.§ 46.2-100.”

Defendant was driving “upon a roadway named Allderwood Terrace which proceeds through an apartment complex intersecting, at its western most end, with Ashburn Village Boulevard; and intersecting, at its eastern most end, with Gloucester Parkway.

“Both Ashburn Village Boulevard and Gloucester Parkway are undisputed public roads in Loudoun County, Virginia. Adjacent to the complex on its southern end is a large ball field complex. At each of the two entrances onto Allderwood Terrace from the connecting public roads there exists signage which states ‘Ballfield Traffic Prohibited. Parking for Residents and Guests Only.’”

Kim v. Commonwealth, 293 Va. 304 (2017), “makes clear that the Commonwealth bears the initial burden of presenting evidence establishing that the public has ‘unrestricted access’ to the private way in question. … This initial showing is often made by evidence of roadway improvements that bear the hallmarks of typical public roads such as paved surfaces, signage, curb and gutter improvements and often pedestrian walkways appurtenant to such improvements. …

“If the appearance of the roadway in question is one of unrestricted access by the public, it is presumptively a public ‘highway’ for enforcement purposes, even though private. Once this appearance is established, the motorist (or now defendant) may only reverse his misfortune by presenting evidence in rebuttal of such presumption that shows the area was, in fact, only open to those with ‘express or implied permission from the owner[.]’ …

“The dispositive question here is the significance of the ‘Ballfield Traffic Prohibited’ ‘Parking for Residents & their Guests Only’ sign. This sign imposes, at most, a partial restriction on traffic access to Allderwood Terrace.

“ However, the Supreme Court has said that ‘the test for determining whether a way is a “highway” depends upon the degree to which the way is open to public use for vehicular traffic. …

“In this court’s view, a discrete restriction which only prohibits those vehicles intending to use Allderwood Terrace to park in the townhome community for the convenient access of an adjacent ballfield, while at the same time allowing for access by every other member of the public for any other purpose (including travel on the road) illustrates a broad degree of openness for public use.”

The court finds that Allderwood Terrace is a statutory highway. The motion in limine is denied.

Commonwealth v. Aragon, Case No. CR 36196, April 28, 2021, Loudoun County Cir. Ct. (Fisher) (Opinion & Order) VLW 021-8-066, 10 pp.

VLW 021-8-066

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