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Virginia DWI Defense – The intersection of Birchfield, Wolfe, D’Amico & § 18.2-268.3

Virginia criminal attorney on the state of affairs with blood testing and refusal prosecutions

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Here is the current Virginia state of the law for taking blood draws of DWI suspects without a search warrant:

  • Virginia statutory law tells police to advise DWI arrestees who refuse breath or blood tests of alcohol and drugs, of the criminal and civil penalties for such unreasonable refusal. Va. Code § 18.2-268.3. An unreasonable refusal conviction is available without such penalties being told to an arrestee who does not communicate a refusal to submit to such a test.  D’Amico v. Virginia, 287 Va. 284, 289, 754 S.E.2d 291 (2014) (see here, as well).
  • In 2016, the United States Supreme Court ruled that in DWI/DUI cases (1) breath tests can be obtained as searches incident to arrest, with no search warrant required and permitting criminal penalties for refusing a breath test, and (2) refusal to submit to a blood test cannot be criminalized, and “consent” to a blood test can be challenged if the police warned the arrestee that blood test refusal risks criminal penalty(ies). Birchfield v. North Dakota, 136 S.Ct. 2160 (2016).
  • In December 2016, the Virginia Court of Appeals said that a DWI arrestees silence is sufficient to act as consent to submit to a blood alcohol test. Of course, Wolfe does not diminish a DWI arrestee’s right under Birchfield to challenge whether s/he consented to a blood test if the police first warned the arrestee that a blood test refusal risks criminal penalties. Wolfe v. Virginia, ___ Va. App. ___ (Dec. 13, 2016).

The Virginia Lawyers Weekly (available only by subscription) on December 15, 2016, reported on a first draft (not a bill) of legislation provided by Delegate David Albo, whose law practice includes criminal defense, that “would eliminate criminal penalties for blood refusal… Refusal also could be used as substantive evidence in a DUI trial… The proposed legislation would remove the term ‘unreasonably’ from the refusal statute.”

Clearly, it is a good thing to end criminal penalties for blood refusal in DWI cases. Criminal penalties should also be eliminated for breath testing refusal in DWI cases. It is not a good idea for breath or blood test refusal to be admissible in evidence in a DWI trial; such testing is intrusive and should be addressed at a separate and subsequent refusal trial.

Making breath and blood test refusal in and of itself unlawful is worse than the current statutory burden of proof on the prosecution that the refusal be unreasonable, no matter how vague and over broad might be the term “unreasonable”, because a refusal acquittal is more possible when the prosecutor has the burden to prove not only that the arrestee refused the test, but also that it was unreasonable.

Better yet would be for Virginia not to make breath and blood testing refusal a legal offense at all.