Blog

Virginia Code section 18.2-268.2, requires that "any person," whether a holder of a Virginia driver's license or not, who operates a motor vehicle on Virginia highways is deemed to have consented to submit to have samples of his blood or breath, or both, taken for a chemincal test to determine the alcohol and/or drug content of his blood if he is arrested for violation of DUI/DWI. The results of such chemical testing is most often used to prosecute and convict those charged with DUI/DWI.

On its face, the statute seems pretty broad, but there are nuances of the law that may not apply to every person who is asked to take either test --- usually the test for breath unless drugs are suspected. There are two elements of the statute that an aggressive DUI defense attorney will immediately seek to determine when advising a client facing such charges.

First, is there evidence that the client was driving on a Virginia "highway?" The term "highway" is defined elsewhere in the Code and unless the person arrested was operating the motor on a roadway that meets the statutory definition of "highway," the arrest is invalid and the test results may be suppressed by the trial court.

Second, was the client "operating a motor vehicle?" The term "operating" does not necessarily mean, "driving." A person can be "operating" a motor vehicle while it is standing still, even when the engine is not running. An experienced DUI attorney will be able to advise the client once he has completed his investigation whether the Commonwealth can meet the burden of proof on that element. Without proof of "operation" there can be no valid arrest, and any test results that follow are subject to suppression by the trial court.