Virginia DUI DWI Implied Consent Ceritificate Analysis Fairfax Richmond Beach Loudoun Prince William

Virginia DUI DWI Implied Consent Ceritificate Analysis Fairfax Richmond Beach Loudoun Prince William

Roseborough v. Commonwealth, 55 Va. App. 653 (Va. Ct. App. 2010)

Appellant smelled of alcohol, he swayed as he walked, his eyes were bloodshot and watery, and he spoke very loudly. He refused to perform any field sobriety tests at the scene. The officer arrested him for DWI based on appellant's admissions and the officer's observations at the scene. In a search pursuant to that arrest, Officer Weinstein discovered a remote key for the truck in appellant's pocket. The ignition key was still in the ignition of the truck. Appellant objected to introduction of the certificate. He argued that, because the officer did not have statutory authority for his arrest under Code 19.2-81 (both because the DWI, a misdemeanor offense in this case, did not occur in the officer's presence and because the accident did not occur on a public highway), the implied consent statute did not apply to say that appellant was "deemed as a condition of such operation [of his car] to have consented to a blood test or breath test." Therefore, he contended, the certificate was not admissible.

The Court reasoned that analysis of the case begins with the uncontested fact that Officer Weinstein never read the implied consent law to appellant and did not obtain appellant's consent to blow into the Intoxilyzer by informing him of the implied consent law. Instead, appellant volunteered to take the test before Officer Weinstein had even decided if he could use the implied consent law to obtain a breath sample from appellant -- and after Officer Weinstein had informed appellant of his Miranda rights. Appellant actually initiated the taking of the test and explicitly volunteered to take it before he could be informed of the implied consent statute. 7 In short, Officer Weinstein had not even attempted to obtain appellant's consent before appellant voluntarily and expressly consented to take the test -- in fact, he asked to take it. Where a driver asks to have a breath test taken, as occurred here, the implied consent statute on its face has no relevance.

The Court distinguished the case from Thomas v. Town of Marion, 226 Va. 251, 254, 308 S.E.2d 120, 122 (1983), and Durant v. City of Suffolk, 4 Va. App. 445, 448, 358 S.E.2d 732, 734, 4 Va. Law Rep. 121 (1987). Thomas and Durant hold that a suspect cannot legitimately consent to a breath test if (1) he is unlawfully or untimely arrested and if (2) the officer informs the suspect of the provisions of the implied consent law, and if (3) the suspect then consents to provide a breath sample under the mistaken belief that he could be penalized under the implied consent law for refusing to cooperate. Unlike the defendants in Durant and Thomas, appellant initiated the discussion here and, without being informed that he was presumed "to have consented to have samples" of his breath taken under Code 18.2-268.2, appellant told the officer that he "wanted to blow" into the Intoxilyzer. Unlike the officers in Durant and Thomas, Officer Weinstein did not use the implied consent statute to prod appellant into taking the breath test. Therefore, the provisions of Code 18.2-268.2 do not operate to exclude the certificate here.

In addition, appellant never made any objections based on Code 18.2-268.9 requiring the Commonwealth to prove that the certificate of analysis met the requirements of that statute. Moreover, the wording of appellant's question presented in this Court continues to frame the issue here in the same way it was treated by the parties and the trial court at the trial level. For all of these reasons, the provisions of Code 18.2-268.9 do not affect our analysis here. Code 18.2-269 allows a trial court to apply a rebuttable presumption that an accused was under the influence when a breath sample is obtained "in accordance with the provisions of 18.2-268.1 through 18.2-268.12" and when the breath test indicates that the accused had a BAC of .08 or more. Virginia Code 18.2-269 also allows a presumption that the accused is not under the influence of intoxicants if the results indicate a BAC level of .05 or less. But Virginia Code 18.2-269(A)(2) also acknowledges that, if a presumption does not apply, "such facts may be considered with other competent evidence in determining the guilt or innocence of the accused." Clearly, therefore, Code 18.2-269 does not exclude a certificate of analysis simply because the rebuttable presumption does not apply at trial. The certificate here was not "irrelevant," even if the presumption in Code 18.2-269 did not apply, because it still presented information relevant to the factual question of whether appellant was intoxicated while driving (DWI).

These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content.

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