793 S.E.2d 811
Va. Ct. App.2016Background
- At ~2:45 a.m., Deputy Iverson stopped Sean Wolfe for speeding and, from signs and field tests, arrested him for DUI after a preliminary breath test showed .182% BAC.
- At the jail, Iverson attempted an evidentiary breath test and instructed Wolfe not to belch/burp during the 20-minute observation period; Wolfe burped three times.
- After the third burp, Iverson transported Wolfe for a blood draw; no warrant was obtained and Wolfe did not physically or verbally refuse the blood draw (he said he did not like needles).
- The Virginia Department of Forensic Science later reported the blood alcohol content as .196%.
- Wolfe moved to suppress the blood-test results arguing lack of consent and absence of a warrant; he also objected to testimony about his inability to complete the breath test.
- The trial court denied suppression and admitted testimony about the breath test attempts; Wolfe was convicted of DWI and appealed.
Issues
| Issue | Wolfe's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Whether warrantless blood draw violated Fourth Amendment | Blood drawn without a warrant and without consent — suppress results | Implied-consent statute made blood draw permissible; Wolfe did not validly refuse and no criminal penalty threatened for refusal | Affirmed: implied consent under Va. Code §18.2-268.2 authorized blood draw; no warrant required here |
| Whether testimony of failure to complete breath test was admissible | Such evidence improperly comments on refusal and is prohibited | Evidence was necessary to establish breath-test unavailability, a prerequisite to lawful blood testing | Affirmed: testimony admissible to explain why breath test could not be completed and why blood draw occurred |
Key Cases Cited
- Missouri v. McNeely, 133 S. Ct. 1552 (2013) (blood tests are searches; exigency depends on circumstances)
- Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) (distinguished civil implied-consent sanctions from criminal penalties for refusal to submit to blood tests)
- Schmerber v. California, 384 U.S. 757 (1966) (blood test constitutes a search under the Fourth Amendment)
- Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (consent is an exception to the warrant requirement)
- Deaner v. Commonwealth, 210 Va. 285 (1969) (Virginia treats implied-consent procedures as civil and separate from criminal DUI prosecution)
- Cash v. Commonwealth, 251 Va. 46 (1996) (implied consent is not conditional; refusal consequences are civil)
- Rowley v. Commonwealth, 48 Va. App. 181 (2006) (reiterating that implied consent is civil in nature and not qualified)