In Virginia, it is unlawful for any person to drive or operate a motor vehicle while such person is under the influence of marijuana to a degree which impairs his ability to drive or operate the motor vehicle safely. Va. Code Ann. § 18.2-266 (West 2010).
Implied Consent
Any person, whether licensed by Virginia or not, who operates a motor vehicle upon a highway in the Commonwealth shall be deemed thereby as a condition of such operation to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the presence of controlled substance. Id. § 18.2-268.2(A).
If accused does not wish to submit to chemical testing, no test(s) shall be given. However, such refusal will be in violation of implied consent statutes and subject to penalties. Id. § 18.2-268.3(A).
Offender’s first refusal to submit to testing is a civil offense and subsequent violations are criminal offenses. Id. § 18.2-268.3(C).
First refusal the court shall suspend the defendant’s privilege to drive for a period of one year. Id.
Second refusal (w/i 10 years) refusal is a Class 2 misdemeanor -the court shall suspend the offender’s privilege to drive for a period of three years. Id.
Third refusal (w/i 10 years) Class 1 misdemeanor – the court shall suspend the offender’s privilege to drive for a period of three years. Id.
A person charged with DUI has no constitutionally guaranteed right to speak with an attorney before submitting to testing. In some cases accused may attempt to contact an attorney, but unreasonable delays, failure to reach attorney or anything else which would frustrate or nullify the intent of the Implied Consent statute will not shield accused from penalties for refusal if accused does not submit to testing — notwithstanding lack of counsel. Coleman v. Com., 187 S.E.2d 172(1972); Deaner v. Com., 170 S.E.2d 199, 204(1969); Law v. City of Danville, 187 S.E.2d 197(1972).
Accused does not have a right to choose which test (breath/blood/urine) is to be administered. Virginia Implied Consent statute calls for breath test, but if a breath test is unavailable or an officer suspects impairment by drugs, a blood test may be given. Lamay v. Com.,513 S.E.2d 411(1999).
Penalties
First offense class one misdemeanor – mandatory fine of $250; offender is denied the right to drive for one year; as a condition of restoration of driving privileges the court may order the installation of an ignition interlock device on any vehicle driven by offender. Va. Code Ann. § 18.2-270(A) (West 2010); Va. Code Ann. § 18.2-271(A) (West 2010).
Second offense (w/i 5 years) – mandatory minimum fine of $ 500; confinement in jail for not less than one month nor more than one year; twenty days confinement shall be a mandatory minimum sentence; offender is denied the right to drive for three years; as a condition of restoration of driving privileges the court may order the installation of an ignition interlock device on any vehicle driven by offender.18.2-270(B)(1); 18.2-271(B); 18.2-270.1(B)
Second offense (w/i 5 to 10 years) – mandatory minimum fine of $ 500; confinement in jail for not less than one month – ten days of such confinement shall be a mandatory minimum sentence; offender is denied the right to drive for three years; as a condition of restoration of driving privileges the court may order the installation of an ignition interlock device on any vehicle driven by offender. 18.2-270(B)(2); 18.2-271(B); 18.2-270.1(B)
Third offense (w/i 10 years) class 6 felony – a mandatory minimum sentence of 90 days; minimum fine of $1,000; offender’s vehicle is subject to seizure by state; offender’s license is suspended indefinitely; as a condition of restoration of driving privileges the court may order the installation of an ignition interlock device on any vehicle driven by offender. 18.2-270(C)(1); 18.2-271(C) 18.2-270.1(B)
Third offense (w/i 5 to 10 years) felony – mandatory minimum sentence of confinement for six months; mandatory fine of a $ 1,000; offender’s vehicle is subject to seizure by state; offender’s license is suspended indefinitely; as a condition of restoration of driving privileges the court may order the installation of an ignition interlock device on any vehicle driven by offender.18.2-270(C)(1),(3); 18.2-271(C); 18.2-270.1(B)
Fourth and subsequent (w/i 10 years) felony – mandatory minimum term of imprisonment of one year; mandatory minimum fine of $ 1,000; license suspension of up to three years; offender’s vehicle is subject to seizure by state; offender’s license is suspended indefinitely; as a condition of restoration of driving privileges the court may order the installation of an ignition interlock device on any vehicle driven by offender. 18.2-270(C)(2),(3); 18.2-271(C); 18.2-270.1(B).
Other Penalties & Penalty Enhancers
DUI while transporting a person 17 years of age or younger carries an additional minimum fine of $ 500, and a mandatory minimum period of confinement of five days. 18.2-270(D)
Mandatory minimum punishments imposed pursuant to this section shall be cumulative, and mandatory minimum terms of confinement shall be served consecutively. However, punishment may not exceed maximum punishment allowed by statute. 18.2-270(F).
Sobriety Checkpoints
In Virginia, sobriety checkpoints are upheld under state and federal Constitution.
Legally executed driving maneuvers which reverse a driver’s course and take driver away from a checkpoint do not justify an investigatory stop, Bass v. Commonwealth, 525 S.E.2d 921 (2000); Murphy v. Commonwealth, 384 S.E. 2d 125 (1989).
However, certain conspicuous avoidance maneuvers which do not fit with the flow of traffic may justify an investigatory stop, Commonwealth v. Eaves, 408 S.E. 2d 925 (1991); Stroud v. Commonwealth, 370 S.E. 2d 721 (1988); Brown v. Commonwealth, 440 S.E, 2d 619 (1994).
Case Law
Coffey v. Com., 116 S.E.2d 257 (1960) — To convict for DUI, prosecution must do more than engender only a suspicion probability of guilt – prosecution may not even leave a hypothesis of innocence.
Oliver v. Com., 577 S.E.2d 514 (2003) — Test results from a breath or blood test are not necessary or required to prove driving under the influence of alcohol or drugs; test results are additional proof that can corroborate evidence of the objective symptoms of impairment.
Ngomondjami v. Com., 54 Va.App. 310, 317, 678 S.E.2d 281, 284 (Va.App.,2009) –“‘Operating” a car not only includes the process of moving the vehicle from one place to another, but also includes “starting the engine, or manipulating the mechanical or electrical equipment of the vehicle without actually putting the car in motion. It means engaging the machinery of the vehicle which alone, or in sequence, will activate the motive power of the vehicle.'”
Per Se Drugged Driving Laws
Virginia has a per se drugged driving law enacted for controlled substances, not including cannabis or cannabis metabolites. (Virginia State Code, Section 18.2-266)
Virginia’s law took effect in July 2005.