DUI - Implied Consent

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 operator of a motor vehicle must be placed under arrest within three hours of the alleged criminal behavior. Generally, a person alleged to have committed the offense of driving under the influence, will have been observed to have had questionable driving behavior by law enforcement officer, a complaining citizen or as the product of an accident involving the defendant. The arrest of the defendant must take place within 180 minutes of the time that the driving behavior was specifically observed or that the accident occurred. These times may be recorded in a variety of ways; but, most notably, the regular course of business is for the law enforcement dispatch to note the times calls when they are received. You will find that this issue is most prevalent in cases involving accidents.

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.