Implied Consent and DUI Cases in Virginia

Contact our Norfolk, VA attorneys to protect your rights

One of the most important aspects of a DUI case is the implied consent law. Many technical defenses can arise in a DUI case if the implied consent law has not been followed correctly. If you believe the police violated your rights under the implied consent law, contact the experienced DUI defense attorneys at Welch & Wright, PLLC today. We can fight back against the charges and protect your rights throughout the process.

The elements of implied consent in Virginia

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

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

If the implied consent law applies, then you can be required to provide breath and/or blood samples for analysis (i.e., to measure your blood or breath alcohol concentration). There are legal penalties if you refuse this test, including potential criminal charges.

But whether the implied consent law applies in any given situation is not always straightforward. Let’s take a look at two seemingly simple elements of this definition: operating a motor vehicle and being on a public highway.

What does “operating a motor vehicle” mean in a legal sense?

Operating a motor vehicle has been defined and redefined several times throughout the last several decades. The current definition includes 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 for this rule is 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, sitting in the driver's seat with the keys.

What is the legal definition of a “public highway” in Virginia?

What constitutes a “public highway” is defined in Va. Code Section 46.2-100. It says “highway” means:

“the entire width between the boundary lines of every way or place open to the use of the public for purposes of vehicular travel in the Commonwealth, including the streets and alleys, and, for law-enforcement purposes, (i) the entire width between the boundary lines of all private roads or private streets that have been specifically designated "highways" by an ordinance adopted by the governing body of the county, city, or town in which such private roads or streets are located and (ii) the entire width between the boundary lines of every way or place used for purposes of vehicular travel on any property owned, leased, or controlled by the United States government and located in the Commonwealth.”

In other words, it includes all public highways, roads, and streets. It also includes private roads and streets that have been designated as “highways” by the local government. And it can include roads, streets or property that is owned, leased, or controlled by the U.S. government in the state of Virginia.

Does this include parking lots? That depends. Case law has sorted out parking lots with two different presumptions. For commercial parking lots, it is presumed that the driver was not on a public highway, unless the prosecutor can overcome this presumption. This could be as simple as a case where the defendant was pulled over in a grocery store parking lot and the officer witnessed the defendant pull into the lot from a public road.

For residential parking lots, there is a presumption that the driver was on a public highway, unless the defendant overcomes the presumption by showing the parking lot excludes trespassers. This situation would apply, for example, if the driver was pulled over in an apartment complex parking lot that was for residents only.

Our attorneys can get to the bottom of whether implied consent applies in your case

Whether or not the implied consent law applies in your case is a very fact-specific question. The attorneys at Welch & Wright have experience analyzing and applying this rule, and we would be happy to go over the facts of your particular case in a free consultation.