Supreme Court case prompts numerous DUI revisions

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After a recent U.S. Supreme Court decision invalidated parts of Virginia’s DUI laws, legislators revamped the whole package of statutes that regulate intoxicated operators, from the highway to the high seas.

The resulting package made its way through the Assembly with many changes, but hardly any opposition.

Sponsor Del. Chris Collins, R-Winchester, a criminal defense attorney, often shared a lectern with prosecutors as he explained the details of his House Bill 2327, a 22-page bundle of revisions in 25 separate statutes.

The bill “seems so big and onerous only because it has so many code sections we had to go through,” Collins told Senate committee members. “It’s like a seven-course meal on a salad plate.”

“It was a complicated bill, because, anytime you change DWI or implied consent, it affects so many statutes,” said Stafford County Commonwealth’s Attorney Eric Olsen. Olsen, current president of the Virginia Association of Commonwealth’s Attorneys, helped to craft the bill.

The impetus was last year’s U.S. Supreme Court decision Birchfield v. North Dakota, 136 S. Ct. 2160, which invalidated criminal penalties when DUI suspects refuse a blood draw.

“With Birchfield, we have a real challenge getting blood tests admitted and doing all the things we need to do,” Olsen told legislators Feb. 15.

“The need for this bill was that our statutory scheme was now unconstitutional and needed to change. Our implied consent advice that we give to individuals that are arrested was inaccurate. We had to change that,” Olsen said.

Extensive changes

The bill would do more than just fix the blood draw refusal penalties.

Other changes include:

• Increasing to a Class 1 misdemeanor the criminal penalty for refusing to submit to a breath test under the implied consent law for an offense committed within 10 years of a prior refusal or DUI-related offense;

• Extending the rebuttable presumption that a person is intoxicated based on the person’s blood alcohol level to apply to state-lab blood tests pursuant to a search warrant; and

• Giving priority to an application for a blood test search warrant over any other matters not involving an imminent risk to health or safety.

Lawmakers were eager to make the presumption of intoxication apply equally for blood tests, regardless of the basis for obtaining a sample, according to Sen. Ryan T. McDougle, R-Mechanicsville.

After Birchfield, Olsen said prosecutors were forced to assemble a lot of foundation evidence when blood was taken pursuant to a search warrant, since the presumption of intoxication did not apply. With the legislation, the presumption applies uniformly.

Olsen also said the priority requirement for blood-draw warrants will help.

“In a busy magistrate’s office, with three or four warrantless arrests in front of you, it can take a while,” he said.

The bill clarifies that an accused has 90 days to request an independent lab test and that the state lab can destroy the remaining blood sample if no notice for an independent test is received in that time frame.

The added clarity was welcomed by lab staff, bill supporters said.

Legislators removed a provision that would have authorized the attorney general’s office to participate in appeals of civil offenses for implied consent refusal.

Multiple changes

The bill went through changes in both the House and Senate until supporters were largely satisfied.

“That’s why we have the process of two different sets of eyes looking at legislation,” McDougle said. “I think the process really did work.”

Under the revisions, implied consent still does not apply when a driver is stopped on private property, Collins said. The implied consent statutes refer to operation on “a highway in the Commonwealth.”

Going through the code books to revisit DUI-related statutes led to some discoveries, Collins said. The DUI law for those operating watercraft or motorboats had not been updated.

“We had to make that conform with current law,” he said.

At a committee meeting, Olsen introduced a couple who lost a son in an alcohol-related accident. “I wanted everybody to understand the true cost of drunk driving,” he explained.

“Every prosecutor knows that any DWI, first or second offense, has the potential to be a manslaughter case the next week,” Olsen said.

Effective enforcement actually reduces the incidence of drunken driving, he contended.

“It’s really an area where we can make a huge impact by doing our job right,” Olsen said.

The legislation is designated as “emergency,” so it will take effect as soon as the governor adds his signature.