Supreme Court Case and Amended Statute Bolster VA Implied Consent Laws

July 01, 2011

Virginia is well known for its strict implied-consent law, which requires drivers to submit to chemical tests of their breath or blood when stopped on suspicion of drunk driving. When drivers refuse to give breath or blood samples, they automatically lose their driving privileges for at least one year, on top of any further penalties for DUI convictions.

A recent case from the Supreme Court of Virginia and a newly-amended statute both show the seriousness with which Virginia treats its implied consent laws. Consequently, anyone accused of chemical-test refusal or arrested on suspicion of DUI will greatly benefit from the assistance of DUI attorney who defends his or her clients with equal vigor.

Test Refusal Consequences

According to Virginia Code Section 18.2-268.3(D), the first time drivers unreasonably refuse to submit to breath or blood tests to determine intoxication levels is a civil offense that causes the loss of driving privileges for one year. If drivers refuse chemical tests in violation of Virginia's implied-consent law for a second time within a 10-year period, they are criminally charged with a Class 2 misdemeanor, which results in the forfeiture of their driving privileges for three years. A third infraction within a 10-year period is considered a Class 1 misdemeanor, which is also punishable by a three-year driving suspension.

All test refusals are classified as misdemeanors in the eyes of the courts, as recently emphasized by the Supreme Court of Virginia in a case that challenged whether criminal prosecution is permissible for a first-time chemical test refusal: Kozmina v. Commonwealth of Virginia.

Kozmina v. Commonwealth of Virginia

A Virginia resident, Anastasia Kozmina, refused a chemical test and was found guilty of violating Virginia's implied-consent law. She appealed her conviction, arguing that the Commonwealth's Attorney who prosecuted her case did not have authority to do so because a first-time chemical test refusal is a civil offense, not a criminal offense.

When the case ultimately reached the Supreme Court of Virginia, the court declared that Commonwealth's Attorneys do have authority to prosecute civil offenses for first-time chemical test refusal, citing the test-refusal statute that directs all refusals to be treated as misdemeanors. Therefore, the ruling said that this law indirectly grants authority to Commonwealth's Attorneys to prosecute first-time chemical test refusal cases, because the Commonwealth's Attorneys prosecute misdemeanors.

In a footnote, the court stated that it was aware of pending legislation on the issue, and almost two weeks after the ruling, Virginia Governor Bob McDonnell signed into law a bill that resolved the matter legislatively.

Enforcing Test-Refusal Penalties

On March 14, 2011, a proposed amendment to statute Section 15.2-1627 became law. The statute addresses the duties of Commonwealth's Attorneys and their assistants, and a clause granting them explicit permission to "enforce the provisions of subsection D of Section 18.2-268.3" was added through the amendment. While this new provision does not change how implied-consent violations are prosecuted, it more clearly defines Virginia's stance that even civil offenses for first-time chemical test refusals are serious matters.

Knowing the Law

Many drivers think that refusing to submit to a Breathalyzer or blood-alcohol test -- even if it violates Virginia's implied-consent law -- is better than being arrested and charged with DUI. However, regardless of whether a driver is charged with a civil offense or a Class 1 or 2 misdemeanor for violating the implied-consent law, refusals are prosecuted in same manner as minor criminal infractions.

If you were recently stopped for drunk driving and refused chemical testing, or if you were arrested on suspicion of DUI, contact a Virginia DUI attorney immediately to discuss your case and review your legal rights and options.

Article provided by John J. Rice, Attorney & Counselor at Law
Visit us at www.johnjrice.com