Are "No Refusal" DUI checkpoints possible in Virginia?

[TFred]

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.

Considering that Virginia generally does not write laws telling you what you can do (such as openly carry a firearm), this would seem to be a rare and odd exception...

Interesting that the GA thought that it was necessary to do so.

TFred

 

[jmb_nova]

Buddy of mine at work has a son who just got a DUI right after Halloween. Long story short, he blew a .13 and ended up serving 5 days in jail.

Heres the interesting thing... When they went to talk to lawyers (4) my buddy said that they all gave the same piece of advice for 'future stops'. They all said basically to keep an unopened beer in the car and if you are pulled over (while drunk) or stopped at a dui checkpoint, turn the car off, thrwo the keys on the floor, open the beer and take a drink. They all said this automatically negates the field test and they cant arrest you for DUI because you werent operating the vehicle.

Not really what i was expecting to hear about the situation but I thought it was interesting enough to write it here in response to this thread and see what you guys think.

 

[wylde007]

Your buddy needs a new lawyer(s).

 

[peter nap]

Your buddy needs a new lawyer(s).

I agree! That old wives tale has been around since I was a kid....and that was when you needed an opener to open a can of beer.

 

[dbc3804]

I agree! That old wives tale has been around since I was a kid....and that was when you needed an opener to open a can of beer.

And now that I'm an old fart, I need that opener again. This time to get the twist-off caps off of the bottle.

 

[riverrat10k]

Those are some dumb ass lawyers. The key is Don't Drink and Drive or drink very little. If challenged, delay the official breath test as long as possible in order to burn off excess alcohol. Just sayin'. If you are really drunk, well, it is still a version of "don't talk to the cop". Don't do that!

 

[CHILINVLN]

Buddy of mine at work has a son who just got a DUI right after Halloween. Long story short, he blew a .13 and ended up serving 5 days in jail.

Heres the interesting thing... When they went to talk to lawyers (4) my buddy said that they all gave the same piece of advice for 'future stops'. They all said basically to keep an unopened beer in the car and if you are pulled over (while drunk) or stopped at a dui checkpoint, turn the car off, thrwo the keys on the floor, open the beer and take a drink. They all said this automatically negates the field test and they cant arrest you for DUI because you werent operating the vehicle.

Not really what i was expecting to hear about the situation but I thought it was interesting enough to write it here in response to this thread and see what you guys think.

Do us a favor - test this theory out and let us know how it works out for you. I'm willing to bet, not so well.

 

[NovaCop]

Do us a favor - test this theory out and let us know how it works out for you. I'm willing to bet, not so well.

Interesting this was mentioned. I have seen a DUI case dropped because someone crashed their car into a building, walked into a bar, and drank shots until they were found by police. They were still arrested for DWI, however the Commonwealth Attorney decided against prosecution. I think the biggest issue would be how much alcohol you drink when the car is off. I would see prosecution still being sought and able to provide a conviction if your alcohol intake when the car is off does not match the actual high level of perceived intoxication. I also wonder if other charges could be placed if you knowingly and intentionally "destroyed" evidence by consuming alcohol in a manner to tamper with a blood test among the other charges drinking inside your car brings.

About the Preliminary Breath Test (PBT)... most officers will tell the person that it cannot be used in the prosecution of a DWI, which is true (see post above with cites). However, I have seen many officers use the test and change their mind about making an arrest and let the person leave in a cab. It shouldn't happen, but it does. Lets face it, although you could get a DWI for someone .06 BAC, it will definitely go to trial. Some individuals are DWI with a .06 or some just fail tests because they truly are nervous or uncoordinated. The tests aren't 100 percent accurate, they merely give an indication. The intox machine by the magistrates office is the "official" machine, which implied consent comes into play. It's because that machine is a large, much more accurate test. Also, it requires an intox operator to swipe their card and prints out an "official reading" that is given to the courts.

Just take a cab.

 

[All American Nightmare]

Interesting this was mentioned. I have seen a DUI case dropped because someone crashed their car into a building, walked into a bar, and drank shots until they were found by police. They were still arrested for DWI, however the Commonwealth Attorney decided against prosecution. I think the biggest issue would be how much alcohol you drink when the car is off. I would see prosecution still being sought and able to provide a conviction if your alcohol intake when the car is off does not match the actual high level of perceived intoxication. I also wonder if other charges could be placed if you knowingly and intentionally "destroyed" evidence by consuming alcohol in a manner to tamper with a blood test among the other charges drinking inside your car brings.

Just take a cab.

However right you may be. You are missing the point. How would you if he had been drinking when he crashed the car if you were not there?

 

[NovaCop]

However right you may be. You are missing the point. How would you if he had been drinking when he crashed the car if you were not there?

It doesn't matter if the Officer didn't witness the accident. The officer merely needs probable cause to believe you were intoxicated and driving which contributed to the crash and the arrest must occur within 3 hours (18.2-268.2). It is definitely helpful to establish p.c. if there is a witness that saw you behind the wheel or if you are injured as such.

Also keep in mind that the "legal limit is .08 BAC" is actually incorrect. In VA, the courts have a presumption code. Meaning, that if you are less than .05 BAC, you are presumed by the court not to be DWI. However if you are between .05 and .08, you are not presumed either way and the court will make a decision based on the facts. If you are over .08 BAC, the court presumes that you are DWI. 18.2-269.

 

[All American Nightmare]

It doesn't matter if the Officer didn't witness the accident. The officer merely needs probable cause to believe you were intoxicated and driving which contributed to the crash and the arrest must occur within 3 hours (18.2-268.2). It is definitely helpful to establish p.c. if there is a witness that saw you behind the wheel or if you are injured as such.

Also keep in mind that the "legal limit is .08 BAC" is actually incorrect. In VA, the courts have a presumption code. Meaning, that if you are less than .05 BAC, you are presumed by the court not to be DWI. However if you are between .05 and .08, you are not presumed either way and the court will make a decision based on the facts. If you are over .08 BAC, the court presumes that you are DWI. 18.2-269.

If you did not see the crash or the person driving were is the RAS? Drinking in a bar is legal in all 50 states. Drunk in public is another charge.
18.2-269 seems to be a catch all law. What facts have been used to convict under this law? What is the penalty for being found guilty of this law? It does not state in the law.

 

[NovaCop]

If you did not see the crash or the person driving were is the RAS? Drinking in a bar is legal in all 50 states. Drunk in public is another charge.
18.2-269 seems to be a catch all law. What facts have been used to convict under this law? What is the penalty for being found guilty of this law? It does not state in the law.

Why don't you look up what suspicion is. Then combine that with what courts and a prudent person would believe is reasonable. Then combine that with enough evidence to reach probable cause. Then that probable cause is taken to a court of law.

18.2 catch all law? What facts have been used to convict under what law? It's not even a law, it's just the legal presumption. It builds upon the 18.2-266 actual law against driving while intoxicated. Facts in court? I think it's labeled "evidence". That "evidence" could include ownership of car, location where you were (ex: walking away from vehicle), Blood alcohol level, odor of alc. beverage on breath, empty bottles in car, etc. etc. That evidence is what a judge will look at.

Penalties vary for DWI. Depends on your past record (previous DWI's especially), the judge, your BAC, damage done, injuries, etc. etc. just like most other cases. However, since a DWI first offense is considered a class one misdemeanor, I guess you know it should carry jail time up to one year. VA does have mandatory jail times for BAC levels. If you are convicted above a .15, you will have to serve at least 5 days in jail. If you are over a .20, you will have to serve at least 10 days in jail. Obviously your license will be suspended for a period of time and you will get fined.

 

[jmb_nova]

While i hear wht you guys are saying, i never stated that the 'beer can in the car' was a good idea, or one that I personally would do or endorse. I personally have never driven drunk and never will. I simply thought it interesting that these lawyers would say that to this kid who is 22 and obviously executes poor judgement.

So no, i will not be 'testing out this theory' - you must think im ******* stupid.

 

[riverrat10k]

jmb

I also find it interesting attorneys would give this advice. One more arguing point I guess.

Saw in the paper today where an Essex County supervisor is accused of DUI among other things. They found his vehicle wrapped around some trees by the side of the road.

They went to his house and he refused any tests. I think it said his trial is today.

Back to the originial question "are the checkpoints possible in VA?", it appears that if you had a roadside magistrate, the officer could swear out a warrant and take blood. I don't think the public would allow this for long, though. And could still present problems with contamination and chain of custody, I would think.

 

[jmb_nova]

I also find it interesting attorneys would give this advice. One more arguing point I guess.

Saw in the paper today where an Essex County supervisor is accused of DUI among other things. They found his vehicle wrapped around some trees by the side of the road.

They went to his house and he refused any tests. I think it said his trial is today.

Back to the originial question "are the checkpoints possible in VA?", it appears that if you had a roadside magistrate, the officer could swear out a warrant and take blood. I don't think the public would allow this for long, though. And could still present problems with contamination and chain of custody, I would think.

Can you imagine the cluster it would be of officers in general drawing blood on the side of the street? I would hope they would have EMTs present but then just how 'big' and 'expensive' are we going to make dui checks?

 

[riverrat10k]

My thoughts, too. Half a dozen officers or more, EMT's (at least two), the magistrate, an ambulance as someone WILL faint at the sight of their blood.....

 

[All American Nightmare]

Why don't you look up what suspicion is. Then combine that with what courts and a prudent person would believe is reasonable. Then combine that with enough evidence to reach probable cause. Then that probable cause is taken to a court of law.

18.2 catch all law? What facts have been used to convict under what law? It's not even a law, it's just the legal presumption. It builds upon the 18.2-266 actual law against driving while intoxicated. Facts in court? I think it's labeled "evidence". That "evidence" could include ownership of car, location where you were (ex: walking away from vehicle), Blood alcohol level, odor of alc. beverage on breath, empty bottles in car, etc. etc. That evidence is what a judge will look at.

Penalties vary for DWI. Depends on your past record (previous DWI's especially), the judge, your BAC, damage done, injuries, etc. etc. just like most other cases. However, since a DWI first offense is considered a class one misdemeanor, I guess you know it should carry jail time up to one year. VA does have mandatory jail times for BAC levels. If you are convicted above a .15, you will have to serve at least 5 days in jail. If you are over a .20, you will have to serve at least 10 days in jail. Obviously your license will be suspended for a period of time and you will get fined.

Why dont you answer the questions I ask?

 

[NovaCop]

Why dont you answer the questions I ask?

What questions did I leave unanswered?

 

[riverrat10k]

After some research last night, I am changing my response to a probable YES.

From our own forum: Originally Posted by Dreamer
taking blood samples like they are doing in FL...
They can do that in NC too. Any EMT - I or Higher certified can draw blood.

The BAATU Mobile (Batmobile for short) The one that is in the commercials, has an on board breathalyzer and if you refuse the test they can get a court order and the On board RN can draw blood with or without your consent. If an officer suspect your were DUI at the scene or an accident and he has suspession to believe you are DUI and you refuse the breathalyzer then he can have medics on the scene draw blood as evidence. This has been going on for a while now .

http://forum.opencarry.org/forums/showthread.php?84766-decent-weather-brings-out-license-checkpoint

reference: http://www.dui.com/dui-library/north-carolina/news/batmobiles-check-for-north-carolina-dwi

Had no idea this was happening in NC and I drive there all the time.

 

[All American Nightmare]

Why don't you look up what suspicion is. Then combine that with what courts and a prudent person would believe is reasonable. Then combine that with enough evidence to reach probable cause. Then that probable cause is taken to a court of law.

18.2 catch all law? What facts have been used to convict under what law? It's not even a law, it's just the legal presumption. It builds upon the 18.2-266 actual law against driving while intoxicated. Facts in court? I think it's labeled "evidence". That "evidence" could include ownership of car, location where you were (ex: walking away from vehicle), Blood alcohol level, odor of alc. beverage on breath, empty bottles in car, etc. etc. That evidence is what a judge will look at.

Penalties vary for DWI. Depends on your past record (previous DWI's especially), the judge, your BAC, damage done, injuries, etc. etc. just like most other cases. However, since a DWI first offense is considered a class one misdemeanor, I guess you know it should carry jail time up to one year. VA does have mandatory jail times for BAC levels. If you are convicted above a .15, you will have to serve at least 5 days in jail. If you are over a .20, you will have to serve at least 10 days in jail. Obviously your license will be suspended for a period of time and you will get fined.

What questions did I leave unanswered?

If you did not see the crash or the person driving were is the RAS? Drinking in a bar is legal in all 50 states. Drunk in public is another charge.
18.2-269 seems to be a catch all law. What facts have been used to convict under this law? What is the penalty for being found guilty of this law? It does not state in the law.

The arrest must take place within three hours correct? If you were not present how would you know how long ago the wreck took place? Could you prove when the wreck took place?