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When judges rule 6-5 on a defendant’s offer to take a breathalyzer test

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Image from National Institute of Standards & Technology.

An officer arrested a man for DWI on private property, and was not sure whether he would mention the possibility of taking a breathalyzer test, not knowing whether Virginia’s implied consent law for taking a breathalyzer test applied. After the defendant’s arrest but before the officer mentioned any breath test, the defendant offered to take a breathalyzer test:

When they arrived at the detention center, as the officer was reading the Miranda warnings to him, appellant “brought the subject up and said that he was willing to blow and he wanted to blow.” Up to that point, the officer had not decided whether he would even bring up the breath test, as he was not sure that the implied consent law applied when, as here, a suspect was arrested on private property. However, as the officer put it, appellant “made the decision” for him when appellant volunteered to take the test after being informed of his Miranda rights. Officer Weinstein administered the test, appellant blew into the Intoxilyzer, and the breath test resulted in a BAC reading of .09.

Roseborough v. Virginia, ___ Va. App. ___ (Feb. 16, 2010).

The Virginia Court of Appeals ruled 6-5 to affirm Mr. Roseborough’s conviction, concluding:

We find the officer did not need to resort to the implied consent law to obtain a breath sample because appellant explicitly asked to take the breath test without being informed about the implied consent statute. Thus, as the officer did not rely upon Code § 18.2-268.2(A) to obtain the sample, that statute was irrelevant here and did not require the exclusion of the certificate of analysis.

We find the trial court did not err in admitting the certificate into evidence, and, therefore, we affirm appellant’s conviction.

The Roseborough dissent responded:

Because the accident did not occur on a “highway of the Commonwealth,” the statutory exception to Code § 19.2-81 did not apply, making appellant’s warrantless arrest for driving while intoxicated invalid, as it did not occur in the presence of the arresting officer.28 Therefore, the certificate of analysis of appellant’s breath test was not administered pursuant to Virginia’s implied consent statute, and the trial court erred in admitting it into evidence on that basis.

In any event, one moral of the story is not to offer police things they do not request, let alone offering them things they do request.