Breath test and blood test refusal convictions are unavailable without trial proof of a valid arrest

Breath test refusal and blood test refusal are an offense that often is charged along with Virginia DUI prosecutions, when the DWI defendant declines to submit to such alcohol testing. As a Fairfax DWI defense lawyer, I am delighted that the Virginia Supreme Court this month confirmed that probable cause to arrest for DUI is a required element that the prosecution must prove at trial before obtaining such a conviction. This sharply split 4-3 Virginia Supreme Court decision in Green lays to rest the view of those trial judges that legality of the arrest must be raised by a pretrial motion. Green v. Commonwealth of Virginia, ___ Va. ___ (April 15, 2021).

Will defendants appealing breath test refusal convictions have two bites of the apple to challenge probable cause to contest their arrest?

Green proceeded to a Circuit Court trial as a bench trial without a jury. Nevertheless, the language of Green supports allowing Virginia breath test and blood test refusal defendants to challenge probable cause to arrest them for DUI both at the pretrial motions stage and trial stage. That amounts to two bites at the apple to challenge this critical aspect of refusal prosecutions on the road to enhancing the defendant’s chances of victory.

Will the breath test refusal defendant sometimes want to stipulate to a lawful arrest?

The elements of refusal to submit to a breath test or blood test for alcohol are arrest on probable cause for a Virginia DUI violation, refusal to submit to such testing, and the refusal must be unreasonable. If the defense expects a barely existent chance of winning on the first element, the defense may simply choose to challenge the arrest pretrial, and, if that challenge loses, not challenge probable cause before the jury if the evidence leading up to the arrest may be so distasteful to the jury as to prejudice the jurors away from a refusal acquittal.

Will the Virginia Supreme court update Green to bar the two bites at the apple?

Because Green had a bench trial, the Green majority in the Virginia Supreme Court may not have fully considered the two bites at the apple that Green presents breath test refusal and blood refusal defendants to challenge the legality / probable cause of their arrest both pretrial and during a jury trial or bench trial. Whether or not Green ends up forcing defendants to choose between challenging the arrest pretrial or at trial, the two bites at the apple are the current law in Virginia.

Fairfax DUI lawyer Jonathan Katz has successfully defended hundreds of people charged with DUI and repeatedly takes such cases to trial. Learn about your defenses and strategic possibilities by calling 703-383-1100 to schedule a free in-person consultation with Jon about your court-pending case.