DUI - Implied Consent and Driving on the Highway

Since 1995, when the Virginia legislature enacted Section 18.2 – 268.2 of the Code of Virginia, the Commonwealth of Virginia has gently twisted the arms of operators of motor vehicles found to be driving on their highways in an allegedly intoxicated state, through a law that has been come to be known as "implied consent." In general, this means that defendants arrested on suspicion of DUI, or other related criminal offenses, are not forced, but strongly encouraged, to consent "to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood."

Failure to perform adequately in compliance with your obligation, under the "implied consent" law, will result in a new charge being brought against you, called "refusal."  A conviction for refusal carries a punishment including a 12 month loss of use of an operator's license in the Commonwealth of Virginia, without the ability to request a restricted license. In order for the "implied consent" law to apply in a case, the defendant must be the operator of a motor vehicle, commercial truck or motorcycle, who drives upon the highways and the Commonwealth of Virginia, and finds themselves arrested on the allegation of driving under the influence, within three hours of the time of their alleged offending behavior.

As stated, one of the essential elements to be established, before implied consent can apply, is that the vehicle was operated on a highway.  Literally, the law defines a highway as "the entire width between the boundary lines of every way or place open to the use of the public for purposes of the vehicular travel in the Commonwealth, excluding the streets and alleys, and, for law enforcement purposes, i) the entire width between the boundary lines of all private roads or private streets that have been specifically designated "highways" by an ordinance adopted by the governing body of the county, city, or town in which such private roads were streets are located and ii) the entire width between the boundary lines of every way or place used for purposes of vehicular travel on any property owned, leased, or controlled by the United States government and located in the Commonwealth." (46.2 – 100) as you can see, the legislature has attempted to address obvious issues and conflicts between public and private roads.

The easily defined roadways are the interstates and marked state and county highways. Further, you will find that most subdivisions have privately developed roadways that are now maintained under the control of the local jurisdiction, to the extent to satisfy their application under the definition of highway. One of the last battlefields in this area remains to be fought over the question of when is a property private. Clearly, a person's private residence and property is not subject to this type of scrutiny, unless rising to an unusual level of nuisance or public policy concern. Rather, the defendant found to be in the operation of a motor vehicle and intoxicated, on the property of a shopping center or other similar private enterprise open to the public, is the one worthy of discussion. Thorough legal analysis requires some depth, in considering whether a piece of private property is open to the public for the purpose of vehicular traffic and to what degree that is open for such purpose. It is an answer still being developed in our courts.

Anyone charged with driving under the influence, should strongly consider seeking the advice of a good local attorney. This consideration is enhanced if you have a factual issue in need of legal analysis, such as whether or not the defendant was actually operating his car. If not properly proven, a defendant not being subject to the implied consent law might be enough to win your case. It is in the defendant's best interest to fully understand the charge against him, the process in which he is involved, and the potential outcomes in his case. To do otherwise is to be careless with your future. The tolls from a DUI conviction that burdens the defendant, includes the costs to the defendant, both financially and with time; and, it is a conviction for a class I misdemeanor criminal offense.