Are "No Refusal" DUI checkpoints possible in Virginia?

I would like to share with you all the OWI implied consent warning. We were given these cards when I was a reserve officer with an Indiana sheriff's department:

"I have probable cause to believe that you have operated a vehicle while intoxicated. I must now offer you the opportunity to submit to a chemical test and inform you of your refusal to submit to a chemical test will result in the suspension of your driving privileges for one year. If you have at least one previous conviction for operating while intoxicated, your refusal to submit to a chemical test will result in the suspension of your driving privileges for two years. Will you now take a chemical test?"

It is your right to refuse chemical tests.

AFP Vet

I think DUI or DWI laws vary more state to state than gun laws!

True enough, but in regard to the chemical tests and refusal, it should be the same—albeit possibly different suspension terms.

AFPVet said:

True enough, but in regard to the chemical tests and refusal, it should be the same—albeit possibly different suspension terms.

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I really am not well versed in these laws... but it appears from your "statement" above that the refusal - with penalty - is at the roadside. As best I understand in Virginia, the penalty for refusal doesn't kick in until you refuse after arrest...

Is that right? Beuller... Beuller?

TFred

Va code 18.2-268.3

TFred said:

I really am not well versed in these laws... but it appears from your "statement" above that the refusal - with penalty - is at the roadside. As best I understand in Virginia, the penalty for refusal doesn't kick in until you refuse after arrest...

Is that right? Beuller... Beuller?

TFred

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D. A first violation of this section is a civil offense and subsequent violations are criminal offenses. For a first offense the court shall suspend the defendant's privilege to drive for a period of one year. This suspension period is in addition to the suspension period provided under § 46.2-391.2.

If a person is found to have violated this section and within 10 years prior to the date of the refusal he was found guilty of any of the following: a violation of this section, a violation of § 18.2-266, or a violation of any offense listed in subsection E of § 18.2-270, arising out of separate occurrences or incidents, he is guilty of a Class 2 misdemeanor and the court shall suspend the defendant's privilege to drive for a period of three years. This suspension period is in addition to the suspension period provided under § 46.2-391.2.

If a person is found guilty of a violation of this section and within 10 years prior to the date of the refusal he was found guilty of any two of the following: a violation of this section, a violation of § 18.2-266, or a violation of any offense listed in subsection E of § 18.2-270 arising out of separate occurrences or incidents, he is guilty of a Class 1 misdemeanor and the court shall suspend the defendant's privilege to drive for a period of three years. This suspension period is in addition to the suspension period provided under § 46.2-391.2.

TFred said:

I really am not well versed in these laws... but it appears from your "statement" above that the refusal - with penalty - is at the roadside. As best I understand in Virginia, the penalty for refusal doesn't kick in until you refuse after arrest...

Is that right? Beuller... Beuller?

TFred

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palerider116 said:

D. A first violation of this section is a civil offense and subsequent violations are criminal offenses. For a first offense the court shall suspend the defendant's privilege to drive for a period of one year. This suspension period is in addition to the suspension period provided under § 46.2-391.2.

If a person is found to have violated this section and within 10 years prior to the date of the refusal he was found guilty of any of the following: a violation of this section, a violation of § 18.2-266, or a violation of any offense listed in subsection E of § 18.2-270, arising out of separate occurrences or incidents, he is guilty of a Class 2 misdemeanor and the court shall suspend the defendant's privilege to drive for a period of three years. This suspension period is in addition to the suspension period provided under § 46.2-391.2.

If a person is found guilty of a violation of this section and within 10 years prior to the date of the refusal he was found guilty of any two of the following: a violation of this section, a violation of § 18.2-266, or a violation of any offense listed in subsection E of § 18.2-270 arising out of separate occurrences or incidents, he is guilty of a Class 1 misdemeanor and the court shall suspend the defendant's privilege to drive for a period of three years. This suspension period is in addition to the suspension period provided under § 46.2-391.2.

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And Sections A, B and C of that section all refer to having already been arrested.

Which is the point of my question, the Indiana statement provided earlier seems to reference side of the road, probable cause: before arrest.

If I understand correctly, (and why I am asking to clarify) that is a major difference in law between Indiana and Virginia.

TFred

Checkpoints on the public highways as a condition for travel are one the first symptoms of the establishment of outright tyranny.

Government control of the media/press/ speech is another irrefutable symptom.

Forcing people to submit to strip searches for no reason is another.

The government encouraging Citizens to spy and report on each other is another.

But those things could NEVER happen here...


If something doesn't change soon in the US, people like the folks on this forum will find themselves being rounded up and put on trains and buses in our lifetime.

People like Cass Sunstein and Eric Holder will be talking about a Final Solution to the "Liberty Problem" within 24 months--mark my words...

TFred said:

And Sections A, B and C of that section all refer to having already been arrested.

Which is the point of my question, the Indiana statement provided earlier seems to reference side of the road, probable cause: before arrest.

If I understand correctly, (and why I am asking to clarify) that is a major difference in law between Indiana and Virginia.

TFred

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It would appear to be that way. VA requires a conviction before a punishment is imposed. The question is, can you be found not guilty of the DUI and then found guilty of refusing the breath/blood test? I have not seen that happen so far.

palerider116 said:

It would appear to be that way. VA requires a conviction before a punishment is imposed. The question is, can you be found not guilty of the DUI and then found guilty of refusing the breath/blood test? I have not seen that happen so far.

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I guess that would be ironic, but as I read the statute, I don't see any reason why the two must be linked.

TFred

TFred, again, IANAL, but refusing the "field sobriety test" has no penalty but a pissed off officer.

Refusing the admissable in court "official" breathalyzer at the jail is punishable by loss of license and other things. You may also still be tried for DUI.

Again, here is another link from a Va. law firm.

http://www.vatrafficdefense.com/faq_drunkdriving.htm

There is no penalty for refusing to take the roadside breath

TFred said:

I really am not well versed in these laws... but it appears from your "statement" above that the refusal - with penalty - is at the roadside. As best I understand in Virginia, the penalty for refusal doesn't kick in until you refuse after arrest...

Is that right? Beuller... Beuller?

TFred

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In VIRGINIA you can refuse to take the road site breath test without penalty. If arrested and taken in for official breath or blood test, there are penalties for refusal, though they could be fought on the grounds that the arrest was without probable cause.

http://www.vatrafficoffense.com/DUI_Refusal.html

SNIP

Nearly every DUI/DWI case begins with a stop of the individual's vehicle by an officer. After both cars are resting on the side of the road, the officer will approach and make an initial determination as to whether the driver has been drinking. If the officer perceives the odor of an alcoholic beverage coming from the driver as well as other signs of intoxication such as slurred speach and bloodshot eyes, he may ask the driver to exit the car to perform a few "tests."

. . .

Most drivers do not know that they are not obligated to perform these tests which help the officer establish a basis for placing you under arrest and to strengthen his potential DUI/DWI case evidence.

http://www.bobbattlelaw.com/faqs/is...y-penalties-if-i-refuse-to-take-this-test.cfm

SNIP

There is no penalty for refusing to take the roadside breath test like there is for refusing the Breath Test or Blood Test at the police station or hospital. For this reason, many attorneys like Harrisonburg, VA DUI lawyer Bob Keefer advise all their clients to refuse the roadside breath test.

AFPVet said:

"I have probable cause to believe that you have operated a vehicle while intoxicated. I must now offer you the opportunity to submit to a chemical test and inform you of your refusal to submit to a chemical test will result in the suspension of your driving privileges for one year. If you have at least one previous conviction for operating while intoxicated, your refusal to submit to a chemical test will result in the suspension of your driving privileges for two years. Will you now take a chemical test?"

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That's like putting up a sign that says "No Guns".

It does not SUSPEND your privilege to drive. It puts your name in a little database that says they have taken a little slip of paper from you with your name and address on it.

I submit that "suspending" someones driving privileges does at all stop them from driving.

If it did, there would be no code section referring to "driving on a suspended license". The only thing that can keep someone from driving a vehicle is incarceration.

Laws are stupid.

Good link

Mike said:

In VIRGINIA you can refuse to take the road site breath test without penalty. If arrested and taken in for official breath or blood test, there are penalties for refusal, though they could be fought on the grounds that the arrest was without probable cause.

http://www.vatrafficoffense.com/DUI_Refusal.html

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Good link. The more that gun owners know their rights generally, the better equipped they become in handling LEO Encounters.

"Laws are stupid." --- and getting worse?

wylde007 said:

That's like putting up a sign that says "No Guns".

It does not SUSPEND your privilege to drive. It puts your name in a little database that says they have taken a little slip of paper from you with your name and address on it.

I submit that "suspending" someones driving privileges does at all stop them from driving.

If it did, there would be no code section referring to "driving on a suspended license". The only thing that can keep someone from driving a vehicle is incarceration.

Laws are stupid.

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I read this today and thought it might be joke, for about a second. But no, the Chief of Police want the law to get tougher:

Austin Police Chief Art Acevedo wants to create a new criminal offense: “driving while ability impaired.” The problem with the current Texas law prohibiting “driving while intoxicated” (DWI), Acevedo explained to the Austin-American Statesman in October, is that it doesn’t allow him to arrest a driver whose blood-alcohol content (BAC) is below 0.08 percent unless there’s additional evidence of impairment.

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In response, Radley Balko says:

Acevedo’s objections to the legal definition of intoxication highlight the absurdity of drawing an arbitrary, breathalyzer-based line between sobriety and criminal intoxication. But the right solution is not to push the artificial line back farther. Instead we should get rid of it entirely by repealing drunk driving laws.

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Ironically, there are parallels between 'alcohol control' and 'gun control' -- the main parallel I think is that advocates are never satisfied. They want more and more controls over the people. If it saves even one life, isn't it worth it, they exclaim. They willfully ignore the (unintended?) consequences of their controlling behavior. The result is that we are worse off and less free than before, and usually less safe as well.

..............................Ironically, there are parallels between 'alcohol control' and 'gun control' -- the main parallel I think is that advocates are never satisfied. They want more and more controls over the people. If it saves even one life, isn't it worth it, they exclaim. They willfully ignore the (unintended?) consequences of their controlling behavior. The result is that we are worse off and less free than before, and usually less safe as well.

This is very well said and expresses my views exactly. Would like to meet you some day, my firend!

riverrat10k said:

..............................Ironically, there are parallels between 'alcohol control' and 'gun control' -- the main parallel I think is that advocates are never satisfied. They want more and more controls over the people. If it saves even one life, isn't it worth it, they exclaim. They willfully ignore the (unintended?) consequences of their controlling behavior. The result is that we are worse off and less free than before, and usually less safe as well.

This is very well said and expresses my views exactly. Would like to meet you some day, my firend!

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You probably have!

quote & link from VA DMV website

TFred said:

I guess that would be ironic, but as I read the statute, I don't see any reason why the two must be linked.
TFred

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http://www.dmv.virginia.gov/webdoc/pdf/dmv168.pdf
"You do not have the option of requesting a blood test instead of a breath test for an alcohol-related offense. If you have had a prior DUI conviction or conviction of breath test refusal, you will be charged with a Class 2 misdemeanor for refusing to take a blood alcohol test. If you have had two DUI convictions or conviction of breath test refusal within a ten-year period, you will be charged with a Class 1 misdemeanor. Both offenses carry a three-year license suspension.
If you are convicted of a breath test refusal, the court will suspend your driving privilege for one year. If you are also convicted of DUI, the DUI driver’s license revocation period will run consecutively with the breath test refusal revocation. You are not eligible for a restricted driver’s license during the suspension for a breath test refusal."

Mike said:

In VIRGINIA you can refuse to take the road site breath test without penalty. If arrested and taken in for official breath or blood test, there are penalties for refusal, though they could be fought on the grounds that the arrest was without probable cause.

http://www.vatrafficoffense.com/DUI_Refusal.html

SNIP

Nearly every DUI/DWI case begins with a stop of the individual's vehicle by an officer. After both cars are resting on the side of the road, the officer will approach and make an initial determination as to whether the driver has been drinking. If the officer perceives the odor of an alcoholic beverage coming from the driver as well as other signs of intoxication such as slurred speach and bloodshot eyes, he may ask the driver to exit the car to perform a few "tests."

. . .

Most drivers do not know that they are not obligated to perform these tests which help the officer establish a basis for placing you under arrest and to strengthen his potential DUI/DWI case evidence.

http://www.bobbattlelaw.com/faqs/is...y-penalties-if-i-refuse-to-take-this-test.cfm

SNIP

There is no penalty for refusing to take the roadside breath test like there is for refusing the Breath Test or Blood Test at the police station or hospital. For this reason, many attorneys like Harrisonburg, VA DUI lawyer Bob Keefer advise all their clients to refuse the roadside breath test.

Click to expand...

Is there a law cite for the no penalty roadside test?

Ask, and ye shall receive:

§ 18.2-267. Preliminary analysis of breath to determine alcoholic content of blood.

A. Any person who is suspected of a violation of § 18.2-266, 18.2-266.1, subsection B of § 18.2-272, or a similar ordinance shall be entitled, if such equipment is available, to have his breath analyzed to determine the probable alcoholic content of his blood. The person shall also be entitled, upon request, to observe the process of analysis and to see the blood-alcohol reading on the equipment used to perform the breath test. His breath may be analyzed by any police officer of the Commonwealth, or of any county, city or town, or by any member of a sheriff's department in the normal discharge of his duties.

B. The Department of Forensic Science shall determine the proper method and equipment to be used in analyzing breath samples taken pursuant to this section and shall advise the respective police and sheriff's departments of the same.

C. Any person who has been stopped by a police officer of the Commonwealth, or of any county, city or town, or by any member of a sheriff's department and is suspected by such officer to be guilty of an offense listed in subsection A, shall have the right to refuse to permit his breath to be so analyzed, and his failure to permit such analysis shall not be evidence in any prosecution for an offense listed in subsection A.

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Thanks, TD, knew it was there somewhere!