Vol. 3, No. 2 | October 2008

When Has a Person Been Arrested Under the Implied Consent for a Blood Test Statute?

by Jack E. Call
Professor of Criminal Justice
Radford University
E-mail:  jcall@radford.edu  

[Note:  Unless indicated otherwise, materials in quotation marks are quotes from the opinion of the court deciding the case under discussion.  Also, unless indicated otherwise, a case discussed below was decided by the United States Supreme Court.  Descriptions below of the facts of a case often quote verbatim (or at least draw heavily) from the opinion’s description of the facts or from the summary of the case provided by one of the legal reporters, such as Lexis-Nexis or www.findlaw.com]

Bristol v. Commonwealth, 636 S.E.2d 460 (Virginia Supreme Court, 2006)

Facts:  On July 4, 2003, Bristol and his friends were drinking alcoholic beverages and playing pool at the Three Cheers Lounge. When Bristol left the lounge around 1:45 a.m., he agreed to give Debra Fly a ride on his motorcycle. Bristol drove his motorcycle around the lounge parking lot with Fly seated behind him as a passenger. Bristol's vehicle reached speeds estimated between 50 and 80 miles per hour. While still in the parking lot, Bristol drove directly into a crowd of people without reducing his vehicle's speed. His motorcycle struck April Mapp, who was standing on the curb, causing her to be thrown into the air. As a result of the collision, Bristol fell off the motorcycle.

When Officer Doyle responded to the scene about 1:56 a.m., Bristol and Mapp were both lying in the parking lot. Mapp had head and brain injuries and a broken leg. Bristol was conscious, but had abrasions and bruises on his face. According to a paramedic who responded to the scene, Bristol smelled of alcoholic beverages. At 2:50 a.m., Doyle went to the hospital to see Bristol, who was in a trauma unit waiting to be examined. Doyle observed that Bristol's speech was slurred and that he smelled strongly of alcoholic beverages. At 2:56 a.m., Doyle told Bristol he was under arrest and informed him of the implied consent provisions of Code § 18.2-268.2. Bristol indicated that he understood those provisions and, at 3:05 a.m., signed a form authorizing the hospital to draw a blood sample. Doyle did not take any measures at that time to restrain Bristol.

Shortly thereafter, hospital personnel moved Bristol from the trauma unit to the hospital's emergency room. Doyle accompanied Bristol to the emergency room and sat with him until a lab technician, Teresa Whitfield, arrived to draw Bristol's blood. However, Doyle took no measures to restrain Bristol or his movements. When Whitfield asked Bristol if he understood that she was drawing a blood sample at the request of the police, Bristol indicated that he understood. Whitfield drew the blood sample from Bristol.  After taking possession of the vials containing Bristol's blood, Doyle returned to the police station to write a report of the parking lot incident. In that report, Doyle did not indicate that Bristol had been arrested.

Soon after Doyle left the hospital, Officer Eberts arrived and attempted to interview Bristol. However, Bristol was incoherent, his speech was slurred, and he was in pain from the accident. Eberts left the hospital without taking any further action regarding Bristol. When Bristol was released from the hospital later that day, he was not taken into police custody or brought before a magistrate.

Two days later, Eberts telephoned Bristol and asked Bristol to come to the police station to be interviewed. Bristol went to the police station and, after Eberts conducted an interview there, Bristol left without any further action by the police. About a month later, Bristol telephoned the police to inquire about Mapp's condition. On none of these occasions did the police tell Bristol that he was under arrest or indicate that he would be charged with a criminal offense.

In August 2003, the Division of Forensic Science completed a certificate of analysis after performing tests on the blood sample drawn from Bristol at the hospital after the accident. The certificate of analysis indicated that Bristol's blood alcohol content at the time the sample was taken was 0.11 by weight by volume.

Issue:  Under Va. Code § 18.2-268.2(A), a person who operates a motor vehicle on a highway in Virginia is deemed to consent to have a sample of his blood or breath taken for chemical analysis if he is arrested for a violation of Code § 18.2-266 or certain other related statutes within three hours of the alleged offense.  Had Bristol been arrested at the hospital when his blood sample was drawn?

Answer:  No (5-2, Justice Keenan for the court).

  1. An arrest requires a sufficient show of authority by the police (such that a reasonable person would feel that she is not free to leave or to ignore the police’s requests and terminate the encounter) combined with either submission to that show of authority of physical control of the suspect by the police.  In this case, the police never physically restrained Bristol, nor did he ever submit to the authority of the police.  “In the present case, it is undisputed that neither Officer Doyle nor Officer Eberts physically restrained Bristol at the hospital after Officer Doyle told Bristol that he was ‘under arrest.’ Therefore, Bristol was arrested at the hospital only if his consent to the blood test constituted a complete surrender of his personal liberty in submission to Officer Doyle's assertion of authority. We conclude that Bristol's consent to the blood test was not such a surrender of his personal liberty. Bristol merely agreed to submit to a blood test. He did not make any statement nor did he act in a manner demonstrating a complete surrender of his personal liberty to Officer Doyle's control.

    “The events that occurred at the hospital confirm the limited nature of Bristol's acquiescence. After Officer Doyle informed Bristol of the implied consent provisions of Code § 18.2-268.2 and Bristol agreed to have the blood sample drawn, Doyle did not restrict Bristol's movements in any manner. Officer Doyle merely accompanied Bristol to the emergency room where Bristol's blood was drawn. Officer Doyle then left the hospital, taking no action to constrain Bristol's personal liberty. Likewise, Officer Eberts did not act in a manner that could be construed as constraining Bristol's personal liberty. Bristol left the hospital on his own, and the police did not take any immediate action to restrain him. Thus, Bristol's consent to the blood test did not constitute a submission to police authority resulting in an arrest.”
  1. The dissenters disagreed.  They argued that what transpired after Bristol signed the consent form is irrelevant.  The facts must be assessed as of that moment.  They concluded that Bristol’s signing of the consent form constituted a submission to the officer’s authority.  “The impracticability of the majority opinion is illustrated by asking a simple question: During the very brief time between announcing the arrest and obtaining consent to take blood, what more was the officer expected to do with a seriously injured person whom the officer has informed is under arrest? Was the officer to handcuff Bristol or restrain him in some other manner and risk interference with his medical care? While the majority emphasizes that the officers involved may have failed to follow up properly after arrest, the actions of the officers after obtaining the blood sample are not relevant to the determination whether he was arrested at the hospital. Either Bristol was arrested or he was not; subsequent failures on the part of the police do not have any bearing on this question. Unfortunately, motor vehicle operators who are both injured and intoxicated arrive at hospital emergency rooms on a regular basis in this Commonwealth. This majority opinion unnecessarily, and, I believe, incorrectly impedes law enforcement officers in the performance of their duties.”

The dissenters raise an interesting question?  What should the arresting officer do in this situation to insure that the suspect is deemed to be under arrest?

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.