Virginia DUI law has two components -- statutes and case law. Statutes are laws passed by the Virginia General Assembly and signed by the Governor. Case law is the collection of legal opinions written by courts that interpret these statutes. Since they have either precedental or persuasive authority, they are important DUI defense tools.
(Pictured above are the current United State Supreme Court Justices -- the highest court in the land. Most appellate Virginia DUI decisions come down from the Virginia Court of Appeals).
For recent case law, continue reading.
For a list of Virginia's DUI statutes in plain English, click here.
This page lists summaries of all reported DUI cases from January 1, 2005 to date. For older cases, visit the Supreme Court's web page.
Rowley v. Commonwealth, 2006 Va. App. LEXIS 167 (2006): A defendant complained that Virginia's DUI law requiring him to submit to a breath test violated his constitutional right to be free from self-incrimination. RULE OF LAW: Virginia’s implied consent statute – requiring one to submit to a breath or blood test -- does not violate the 4th or 5th Amendments of the U.S. Constitution because a breath sample is not “testimonial” and because one consents (albeit impliedly) to a breath test when he chooses to operate a motor vehicle under Virginia law.
Luginbyhl v. Commonwealth, 46 Va. App. 460 (2005) (rev’d), aff’d on re’hg en banc 48 Va. App. 58 (2006): The full Court of Appeals assumed, without deciding, that the trial court violated the defendant's constitutional Confrontation Clause rights when it admitted into evidence the certificate of blood analysis without giving the defendant the chance to cross examine the breath test operator. However, on the facts of this case, the court found that the error was harmless because there was so much evidence of intoxication independent of the breath test to support a conviction. RULE OF LAW: The breath test operator probably needs to testify in court in order for the court to properly see the breath test results.
Commonwealth v. Pattarasok, 2006 Va. Cir. LEXIS 15 (2006) (Bellows, J): The Virginia law (sec. 18.2-269) that says that a 0.08 blood alcohol result creates a “presumption” that the defendant was under the influence of alcohol is constitutional. The court reasoned that this law really only amounts to a “permissive inference” and not a true “presumption.” RULE OF LAW: The court cannot presume that one is under the influence of alcohol based on the breath or blood test alone. It must receive other facts supporting the inference that the test provides.
Bristol v. Commonwealth, 45 Va. App. 534, rev’d on re’hg en banc 47 Va. App. 584 (2006). A police officer investigating a traffic accident met the defendant at the hospital. There, he verbally told the driver that he was under arrest, but did not take him into custody and told him that he was “free to leave." The Court ruled that this verbal arrest was a legal arrest. (A unanimous panel of the court had earlier held that the arrest was improper and dismissed the case). The en banc (whole court) review concluded that (1) the police officer told the defendant he was under arrest and (2) the defendant submitted to police authority (i.e., he agreed to the blood test after the officer told him he had to do so upon being arrested). This submission to police authority plus the statement that the defendant was under arrest validated the arrest. RULE OF LAW: To validly arrest a person, a police officer must have a warrant or probable cause, plus he must both inform the suspect that he or she is under arrest and either restrain the individual or have the individual submit to the officer’s authority.
Commonwealth v. Stump, No. CR05000946-00 (Roanoke Cir. Ct., 2006) (Apgar, J.): A defendant argued that his 60 day pre-trial license suspension barred his DUI second offense prosecution because he was being punished twice for the same offense in violation of the Double Jeopardy clause of the U.S. Constitution and Virginia Code sec. 19.2-294. The court held the suspension was civil in nature and that the 60 day period did not inherently transform it to a criminal penalty. RULE OF LAW: Double Jeopardy does not apply to the 60 day pre-trial suspension of a driver’s license because the suspension is civil in nature and is not unduly punitive.
Commonwealth v. Padilla, 2006 Va. Cir. LEXIS 16 (2006) (Wooldridge, J.): The defendant challenged the constitutionality of Virginia’s DUI laws on the basis that Virginia Code sec. 18.2-269 creates a presumption that one with a blood alcohol level of 0.08 or above is under the influence of alcohol. Under Francis v. Franklin, 471 U.S. 307 (1985), in a criminal case, the prosecution is constitutionally required to prove each element of the offense beyond a reasonable doubt. No evidentiary presumption may relieve the prosecution of its burden of persuasion beyond a reasonable doubt of every essential element of a crime. The court ruled that Virginia's DUI statute itself was constitutional, but that the blood or breath results could not be offered by the Commonwealth as a "presumption" of intoxication. The breath or blood test results can only create a "permissive inference," allowing a defendant to offer rebuttal evidence to show that he or she was not actually under the influence of alcohol despite the test results. RULE OF LAW: The court cannot presume that one is under the influence of alcohol based on the breath or blood test alone. It must receive other facts supporting the inference that the test provides.
U.S. v. McGavock, 2005 U.S. Dist. LEXIS 24615 (W.D. Va. 2005): A police officer saw the defendant walking early in the morning along the Blue Ridge Parkway. The defendant said he had just had an accident. The accident scene was nearby. The defendant argued at trial that there was no way proof that he was under the influence at the time he was driving or that he was arrested within three hours of driving as required by Virginia Code sec. 18.2-268.2. The Court held that the defendant’s statement that the accident had “just happened,” his proximity to the accident site, and his admissions to alcohol consumption established that the defendant’s condition at the time of the accident and the fact that the arrest with within three hours. The Court also held that federal law did not create an unconstitutional presumption of intoxication based on the breath test. RULE OF LAW: Circumstantial evidence may be used to prove factors such as time of arrest and level of sobriety at earlier moments.
Conley v. Commonwealth, 2005 Va. App. LEXIS 516 (2005): At a trial for a DUI, third offense, the defendant objected to the admission of his prior DUI convictions. The convictions -- records of the court -- were stamped and signed by the deputy clerk and not the clerk of the court in violation of Virginia Code 8.01-389(A) which specifically says that the "clerk" must authenticate the records. The Court ruled that the deputy clerk was the equivalent. RULE OF LAW: Deputy Clerks can authenticate court records.
United States v. Jones, 403 F. Supp. 2d 518 (W.D. Va. 2005). A U.S. Park Ranger saw the defendant speeding in Cumberland Gap park and stopped him just outside the park (and outside Virginia) and arrested him for DUI. The defendant argued that the arrest was illegal because the officer was outside his jurisdiction and the resulting DUI in Virginia's federal court should be dismissed. The Court held that Park Rangers could arrest outside their jurisdiction if the defendant is "fleeing" from within their jurisdiction. The Court defined "fleeing" as "to pass away swiftly," and ruled that one can "flee" even if he didn't know he was being pursued. RULE OF LAW: Park Rangers may arrest one outside a park if he sees the person on the park, follows him out of the park, and the accused leaves the park "swiftly." The ruling suggests that the officer could not lawfully arrest one who was leaving a park "slowly."
Auer v. Commonwealth, 46 Va. App. 637 (2005). RULE OF LAW: Even if the Commonwealth litigates a second or subsequent offense case as a first offense case, it may still present evidence of the prior offense at sentencing. Moreover, even though prior convictions under local laws are not specifically enumerated in § 19.2-295.1 as admissible sentencing materials in the sentencing phase of a bifurcated trial, they can be so used.
Stevens v. Commonwealth, 46 Va. App. 234 (2005): The trial court dismissed a DUI case where the police officer failed to give the accused a copy of the independent lab sample request form. The trial court reasoned that the Commonwealth failed to properly follow Virginia’s Implied Consent law. The Court of Appeals didn’t get to rule on that issue, however, and affirmed the companion Involuntary Manslaughter case. RULE OF LAW: The Commonwealth has to comply with the Implied Consent law in order to compel one to submit to a blood or breath test.
United States v. Clark, 361 F. Supp. 2d 502 (E.D. Va. 2005): A man was convicted of DUI on a military base in Virginia. Because he was previously convicted of DUI within five years of the present offense, the Virginia mandatory minimum penalty required twenty days in jail. However, the federal magistrate did not impose any jail time. Instead, the court ordered the defendant to be confined to his military base for six months among other penalties. On appeal to a district court judge, the court held that federal courts must impose the Virginia mandatory minimum penalties. However, it allowed for federal incarceration alternatives, such as home confinement, weekend incarceration, or community confinement. (The court did not consider the “base confinement” to be equivalent to “home confinement”). RULE OF LAW: Virginia's mandatory DUI penalties apply to cases on federal military bases. However, generous federal sentencing alternatives are applicable.
Easton v. Commonwealth, 2005 Va. App. LEXIS 248 (June 28, 2005): A woman who was parked in her driveway on private property admitted that she had driven there within the previous hour. But for this admission, there was no evidence that she had operated the motor vehicle on a “highway” which is required for the Commonwealth to compel one to submit to a breath or blood test. However, based on her statements, the Court affirmed her conviction. RULE OF LAW: Police do not need to actually observe a person operate a motor vehicle on a highway in order to require the person to submit to a breath or blood test. An admission by the person that he or she had done so is sufficient.
Pancione v. Commonwealth 2005 Va. App. LEXIS 217 (May 31, 2005): An off-duty, out-of-jurisdiction police officer saw a motorist driving poorly. He followed him and, when the driver stopped, he did too and detained the driver until officers of the jurisdiction arrived. The driver argued that the off-duty officer lacked probable cause for a proper arrest. The court held that the officer made a lawful citizen's arrest and, as a citizen, wasn't bound by 4th Amendment protections against unlawful arrests. RULE OF LAW: A police officer can morph into an ordinary citizen when off-duty and out of his jurisdiction. When he does so, the 4th Amendment doesn't apply to his actions because he is no longer a state actor.
Wilson v. Commonwealth, 45 Va. App. 193 (2005): An off-duty deputy, outside his jurisdiction, observed the defendant's poor driving behavior. He followed him, called for local police, and detained him once he stopped. Even though he showed his badge, the Court held that he was acting as a citizen making a citizen arrest and affirmed the DUI conviction. The Court noted that the deputy said that he was outside his jurisdiction and that he had called, and was waiting for, local police. RULE OF LAW: Police can make "citizen arrests," so long as they don't aggressively use the "color of their office."
Shelton v. Commonwealth, 45 Va. App. 175 (2005): A police officer failed to give a suspect a copy of his breath test results in violation of Virginia Code sec. 18.2-268.9. Instead, he only showed him the test results. The Court held that this was "substantial compliance" under Virginia Code sec. 18.2-268.9. RULE OF LAW: The police do not have to give a copy of the breath test results to an accused person in all circumstances.
Brooks v. Commonwealth, 2005 Va. App. LEXIS 65 (Feb. 15, 2005): In a DUI-Second or Subsequent Offense trial, the prosecutor tried to prove that the defendant had a prior DUI conviction by offering a Circuit Court Order that was signed by the clerk but not the judge. The defendant objected to this unsigned order. The appeals court held that the fact that the clerk's office certified the copy of the Order gave the document a "presumption of regularity" and affirmed the conviction. RULE OF LAW: An unsigned court order that is nonetheless certified by the clerk's office can be used to prove a prior DUI conviction.
United States v. Barber, 360 F. Supp. 2d 784 (E.D. Va. 2005): The Court holds that it will apply Virginia's new mandatory minimum penalties for cases involving the Code of Federal Regulations (such as the Pentagon and the GW Parkway) for comity purposes. Previously, the mandatory minimums only applied to federal cases that actually assimilated Virginia law (such as military base cases). RULE OF LAW: Even though not mandatory, the federal court in Virginia will apply Virginia's mandatory minimum sentences as if they were.
United States v. Montigue, 357 F. Supp. 2d 939 (E.D. Va. 2005): A federal judge rules that state mandatory jail time can be served through federal incarceration alternatives, such as home detention, for offenses committed on federal property. RULE OF LAW: "Mandatory minimum jail" does not always mean "actual incarceration" for DUI cases committed on federal property, such as military bases.
Henry v. Commonwealth, 44 Va. App. 702 (2005): The police failed to comply with breath test equipment storage requirements of 6 VAC 20-190-40. The Court held that, absence evidence of prejudice to the accused from such failure, the test results are admissible. The Court read Virginia Code sec. 18.2-268.9, 6 VAC 20-190-40, and Virginia sec. 18.2-268.11 together, and concluded that, in the absence of a showing of prejudice by defendant, substantial compliance is sufficient for the admission of the test results. RULE OF LAW: The police do not have to maintain their equipment per regulations so long as their neglect does not result in prejudice to the accused. The accused has the burden of proving that such deficiencies prejudiced him or her.