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Court Overturns Virginia Criminal Conviction Based on Statutory Violation

On Behalf of | May 20, 2021 | DUI

The Supreme Court of Virginia recently issued an opinion overturning an accused’s Virginia conviction for operating a vessel while under the influence. According to the record, the Virginia Marine Resource Commission (VMRC) noticed the accused operating his boat without a white running light. When the VMRC attempted to stop the man, he accelerated, ran the vessel into the ground, and jumped out. After reaching the accused, the VMRC arrested him for operating a vessel under the influence. The accused refused to take a breath or blood test.

At trial, the man attempted to introduce evidence regarding the lawfulness of his arrest; however, the lower court found that he had forfeited his right because the law required him to do so before trial. Following a conviction, the accused appealed under Virginia Code § 29.1-738.2, contending that the trial court erred in denying him the ability to present evidence to support his challenge to the lawfulness of his arrest.

Under Virginia law, individuals who operate a boat consent to provide a blood sample if the person is arrested within three hours of the offense. In this case, the accused argues that this implied consent statute only applies if it is predicated upon a lawful arrest. In reviewing the matter, the court looked to prior case law which limited the application of the implied consent law to situations involving a valid arrest.

Moreover, Virginia Code § 19.2-266.2 states that defense motions or objections stemming from constitutional infringements must be raised before trial. In this case, the court found that the accused was not arguing that a constitutional violation occurred; instead, he argued a statutory violation based on the implied consent law.

Ultimately, the court found that the trial court erred in denying the accused the opportunity to present evidence. The court acknowledged that the officer’s complaint stated that he “smelled alcohol” and, although that evidence may be enough to establish probable cause, it is not sufficient for the appellate court to decide. Therefore, the court directed the trial court to determine whether the accused was lawfully arrested.

The court stated that their decision does not impact the accused’s conviction for failing to stop his boat for law enforcement. It distinguished that decision by explaining that the conviction did not involve an arrest that would include the accused’s consent to take a blood or breath test.

Have You Been Arrested for a Virginia Crime?

If you or someone you know faces a Virginia DUI offense, contact the Virginia criminal defense attorneys at Robinson Law. The attorneys at our law firm have extensive experience successfully representing those accused of all types of crimes, including driving and boating under the influence, assault and battery, domestic assault, drug charges, expungements, federal crimes, juvenile defense, larceny, probation violations, and sex crimes. The Virginia criminal justice system is complex and requires an in-depth understanding of state and federal statutory, constitutional, and procedural laws. An attorney at our office can help you understand your rights after being arrested in Virginia. Contact our office at 703-542-3616 to discuss your case today.