DUI - Implied Consent Must Be Given By the Vehicle Operator

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 will take effect is that the defendant must be the operator of a motor vehicle. The law defines an operator as "every person who drives or is it an actual physical control of a motor vehicle upon a highway." (Section 46.2 – 100) Broadly written and construed by the courts, defendants have been found to be in control of vehicles in circumstances that do not necessarily involve actual driving; but, it must involve more than just sitting idly in the car. Consider, in addition to being behind the wheel with your foot on the gas, a defendant could be found in control of a parked vehicle, with the engine running and be found to be in sufficient control to be accused of DUI. This analysis will involve evaluating whether the defendants actions, without actually having put the vehicle in motion, amount to, if placed in a sequence of events, engaging in tapping into the kinetic power of the vehicle.

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.