DUI Refusal
Having accidentally burped during the 20 minute wait period prior to taking the breath test, the arresting officer charged me with Refusal (Summons states 18.2-268.2, but actual law refers to 18.2-268.3). Prior to starting the 20 minute wait period, I asked both the arresting officer and the magistrate to allow me to take the blood test because I felt it to more accurate. I was denied without explanation. I have since learned that VA requires the breath test. Regardless, I agreed to the test. Since I was experiencing abdominal pains and knew that it would be nearly impossible to sit for 20 minutes without burping, coughing, etc., I asked to use the lavatory before starting the 20 minute wait period but was denied. My questions are: 1) Since I was cooperative and had asked for the blood test, wouldn�t this be indicative that I was not refusing? 2) Does the fact that the arresting officer forced me to wait for 20 minutes in an impossible condition have any merit?
2 Answers from Attorneys
Re: DUI Refusal
Your issues with reference to the refusal are interesting and warrant some further analysis. However, I cannot understand why you are focusing on the refusal chareg more than the underlying DUI charge. I would much rather leverage the refusal charge, a weak one at that, against the DUI charge.
The fact that you were disallowed the blood test is not dispositive in your case. The issue is whether your refusal was "unreasonable." In this case, I believe that there was no unreasonable refusal but I would go further to state that I think there was no refusal at all.
However, given the task of weighing 2 pending charges, I would carefully look at the facts of the underlying charge as it is more important.
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Re: DUI Refusal
Sec. 18.2-268.2(B) of the Virginia Criminal Code
states: Any person so arrested(on suspicion of drunken or impaired driving) shall submit to a breath test. If the breath test is unavailable or
the person is physically unable to submit to the breath test, a blood test shall be given.
If, as you assert, you were not permitted to take the breath test due to burping, a blood test should've been administered, as specified in the above statute. The circumstances which you've described would not appear to be grounds
for charging you with refusal(to submit to the required tests).
Your remedy for this situation would appear to be found in Sec.18.2-268.3(E.)which states: the declaration of refusal or certificate of the magistrate shall be prima facie evidence that the defendant refused to allow a blood or breath sample to be taken to determine the alcohol or drug content of his blood. However, this shall not prohibit the defendant from introducing on his behalf evidence of the basis of his refusal(or evidence indicating in fact there was no refusal). The court shall determine the reasonableness of the refusal.
Therefore, if the Commonwealth is determined to prosecute you for (allegedly) refusing the test,
you should be prepared to go to trial(preferably, with an attorney) on this very
issue.
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