Image from National Institute of Standards & Technology.

Last year, I blogged about a 6-5 Virginia intermediate appellate court opinion affirming a drunk driving conviction where the DWI was allegedy committed on private property not used as a thoroughfare, and not committed in the presence of a police officer.

Today, Virginia’s highest court reversed, saying:

A warrantless arrest for a misdemeanor is invalid unless the offense was committed in the presence of the arresting officer, or unless the arrest falls within one of the exceptions enunciated in Code § 19.2-81. Penn v. Commonwealth, 13 Va. App. 399, 404-05, 412 S.E.2d 189, 192 (1991), aff’d, 244 Va. 218, 420 S.E.2d 713 (1992).

The single-vehicle accident in the present case occurred on or beside a private road in a gated, guarded residential complex. The Commonwealth makes no contention that the road was “open to the use of the public for purposes of vehicular travel." Consequently, the exceptions to the warrant requirement contained in Code § 19.2-81 do not apply. Officer Weinstein, therefore, made an invalid warrantless arrest for a misdemeanor not committed in his presence. Because Roseborough was not validly under arrest for violation of Code § 18.2-266 when his breath was tested, the implied consent law did not apply and its provisions permitting the certificate of analysis to be admitted into evidence were not triggered.

The Court of Appeals held that the officer did not need to rely on the implied consent law because Roseborough took the breath test voluntarily at the police station. However relevant his willingness may have been to the administration of the test, we consider it irrelevant to the question of the certificate’s admissibility into evidence. That question of admissibility depended entirely upon the applicability of the implied consent law. For the reasons stated, the Commonwealth was unable to rely on that law in the circumstances of this case.

Conclusion: The circuit court erred in overruling Roseborough’s objection to admission of the certificate of analysis into evidence at trial and the Court of Appeals erred in affirming the conviction.

Roseborough v. Virginia, ___ Va. ___ (Jan. 13, 2011).