Virginia DUI Punishment 18.2-266 Fairfax County Prince William Loudoun Beach

Virginia DUI Punishment 18.2-266 Fairfax County Prince William Loudoun Beach

Taylor v. Commonwealth (Va.Ct. App. Mar. 16, 2010)

At her trial, defendant testified she never told Officer she had taken codeine pills. She also denied making the remarks the officer claimed she made at Norfolk General Hospital. She failed the field sobriety tests, defendant testified, because of gravel on the road and pain from an infected tooth. A physician testified on her behalf that, as a general matter, physical pain could affect the central nervous system and cause both dizziness and a loss of balance. Sitting as fact finder, the trial court rejected defendant's testimony and found her guilty of driving under the influence of a narcotic under Code 18.2-266(iii), a second or subsequent conviction. The trial court convicted defendant of driving under the influence of narcotics in violation of Code 18.2-266 and punished her pursuant to Code 18.2-270(B)(2), which governs repeat DUI convictions between five and ten years after a prior offense either under Virginia law or any "substantially similar laws of any other state . . . ." Code 18.2-270(E). Defendant was convicted in 2001 under California's DUI statute. Defendant contends on appeal California's DUI statute is not substantially similar to Virginia law because the California statute creates a "rebuttable presumption" of alcohol intoxication when the blood alcohol concentration (BAC) equals or exceeds .08%. The BAC limit under Virginia law, Defendant continues, creates only a permissible inference. Defendant claims this difference makes the statutes dissimilar for purposes of Code 18.2-270(E)'s recidivism provision.

The "substantially similar" standard under Code 18.2-270(E) does not require the statutes to be exact replicas of each other. They merely must be similar (not identical) in a substantial (not insubstantial) way. The Court found California's DUI statute substantially similar to Virginia's DUI statute. In Virginia, BAC results can create "rebuttable presumptions" applicable to each subset of DUI convictions under Code 18.2-266. California law also employs rebuttable presumptions triggered by BAC test results. In neither Virginia nor California are the BACpresumptions mandatory or conclusive. The trial court, therefore, did not err in treating defendant's California DUI conviction as a predicate offense for the recidivism enhancement to her punishment under Code 18.2-270(B)(3).

Defendant argued on appeal Officer's failure to obtain a blood test requires that her DUI conviction be reversed. Revised multiple times, the current version of the implied consent statute imposes no obligation on the arresting officer to provide either a blood or a breath test. That conclusion is particularly true where, as here, the officer arrests a driver for driving under the influence of drugs in violation of clause (iii), (iv), or (v) of Code 18.2-266. In such cases, the arrestee "may be required to submit to a blood test" under Code 18.2-268.2(C). Emphasis added.) Nothing in the implied consent statute imposes a mandatory duty on an arresting officer to obtain blood testing for drivers suspected of being under the influence of drugs.

As to the sufficiency of evidence, the court observed that in this case, defendant admitted she ingested four to five unprescribed narcotic pills prior to getting behind the wheel of her vehicle. She drove well below the posted speed limit and swerved twice between the traffic lane and the shoulder. When Officer activated his emergency lights and siren, defendant pulled into someone's residential driveway claiming it was her own. She overshot the driveway leaving the vehicle teetering on three wheels and suspended on the wall of the driveway. She appeared to Officer Allison to be intoxicated, disoriented, confused, and unsteady on her feet. Taylor was incapable of performing two field sobriety tests. These circumstances provided an ample evidentiary basis for convicting defendant of driving "under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle" in violation of Virginia DUI Code 18.2-266(iii). Defendant's observable manner, disposition, speech, muscular movement, general appearance or behavior, proved she was driving under the influence of narcotics.

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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