Virginia Criminal and Traffic Law Blog

Timing of Convictions Essential for Felony DWI

In Virginia, a third offense driving while intoxicated within a 10 year period is punishable as a felony.  In a recent decision, Stewart v. Commonwealth, the Court of Appeals reversed a Winchester Circuit Court's guilty finding on a felony DWI because the Commonwealth failed to prove that the instant offense was actually a third within 10 years.  The Court of Appeals stressed that the timing element of prior convictions must also be proven beyond a reasonable doubt in order for a felony DWI conviction to stand.

In the Stewart case, the Commonwealth introduced evidence of an arrest warrant for a second offense DWI within 5 years, as well as a circuit dispositional order for a second offense DWI.  However, no evidence was presented that the second offense DWI conviction in circuit court occurred within 5 years of the defendant's first offense DWI.  The problem belying the Commonwealth in this situation was that after a conviction of second offense in general district court, the defendant appealed his case to circuit court.  As a result of this de novo appeal, the defendant was entitled to a brand new trial as if nothing had happened in general district court.  Consequently, the defendant was also required to be rearraigned by the Court on the charge, meaning the official reading of the charge and entry of a plea.  The circuit court dispositional order only reflected a guilty plea to "DWI, 2nd offense" - it did not specify that it had occurred within 5 years of the first conviction.

Because the Commonwealth failed to introduce any other evidence that the defendant pled guilty to and was found guilty of a second offense DWI within 5 years (e.g., DMV record, transcript of circuit court arraignment, etc.), the Court of Appeals determined that the trial court erred in convictin and sentencing the defendant to a third offense (felony) DWI. 

The defendant also alleged that the Commonwealth failed to prove her first conviction occurred in Virginia, and if it did not, that the foreign statute under which she was convicted was substantially similar to Virginia's DWI statute.  The Court of Appeals, though, reaffirmed that a presumption exists in the favor of the Commonwealth that prior convictions are consistent with the Virginia DWI statute.  The defendant therefore bears the burden of proving that a prior conviction is inconsistent with Virginia the Virginia statute.  In the absence of any rebutting evidence, the trial court must presume that prior convictions are admissible for purposes of enhancing DWI penalties.

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.

Court Dismisses DWI Based On Hospital Records

     On Wednesday, January 25, 2006, Henrico County Circuit Court Judge Gary A. Hicks dismissed a charge of driving under the influence because of a flaw in the Commonwealth's evidence.  Prosecutors attempted to prove the defendant's blood alcohol content (BAC) by introducing hospital records made during the course of treatment.  The Commonwealth argued that this records were admissible under Virginia Code Section 19.2-187.02, which permits medical providers to disclose private healthcare records containing blood alcohol results for the purpose of DWI prosecutions.  Charles J. Homiller, attorney for the defendant, argued that the records should not be admissible, or at least not credible, because the statute circumvents Virginia's implied consent law and in no way regulates the collection of blood like the implied consent law does.

     The case involved a defendant who was involved in a single vehicle accident late at night.  When the police arrived on scene, the defendant was already being prepared for transport by paramedics to the hospital.  The defendant had suffered a significant head injury, which required immmediate trauma care attention.  While at the Virginia Commonwealth University Medical Center in Richmond, Virginia, the defendant was treated for his injuries, part of which required the drawing of his blood.  While in the emergency room, the defendant was questioned by Henrico County Police about the accident and his alcohol consumption.  Based on the responses he received from the defendant, as well as the surrounding circumstances, the officer admitted at trial that he believed he had probable cause to arrest the defendant for driving while intoxicated.  However, the officer did not arrest the defendant at that time, even though he was within the three hour window required by the implied consent statute.  When asked why he did not arrest the defendant and have his blood drawn under the implied consent statute, the officer responded that he knew the hospital would draw it, therefore he didn't have to.

     Instead, two and a half weeks after the accident, the officer obtained a search warrant for the defendant's medical records to produce evidence of his blood alcohol content.  Based on that information, the officer proceeded to arrest the defendant for driving while intoxicated. 

     The implied consent statute, which requires a defendant to submit to a blolod or breath test if arrested within three hours of the alleged offense, prescribes certain qualifications and procedures that must be met and followed during the blood collection process.  While a deviation from any of the procedures will not necessarily render the evidence inadmissible, the credibility of that evidence may be called into question.  Additionally, the implied consent law grants the defendant the ability to request an independent analysis of the blood sample to verify the result obtained by the state.  In this case, however,  the implied consent statute was not invoked because the defendant was not arrested within three hours of the alleged offense.

     In issuing his decision, Judge Hicks stated that he was concerned with the lack of evidence concerning the blood collection procedure.  No evidence was presented by the Commonwealth concerning the qualifications of the person drawing and/or analyzing the blood, the procedure used to collect and store the blood, or the time the blood was collected and tested.  The Commonwealth argued that based on 19.2-187.02, there was no requirement that the state put on evidence concerning these issues.  However, Judge Hicks agreed with defense counsel that the manner in which the blood alcohol results were obtained created enough doubt about the reliability of the evidence as to render it inadmissible.

     This decision is important to persons charged with DUI/DWI in the wake of the controversy over the constitutionality of the per se presumption of intoxication.  This holding would disallow the Commonwealth from merely presenting a person's protected medical records as proof of intoxication without providing evidence that the blood was collected in a suitable manner.  Moreover, it would limit the Commonwealth's ability to issue a search warrant for such records and hide behind 19.2-187.02 instead of following the requirements of the implied consent law.