Virginia Criminal and Traffic Law Blog

Unreasonable Refusal Statute Deemed Constitutional

Falling in line with a majority of other states, the Virginia Court of Appeals recently upheld the constitutional validity of the statute criminalizing an unreasonable refusal to submit to a blood or breath test when charged with DWI.  The case of Rowley v. Commonwealth presented a challenge to Virginia Code Section 18.2-268.3 alleging that it violated the protections afforded by the Fourth and Fifth Amendments to the US Constitution. 

Section 18.2-268.3, which is a provision of the Virginia implied consent law, requires an individual arrested on suspicion of DWI to provide a sample of his breath or blood for a determination of his blood alcohol content.  This requirement is imposed by one's operation of a motor vehicle on the highways of the state of Virginia.  By using the roads of Virginia, you are impliedly consenting to the taking of this sample by the police.  A refusal to submit to the test, whether expressly or by actions that prevent the test from being administered, will result in a charge of unreasonably refusing to submit to the test.  A first offense carries with it a 12 month license suspension for which a restricted license is not available.  Upon conviction of a second offense, the court may impose jail time.

In the Rowley case, the defendant argues on appeal that the refusal statute violated his fifth amendment right against self-incrimination.  His argument more or less contended that the state could not compel him to produce evidence against himself by requiring his submission to a blood or breath test.  The Court of Appeals, however, found that one's right against self-incrimination is limited only to testimonial communications, meaning evidence that would be given verbally.  A blood or breath test, according to the court, is non-testimonial in nature, just as fingerprints, voice recordings, and suspect lineups are non-testimonial.  Moreover, the court refused to find that compelled submission to a breath test was transformed into testimonial evidence merely because criminal prosecution was the outcome for failing to comply.

The court in Rowley also determined that the refusal statute did not violate an individual's right against unreasonable searches and seizures under the Fourth Amendment of the US Constitution.   The police typically may not search an individual without a warrant or probable cause, or else the fruits of the search will be deemed inadmissibile as evidence since they resulted from an unreasonable search.  However, a person's consent to a search will obviate the need for a warrant or probable cause, thus allowing the police to conduct a legally effective search.  Because, as stated above, one's use of the roads of Virginia results in an implied consent to the blood or breath test, the court found that the statute compelling such test does not violate the Fourth Amendment.

While the majority of courts have upheld the constitutionality of so-called DUI refusal statutes, this is a perfect example of how DUI prosecution defies legal logic.  To compare the taking of one's blood or breath to fingerprinting or voiceprinting is comparing apples to oranges.  The former is an intrusion into one's body, while the other is not.  One's blood alcohol content is not a physical characteristic that is being displayed in plain view for all to see.  Certainly a person's gait, balance, speech pattern, and other external physical indicators of intoxication are nontestimonial evidence that can be admitted against a defendant.  However, to compel an intrusion into a person's body to acquire scientific evidence of intoxication for the purpose of prosecuting that person, all under the threat of separate prosecution for a failure to comply, falls well within the protections afforded by the Fifth Amendment.  If it walks like a duck, and quacks like a duck.....I guess we must conduct a blood or breath test to make sure it is a duck.

Starting With A Clean Slate - Expungement In Virginia

In a typical week, I will receive several phone calls or email from persons wanting to "expunge" a charge from their criminal record.  Many times this is desired because of a job application, but other reasons include personal dignity, adoption, foster care or other situations that require background checks.  Unfortunately, most of the people I speak to are not eligible for expungement, even though they claim that a charge was "dismissed" against them.  Virginia law has strict requirements for when an expungement of a criminal charge is available to a citizen, and even when available, there is still no guarantee a court will grant it.

So when is someone eligible to have a criminal charge expunged?  Virginia Code Section 19.2-392.2 is the governing statute, and sets forth three situations.  The first is if you are found not guilty of a charge by the court.  The second is if the commonwealth attorney takes a nolle prosequi or the charge is otherwise dismissed against the defendant.  Third, an expungement may be ordered if the defendant is granted an absolute pardon for a crime of which he was unjustly convicted.  The key to remember with all three scenarios is that an expungement will only be available to a defendant who is innocent.

With that being said, some types of misdemanor crimes are dismissed by courts after taking the case "under advisement" for a period of time.  This scenario usually follows a finding by the judge that there is sufficient evidence to make a finding of guilt.  However, instead of convicting and sentencing the defendant, the court may order community service to be completed, restitution to be paid, unsupervised probation, or any number of other conditions.  Following a duration of time set by the court, if all the conditions have been met by the defendant, the court will dismiss the charge against the defendant.  Examples of offenses where this type of arrangement is found include possession of marijuana, domestic or simple assault, and shoplifting. 

As you recall, the expungement statute states that a charge "otherwise dismissed" may be eligible for expungement.  However, the Supreme Court has interpreted the statute as not to include the situation I described above, where a defendant must satisfy certain conditions set by the court in order to achieve a dismissal of the charge against him.  The theory behind this is that expungement is an option only available to innocent persons.  The Supreme Court does not connote innocence to situations in which the court finds there is enough evidence to support a guilty conviction, but allows the defendant an opportunity to make up for the mistake by performing certain acts or remaining out of trouble.

The bottom line with expungement is that it is not an available option if you have been found guilty of an offense, or if you have satisfied certain conditions in order to obtain a dismissal.  Only when a judge declares you not guilty, the commonwealth nolle prosses your case, or you are pardoned for an unjust conviction can you petition the circuit court for an expungement.

If you have been acquitted of a criminal offense or had the charge nolle prossed or dismissed, contact the Law Office of Charles Homiller at (804)523-2999 for information on how to get it erased from your record.   Our experienced criminal defense practice is dedicated to preserving your dignity and livelihood when you have been wrongfully accused of a crime.