Implied Consent & DUI Cases

It’s essential for drivers in Virginia to have an understanding of the implied consent law. This law can be a useful DUI defense under certain circumstances, such as when the edicts of the law are not precisely followed. Anyone who feels that their rights may have been violated should consider seeking the legal counsel of experienced DUI defense attorneys of Welch & Wright, PLLC.

Implied Consent and DUI Cases in Virginia Overview

Virginia’s implied consent law is outlined in Virginia Code Section 18.2-268.2. In essence, this outline specifies that certain conditions must be met for the law to apply, including the operation of a motor vehicle on a public highway. Another is being officially put under arrest for DUI within three hours of driving. Many technical defenses can arise in a DUI case if he implied consent has not been followed correctly.

Va. Code Section 18.2-268.2 outlines the implied consent law here in Virginia. In order the implied to apply, the defendant must meet all 4 of the following criteria:

1. Operating a motor vehicle
2. Been on a public highway
3. Arrested for a DUI or similar offense
4. Arrested within 3 hours of operating the motor vehicle

Operating a motor vehicle has been defined and redefined several times throughout the last several decades. It currently qualifies for anyone who has the ability to immediately control the vehicle. This can be as simple as the defendant sitting in the driver’s seat with the keys in their hand or pocket. It does not require the vehicle to be moving or for it to even be on. The rationale being that someone who has the immediate ability to start the vehicle and drive can be a danger. This would seemingly apply to someone pulled over on the side of the highway trying to sleep off their alcohol, who is sitting in the driver’s seat with the keys.

Definition of “Operating a Motor Vehicle”

Legally, “operating a motor vehicle” means having the ability to immediately control the vehicle, even if the person is not currently operating said vehicle. As such, sitting in the driver’s seat with keys in hand counts as operating a motor vehicle, legally. This is certainly a broad definition, and it even includes scenarios where the vehicle isn’t moving or even turned on. It’s based on the potential danger posed by someone who could quickly start driving the motor vehicle.

Definition of “Public Highway”

Virginia law broadly defines a “public highway” in order to include all public roads and streets, as well as certain private roads designated as highways by local governments or controlled by the U.S. government. Depending on the circumstances and case law, it may or may not include parking lots. This broad definition is yet another reason why you should contact an experienced Virginia DUI defense attorney if you find yourself charged with DUI.

Application of Implied Consent

Whether the implied consent law in Virginia applies in a specific case is a fact-specific determination. This simply means that there is a possibility that experienced attorneys, like those at Welch & Wright, can analyze the details of the case to determine if the law was properly applied. If certain conditions or facts are evident, there may be a chance for the defendant to get a positive outcome, but results are not guaranteed. The DUI attorneys at Welch & Wright, PLLC offer a free consultation to review the specifics of an individual’s situation so you will have a better idea of what might be possible in your case.

Contact Welch & Wright, PLLC for legal assistance if you have any suspicion that your implied consent rights may have been violated in a DUI case.