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Virginia's "Implied Consent" Statute Compels One Charged With DUI to Give Evidence Against Himself or Lose His License

When it comes to DUI arrests, the criminal justice system is turned upside down. Some of the protections conferred by the Bill of Rights are not applicable in DUI prosecutions. Foremost among the Bill of Rights that the federal and state courts have abandoned in the prosecution of DUI cases is the right against self-incrimination. Conviction for a first offense DUI is a Class 1 misdemeanor in Virinia that goes on both one's DMV record and into the Virginia State Police criminal database.

Conviction of a DUI is equivalent to petty larceny, assault and battery, and all other Class 1 misdemeanors. However, a person arrested for petty larceny, or assault and battery, or any other Class 1 misdemeanor, cannot be compelled to give evidence against himself. There is no "implied consent" law that states that if arrested for any of these crimes one must do anything to assist the Commonwealth in proving his guilt.

Except in DUI cases, a person is presumed innocent of every crime until the proseution can produce evidence beyond a reasonable doubt that he is guilty of the charge. Only in DUI arrests is the compulsion to incriminate oneself accepted in the criminal law. But it is not consent at all in the legal sense in any other criminal situation because it is coerced consent.

The Fifth Amendment to the Constitution protects people against being compelled to give evidence against themselves in criminal prosecutions. But the "implied consent" statute compels the production of "self-incriminating" evidence of impairment -- namely, the amount of alcohol in the driver's blood system as determined from a scientific test of his breath or blood. The failure to submit to a blood or breath test after being charged with DUI in Virginia may result in the suspension in one's driver's license for one year.

Therefore, the "consent" involved here is actually not necessarily "freely" given, but is the result of duress, threat of further prosecution, and intimidation. Nonetheless, despite attacks on the unconstitutionality of the implied consent statute in Virginia -- and in other states -- the implied consent law remains intact.

Mr. Stelly regularly appears in the courts of the City of Richmond, Henrico County, Chesterfield County, Goochland County, and Hanover County.

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