Volume 5, Number 1 | July 2010

Two Important Changes for Law Enforcement Officers from the Last General Assembly Session

You don’t even have to be there!  Big changes to DWI for 2010

by H. Lee Harrell
Deputy Commonwealth’s Attorney
Wythe County, Virginia
E-mail:  hlharrell@wytheco.org

            The 2010 Regular Session of the General Assembly adjourned Sunday, March 14, 2010, and the Reconvened Session adjourned on Wednesday, April 21, 2010.  As a result of these sessions, we now have some of the most sweeping changes to DWI law seen in years.  This time, the changes are great for law enforcement officers!

            House Bill 770, introduced by Delegate William H. Cleaveland (17th District), addresses many of the persistent and vexing problems of current DWI procedures.  The bill takes on most of the Code of Virginia’s arrest framework as found in §§19.2-73, 19.2-74, 19.2-81 and 19.2-82.

            One of the bill’s major changes was designed to address the ongoing problem of how law enforcement deals with DWI suspects who are at a medical facility.  The 2006 case of Commonwealth v. Bristol, 636 S.E.2d 460 (2006) left many in law enforcement scratching their heads about how to deal with (and arrest) injured suspects.

            Bristol was injured in a motorcycle wreck and transported to a local hospital.  He was lying in a hospital when an officer informed him that he was “under arrest.”  He consented to a blood test, the results of which the Commonwealth attempted to enter into evidence in his prosecution for DWI.  The defendant objected, saying that he had not been “arrested” within 3 hours of his operation of a motor vehicle pursuant to implied consent.  Specifically, he argued that he never voluntarily submitted to the officer’s authority, and thus no arrest had been effectuated.  Words alone (“you are under arrest”) absent some physical submission cannot amount to an arrest.  The Supreme Court of Virginia agreed with Bristol, and overturned his conviction.  Although §19.2-73 of the Code of Virginia had been amended in 2005 (partly in response to the Court of Appeal’s decision in this case), to allow for release by summons at a medical facility, the question remained:  What exactly is an arrest?  Was the Court requiring a “laying on of hands” even where the suspect was in a precarious medical state? The Bristol case created a real fear of civil liability for the officer who interfered with medical care by trying to get a suspect to submit physically to an arrest.

            HB 770 revises §19.2-73 so that the summons issuance is “deemed an arrest” for the purposes of the three hour rule of implied consent.  Gone is the need to have the defendant physically submit to an arrest.  The officer can simply issue a summons and leave a copy with the suspect.

            The bigger, and more surprising, change to DWI arrest law this year is the removal of the presence requirement.

            Warrantless arrests for misdemeanors are allowed in Virginia if certain requirements are met.  The most important requirement for a warrantless misdemeanor arrest is that the offense must have occurred in the presence of the officer.  There are, of course, a few limited exceptions (assault and battery, weapon on school property, shoplifting, brandishing a firearm, destruction of commercial property and protective order violations).  These exceptions have always required that probable cause exist.  For the purposes of arrest, these few misdemeanors are treated like felonies:  so long as probable cause exists, the officer can arrest without a warrant even though the officer saw nothing.

            HB 770 adds DWI to that list.  So long as an officer develops probable cause (most likely from the report of a fellow officer) that someone was driving while intoxicated, he can arrest (even when the officer did not witness the person operating a motor vehicle!!!).

            The question will obviously arise as to how the officer developed probable cause. The cautions about anonymous tipsters are doubly applicable in this brave, new world.  As these changes inevitably rock the world of defense attorneys (you arrested my client for DWI and you never even saw him driving????), there will likely be an increase in motions to suppress arguing a lack of probable cause.  The safest ground (and probably that contemplated by the drafters of the new law) will be probable cause gleaned from a fellow officer.  Shakier (but not completely implausible) will be probable cause from named citizen complainants.  Anonymous tips should be met with a great deal of skepticism, especially in the DWI context.

Certificates of Analysis:  Fighting Melendez-Diaz

            Anyone who has used certificates of analysis in prosecutions will tell you that Melendez-Diaz v. Massachusetts, 557 U.S. ___ (June 25, 2009), has changed business as usual, for the foreseeable future.  This decision held that admitting certificates of analysis without having the lab analyst (or machine operator in the case of DWI’s) present was a violation of the defendant’s right to confront his accusers pursuant to the Sixth Amendment to the Constitution of the United States of America.  The Justices made it clear that the decision was here to stay when they affirmed it in Briscoe v. Virginia, 559 U.S. ____ (2010), refusing further argument or reconsideration of the subject.

            This newfound hurdle to prosecutions has caused broken hearts and mountains of subpoenas throughout the Commonwealth.  It has also burdened the Department of Forensic Science, which was already suffering due to the recent budget crisis.

            In an effort to relieve some of the problems caused by Melendez-Diaz, the General Assembly enacted HB 500.  This bill creates two mechanisms that should make things easier on analysts and breath test operators.

            First, HB 500 requires that if the defendant demands to have live testimony of the analyst, an additional $50 will be added to his costs if he is convicted.  Although this seems like a paltry sum in the grand scheme, it may cause defense attorneys to think twice about requiring the presence of the analyst when there is no cognizable reason to bring that person to court.  A good attorney should explain to his client, up front, whether or not an analyst would be useful to his defense, and should also explain that there may be a cost of $50 associated with that decision.

            Second, the bill makes it plain that the right to have the analyst testify applies only to trial and not to a preliminary hearing.  Many localities have reported that their judges are requiring the analyst to be present at the preliminary hearings.  This tweak to §19.2-183 should convince judges that certificates of analysis are admissible without the analyst for the probable cause determinations at preliminary hearings.


            These new statutes became effective on July 1, 2010.  How judges will interpret these changes remains to be seen. However, the changes to the DWI arrest framework are particularly significant and will likely raise the collective eyebrow of the judiciary (and certainly the ire of the defense bar).  Given, however, that there are several other “no-presence-warrantless-arrest-misdemeanors” that have been on the books for years, the changes will likely pass constitutional muster so long as the officer is able to solidly articulate the requisite probable cause.

Disclaimer:  The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.