Invalid Virginia arrests and admissibility of certificates of analysis are vital for your DUI defense lawyer to consider

Invalid Virginia arrests occur when a misdemeanor does not take place in front of the law enforcement officer, and where an exception to the foregoing rule does not apply. Va. Code § 19.2-81. As a Fairfax criminal lawyer, I know that among those exceptions is that a police officer “may, within three hours of the alleged offense, arrest without a warrant at any location any person whom the officer has probable cause to suspect of driving or operating a motor vehicle… while intoxicated in violation of § 18.2-266, 18.2-266.1, 46.2-341.24, or subsection B of § 29.1-738 … whether or not the offense was committed in such officer’s presence.” Id. 

Are invalid Virginia arrests the only basis for barring the admission of my DUI certificate of analysis at trial?

Invalid Virginia arrests are not the only basis for barring the admission of your DUI certificate of analysis sat trial. I argue that breath and blood test results are inadmissible at a Va. DWI trial when police tell the defendant that s/he must submit to such testing if without probable cause to believe that the alleged offense has taken place “within three hours” before such testing. Va. Code § 18.2-268.2. Furthermore, in an unpublished 2022 opinion, the Va. Court of Appeals stated: A Va. DWI “certificate of analysis is not admissible, regardless of the defendant’s actual consent, unless the Commonwealth has complied with the requirements of the implied-consent law. Roseborough v. Commonwealth, 281 Va. 233, 238-39 (2011). To be admissible, the Commonwealth had to present evidence that Ibanez was (1) operating a motor vehicle, (2) on a public highway and (3) validly arrested for an offense under Code § 18.2-266, (4) within three hours of the alleged offense.”  Ibanez v. Commonwealth of Va., Record No. 0135-21-3 (Va. App., Jan. 11, 2022) (unpublished).

If the alleged driving did not take place on a highway, argue to bar admitting the certificate of blood alcohol concentration (BAC) analysis

When the driving does not take place in the presence of police, the certificate of analysis is inadmissible if the alleged driving did not take place on a highway. Roseborough v. Commonwealth of Va., 281 Va. 233 (2011). I go further to say that when the arrest is unlawful, that the Va. Court of Appeals already generally has ruled that identity is the fruit of an arrest, so identifying a defendant through invalid Virginia arrests is not admissible in court.  Zimmerman v. Va. , 234 Va. 609 (1988).

Is a gas station parking lot a public highway for purposes of admitting a BAC certificate of analysis?

“Certificates of analysis, ‘when attested by the individual conducting the breath test . . . , shall be admissible in any court” to prove the facts that they contain (i.e., to prove the defendant’s blood-alcohol content). Code § 18.2-268.9(B). But if implied consent is not established, then the “provision[] permitting the certificate of analysis to be admitted into evidence [is] not triggered.’ Roseborough, 281 Va. at 239. One way to vitiate implied consent is to show that a driver was not operating a motor vehicle on a ‘highway, ‘and that is the issue in this case. See Kim, 293 Va. at 319-20.” Coleman v. Va., ___ Va. App. ___ (2026). Is a gas station a highway? Often yes for purposes of arguing invalid Virginia arrests. Id.

Fairfax criminal lawyer Jonathan Katz pursues your best defense against Virginia felony, misdemeanor and DUI prosecutions. For your free initial confidential consultation with Jon Katz about your court-pending prosecution, call us at 703-383-1100, Info@KatzJustice.com and (text) 571-406-7268.