Are "No Refusal" DUI checkpoints possible in Virginia?

Repeater · Dec 30, 2010

Certainly authoritarian U.S. Transportation Secretary Ray LaHood is pushing the program:

"We know that refusing a breathalyzer is a persistent, ongoing problem," said U.S. Transportation Secretary Ray LaHood. "There's a loophole here."

LaHood said the federal government is advising law officers to use a search warrant to quickly obtain a blood test from drivers who have refused to take a breath test.

"We know people are going to try and find ways to get out of very bad, dangerous behavior," he said, "and we're not going to let that happen."

This Virginia Beach personal injury law firm considers whether such a program will be implemented in Virginia:

Will “No Refusal” Policy for Suspected Drunk Drivers Make Its Way to Virginia?

The federal government is urging more states to consider implementing the “no refusal” policy. Transportation Secretary Ray LaHood said, "These are not new laws or regulations. They are efforts to streamline existing procedures while protecting due process to ensure that drunk drivers can't skirt the consequences of their actions."

So will this policy make its way to Virginia (VA)? No one knows for sure. Critics of the policy believe that not allowing people to refuse a Breathalyzer violates their constitutional rights and raises questions about how the blood drawn from the suspected drunk driver is handled.

These are legitimate concerns that will need to be addressed if more states, including VA, decide to adopt some version of this policy.

A Richmond TV station discusses the idea:

Drivers giving blood under DUI "No Refusal" Policy?

The no refusal policy would allow police to get a search warrant from on-call judges so they can take blood samples from suspected drunk drivers who refuse breathalyzers.

"I think it's a great idea because I know you don't drink and drive and neither do I," said M.A.D.D. spokesperson, Carter Hill.

"If I was stopped by a police officer I'd gladly give him a field sobriety test or a breath test," said Hill.

The problem is, this is exactly the kind of 'program' that allows the police to get into your business, including opportunities for frisks, searches, and gun seizures.

This could even happen to drivers who carry but who are not drinking or under the influence. If the LEO asks for a breath test, can you afford to say no? What if the LEO then asks for consent to search for alcohol, drugs, ... or weapons? Can you still afford to say no?

If any Virginia locality announces such a program, please let us know.

user · Dec 30, 2010

The critical phrase was, "get a search warrant". With a warrant issued by a judicial officer on the basis of a written affidavit stating an articulable factual basis for probable cause, it's legal. (Of course, in Virginia, magistrates don't have to be lawyers, much less actual judges. They do get some training, but they don't generally really understand "probable cause" or the Fourth Amendment.)

Without the warrant, obstruction of a public highway constitutes a public nuisance.

JamesCanby · Dec 30, 2010

user said:
The critical phrase was, "get a search warrant". With a warrant issued by a judicial officer on the basis of a written affidavit stating an articulable factual basis for probable cause, it's legal. (Of course, in Virginia, magistrates don't have to be lawyers, much less actual judges. They do get some training, but they don't generally really understand "probable cause" or the Fourth Amendment.)

Without the warrant, obstruction of a public highway constitutes a public nuisance.

So, on what basis can a LEO request a breathalyzer test? If there is a DUI checkpoint, can EVERYone be required to blow into the tube just to make sure the LEOs don't miss any more or less obvious cues about who might have been drinking?

riverrat10k · Dec 30, 2010

Correct me if I am wrong, User

My understanding is that I can refuse a field sobriety test under the 5th.

The officer can then choose to arrest me.

If I refuse the statutorily legal breathalyzer at the police station, I can lose my DL under another law. No DUI but also, instant license revocation.

Thanks, and will see you Tues.

TFred · Dec 30, 2010

I'm sure I'm in the same boat as others... I always thought it was illegal to refuse a test. I looked through the LIS site, and it appears that the law against refusal only kicks in after you are arrested.

Sounds like this issue (the subject of this post) is trying to move that requirement back to require submission in the event of suspicion only, and nation-wide.

Is that a fair assessment?

TFred

riverrat10k · Dec 30, 2010

TFred, I am pretty sure my post above is correct, but I am looking for someone to verify.
From this attorneys web site:

http://www.bobbattlelaw.com/library...l-in-virginia-virginia-dui-defense-lawyer.cfm

"Why must I take a breath test?

When you apply for a driver's license in Virginia, you automatically agree to submit to a breath test if an officer asks you to do so. In fact, this is written into the papers that you sign when you are issued your driver's license. In short, the fine print states that if you are pulled over for a traffic violation, you must comply with the police officer's requests. This is typically referred to as Virginia's implied consent law.

Therefore, while you may refuse a breath test at the scene, if you refuse to take a breathalyzer or blood test at the police station, you will be in direct violation of Virginia's implied consent law. This violation will have its own penalties above any consequences you may face for being convicted of a Virginia DUI.

If you are charged with a DUI and for violating Virginia's implied consent law, you should call a Virginia DUI defense attorney to discuss your options for fighting the charges."

Just one example from lawyers web sites. Refuse in the field, make the cop arrest you, submit at the station, has always been the advice I see.

t33j · Dec 30, 2010

riverrat10k said:
Refuse in the field, make the cop arrest you, submit at the station, has always been the advice I see.

I understand why it might be desirable to follow the advice you've copied here, but I seem to be missing something. Why couldn't a cop arrest after a refusal and force a breath test "in the field", instead of taking someone to a station to do the same thing.

TFred · Dec 30, 2010

riverrat10k said:
TFred, I am pretty sure my post above is correct, but I am looking for someone to verify.

[snip]

Yes, I didn't mean to imply that you were incorrect... I was just saying that my apparently incorrect assumption all these years was that you could not refuse a breath test at any time. But what I found was § 18.2-268.3. Refusal of tests; penalties; procedures., which seems to limit the penalty for refusal to only when you have actually been arrested, not merely stopped at a check-point, or even pulled over for suspicious driving.

I guess this prevents the LEOs from using a breath test as a fishing rod.

TFred

swinokur · Dec 30, 2010

I read todat that a state (FL I believe) will have a judge at the checkpoint to issue a search warrant if needed. I need to confirm this however.

Mike · Dec 30, 2010

riverrat10k said:
My understanding is that I can refuse a field sobriety test under the 5th.

The officer can then chose to arrest me.

No - arrest can be made only upon probable cause - the purpose of the field test is to garner probable cause to arrest and then the legal right to demand breath test.

Why do the field test when the only thing it can do is give the officer evidence to use against you?

riverrat10k · Dec 30, 2010

."Can't find the cite, but my understanding is that only certain machines are legel evidence in court. The field breath tests are not evidence of DUI but give the officer probable cause to take you downtown and get the official test, and can also be used against you, but are not in and of themselves proof of BAC or DUI.

My understanding is the field test is just one more bit of evidence against you, and you should decline. Imagine court, what is more damning? "He smelled of alcohol, blew a .09 on the field test , failed the heel and toe, failed nystygmus, so I arrested him..." or "he smelled of alcohol and refused the field test so I arrested him ."

The old laws used to give the accused the choice of blood or breath. Chose blood and go to MCV on a Saturday night and wait awhile, then at the sight of needle, change mind for fear of needles and get taken back to the station for breath----total elapsed time from time of stop 1-2hours and 1 to 2 ozs. or alcohol burned off. Maybe enough to go under the limit. They changed the law about choice I believe.

riverrat10k · Dec 30, 2010

Again to clarify, if you refuse the "official" BAC test, it results in automatic license revocation and other penalties. It is also still possible to be convicted of DUI on other evidence ---"Yes, your honor, he stunk of booze, drove his car through that house and claimed he was a roost.er, then refused the field tests." Still a much more difficult DUI case.

Does this thread need to go to general or social?

riverrat10k · Dec 30, 2010

Right, Mike, I think we agree. The officer must then be prepared to offer up other probable cause (odor, swerving, slurred, etc) as PC and THEN chose to arrest or not. Recorders are your friend.

I was unclear in my earlier post for brevity.

swinokur · Dec 31, 2010

user said:
The critical phrase was, "get a search warrant". With a warrant issued by a judicial officer on the basis of a written affidavit stating an articulable factual basis for probable cause, it's legal. (Of course, in Virginia, magistrates don't have to be lawyers, much less actual judges. They do get some training, but they don't generally really understand "probable cause" or the Fourth Amendment.)

Without the warrant, obstruction of a public highway constitutes a public nuisance.

Tampa has a judge at the checkpoint

http://forum.opencarry.org/forums/showthread.php?84710-quot-No-Refusal-quot-DUI-Checkpoints-Tampa

Thundar · Dec 31, 2010

riverrat10k said:
TFred, I am pretty sure my post above is correct, but I am looking for someone to verify.
From this attorneys web site:

http://www.bobbattlelaw.com/library...l-in-virginia-virginia-dui-defense-lawyer.cfm

"Why must I take a breath test?

When you apply for a driver's license in Virginia, you automatically agree to submit to a breath test if an officer asks you to do so. In fact, this is written into the papers that you sign when you are issued your driver's license. In short, the fine print states that if you are pulled over for a traffic violation, you must comply with the police officer's requests. This is typically referred to as Virginia's implied consent law.

Therefore, while you may refuse a breath test at the scene, if you refuse to take a breathalyzer or blood test at the police station, you will be in direct violation of Virginia's implied consent law. This violation will have its own penalties above any consequences you may face for being convicted of a Virginia DUI.

If you are charged with a DUI and for violating Virginia's implied consent law, you should call a Virginia DUI defense attorney to discuss your options for fighting the charges."

Just one example from lawyers web sites. Refuse in the field, make the cop arrest you, submit at the station, has always been the advice I see.

There is nothing on the drivers license form from DMV. There is no "fine print" on the document. That is BS! Now where is my flag?

Link: http://www.dmv.state.va.us/webdoc/pdf/dl1p.pdf

Repeater · Dec 31, 2010

Mike said:
No - arrest can be made only upon probable cause - the purpose of the field test is to garner probable cause to arrest and then the legal right to demand breath test.

Why do the field test when the only thing it can do is give the officer evidence to use against you?

Well right. Further, the concern would be that the officer could conduct a search of the vehicle or the person, looking for drugs or weapons.

bom1911 · Dec 31, 2010

Thundar said:
There is nothing on the drivers license form from DMV. There is no "fine print" on the document. That is BS! Now where is my flag?

Link: http://www.dmv.state.va.us/webdoc/pdf/dl1p.pdf

I don't see any fine print either. 18.2-268 has some details of implied consent.

http://leg1.state.va.us/000/cod/18.2-268.2.HTM

Repeater · Dec 31, 2010

Big IF - no fine print

bom1911 said:
I don't see any fine print either. 18.2-268 has some details of implied consent.

http://leg1.state.va.us/000/cod/18.2-268.2.HTM

... if he is arrested for violation of § 18.2-266, 18.2-266.1, or subsection B of § 18.2-272 or of a similar ordinance within three hours of the alleged offense."

What LaHood is pushing for is testing at the scene of the alleged incident, before there is any arrest.

Now it's being done in Texas, too:

"They're saying, 'You give us a breath specimen or you give us a blood specimen or we're going to take it anyway,'" George Scharmen, a criminal defense lawyer.

Scharmen said with the district attorney's refusal to take plea bargains in DWI cases, the new policy won't do anything but stretch out cases. He said he has some cases that have waited five years to get to court.

"You have motions to suppress breath and blood draws on the basis of a bad search warrant, on the basis of involuntariness," Scharmen said.

"If they don't have enough evidence against you to make a solid case, how is what little they have enough for a judge to sign a warrant?" added Balagia.

Plus, there's warrantless 'search incident' authority to worry about.

Mike · Dec 31, 2010

riverrat10k said:
."Can't find the cite, but my understanding is that only certain machines are legel evidence in court. The field breath tests are not evidence of DUI but give the officer probable cause to take you downtown and get the official test, and can also be used against you, but are not in and of themselves proof of BAC or DUI.

My understanding is the field test is just one more bit of evidence against you, and you should decline.

Of course - especially at a check point where you already refuse to talk, refuse to do the perp walk doggie tricks stuff, etc. Refuse the field breath test too - no obligation to take it - and when you get to the station after arrest, and blow 0.0 on the official meter - you can complain to your county supervisor for the police wasting money on road blocks and also sue for damages for arrest without probable cause - and you just caused a big hold up at the road block too - but I am talking about a 100% law abiding non-drinking person here who objects to road blocks - if you do drink and drive, even a little, then you might not want to go down this path - consult a VA barred lawyer on your individual circumstances prior to drinking or driving!

riverrat10k · Dec 31, 2010

Ianal

All posts are just my individual opinion and interpretation of the laws as read by me. In no way should ANY of my posts be construed as legal advice.

Are "No Refusal" DUI checkpoints possible in Virginia?

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