A Virginia DWI arrestee has a tough decision between agreeing to submit to a breath or blood alcohol test, thereby making the police officer’s and prosecutor’s job easier to obtain a DWI conviction for a proven breath or blood alcohol content (BAC) of 0.08 or higher (and risking mandatory jail time if the BAC is proven to be at least 0.15 or if it is proven that this is a subsequent applicable DWI offense within ten years); or to refuse the test and then risk a refusal conviction that brings one year of no driving (and no restricted driving) for a first offense, and three years of no driving plus jail risk for a subsequent offense.

The defenses against a refusal prosecution are several, by attacking the elements of refusal, which are probable cause to arrest for DWI (judges might require that to be argued through a suppression hearing), being asked or told by the police to submit to a breath or blood alcohol test (other than by the handheld preliminary breath test sometimes requested on the street), having the alleged DWI activity take place on a highway, refusing to take the test, and having that refusal be unreasonable. Va. Code § 18.2-268.3; D’Amico v. Virginia, 287 Va. 284, 289, 754 S.E.2d 291 (2014).

On April 13, 2017, the Virginia Supreme Court in a 4-3 decision made clear that the highway element is absent in a refusal prosecution under the following circumstances that arose from a refusal prosecution in the Fairfax County Circuit Court:

“To meet the statutory definition of highway under Code § 46.2-100, a ‘way or place’ must be ‘open to the use of the public for purposes of vehicular travel.’ Here, the presence of several conspicuously posted ‘No Trespassing’ signs establishes that Nathan Hale Drive is not ‘open to the use of the public’ for any reason. Therefore, Nathan Hale Drive cannot meet the statutory definition of highway under Code § 46.2-100. As a result, the implied consent statute had no applicability and Kim was not required to submit a breath sample. Accordingly, we will reverse the judgment of the trial court and dismiss the warrant issued against Kim for unreasonable refusal to submit a breath sample under Code § 18.2-268.3.”

Matthew Alexander Kim v. Virginia, ___ Va. ___ (April 13, 2017).

Of course, the circumstances likely will be few where a person is charged with BAC test refusal on property with no trespassing signs. Consequently, the most key provision of Kim for defending against refusal convictions is arguing that if the roadway did not have unrestricted access to the public, it is not a highway for purposes of Virginia’s refusal statute.

Kim resulted only after Kim had been convicted of refusal both in the General District Court and Circuit Court. Trial judges make on-the-spot decisions without the benefit of months-long deliberations that appellate judges have available, making that one reason alone why trial judges often err in their rulings on the law. Here, Kim called Kim’s Circuit Court judge to task as follows:

“The trial court compounded its mistake by focusing on the lack of evidence that anyone had ever been charged with trespassing for using the roads. In so doing, the trial court equated lack of enforcement with unrestricted access. However, as we explained in Prillaman, ‘[i]t is the right of travel by everyone and not the exercise of the right that establishes a way a public highway.’ 199 Va. at 408, 100 S.E.2d at 9 (emphasis added). Here, the fact that the owners of the apartment complex did not seek to actively enforce the ‘No Trespassing’ signs with regard to motorists does not mean that the public has unrestricted access to the roads of the apartment complex.”

Id.

Many criminal defendants charged both with DWI and refusal are anxious to plead guilty to DWI if that is the only way through plea negotiations to avoid a refusal charge. Fortunately, numerous of my clients charged with refusal and DWI are willing to go to trial rather than to plead guilty to DWI in exchange for dismissing refusal, sometimes with successful results on one or both counts. Kim provides Virginia refusal defendants with further ammunition against such charges.