871 S.E.2d 629
Va. Ct. App.2022Background
- Officer Ciarrocchi responded to a single-vehicle crash; the car was unoccupied, the engine warm, and several beer containers were outside the driver’s door.
- Park emerged nearby, admitted the crashed car was his, appeared uninjured, but had slurred speech, bloodshot/glassy eyes, and smelled of alcohol; he could not find his license.
- Park refused field sobriety tests; officer arrested him for DUI, transported him to a detention center, and requested a breath sample; Park refused.
- Officer read the standard “Information About Consequences of Refusal” form (Form DC-233); a search warrant for blood was obtained and blood alcohol tested at 0.141%.
- Park was charged with DUI (later dismissed at bench trial) and refusal to submit to a breath test, second offense; he moved to suppress the blood result and appealed after conviction for refusal.
Issues
| Issue | Park’s Argument | Commonwealth’s Argument | Held |
|---|---|---|---|
| Probable cause for arrest | Arrest lacked probable cause; accident alone insufficient and beer may have been consumed after crash | Crash plus Park’s admission, intoxication signs, inability to locate license, and refusal of FSTs supplied probable cause | Probable cause existed; arrest lawful |
| Duty to offer preliminary breath test (PBT) and remedy | Officer failed to offer PBT under Code §18.2‑267; arrest unlawful and evidence should be suppressed | Officer had duty to offer PBT, but statutory failure does not trigger exclusion of evidence | Officer must offer PBT, but statutory violation does not require suppression; motion denied |
| Adequacy of refusal form (DC‑233) | Form misled Park by not warning that police could obtain blood via warrant, so he reasonably relied on it | Form satisfied the statutory content requirement; no affirmative duty to warn about warrant blood draws | Form adequate under statute; no due process violation found |
| Sufficiency of evidence (driver status and reasonableness of refusal) | Commonwealth failed to prove Park operated the vehicle; refusal was reasonable because he may have drunk after driving | Evidence corroborated Park as driver; post‑driving consumption is a factual defense, not a lawful basis to refuse testing | Evidence sufficient: trial court could find Park was driver and his refusal was unreasonable; conviction affirmed |
Key Cases Cited
- Wohlford v. Commonwealth, 3 Va. App. 467 (Va. Ct. App. 1986) (failure to comply with Code §18.2‑267 does not alone invalidate arrest or require suppression)
- Jones v. Town of Marion, 28 Va. App. 791 (Va. Ct. App. 1999) (purpose of PBT is to provide an objective, on‑scene check on probable cause)
- Seaton v. Commonwealth, 42 Va. App. 739 (Va. Ct. App. 2004) (statutory violation does not warrant exclusion unless statute provides remedy)
- Deaner v. Commonwealth, 210 Va. 285 (Va. 1969) (implied consent is not qualified or conditional; permissible bases to refuse are narrow)
- Brothers v. Commonwealth, 50 Va. App. 468 (Va. Ct. App. 2007) (reasonableness of refusal limited; health risks may justify refusal)
- Allen v. Commonwealth, 287 Va. 68 (Va. 2014) (corpus delicti rule requires independent corroboration of extrajudicial confession)
- Al‑Karrien v. Commonwealth, 38 Va. App. 35 (Va. Ct. App. 2002) (probable cause standard discussion)
- Doscoli v. Commonwealth, 66 Va. App. 419 (Va. Ct. App. 2016) (review of probable cause is a legal question reviewed de novo)