Shin v. Commonwealth
294 Va. 517
| Va. | 2017Background
- On Aug. 29, 2015, Nathan Lee Shin was arrested on suspicion of DWI; the arresting officer requested a breath test and advised him with the statutorily prescribed Implied Consent Declaration stating breath test first, blood only if breath is unavailable.
- Shin refused both tests, signed a Declaration of Refusal, and was charged with DWI (2nd), unreasonable refusal of breath or blood test (2nd), and improper lane change.
- After conviction in general district court, Shin appealed; the circuit court tried the DWI and lane-change charges by jury (acquitted of DWI, convicted of lane change) but treated the unreasonable-refusal charge as a legal issue and took it under advisement.
- The circuit court found Shin’s refusal unreasonable under Code § 18.2-268.3 and suspended his license for one year; Shin appealed to the Supreme Court of Virginia.
- Shin argued the implied-consent law (1) imposes an unconstitutional condition on driving (Fourth Amendment waiver), (2) is unconstitutionally vague for lacking an objective standard of “reasonable” refusal, and (3) violates Article I, § 8 of the Virginia Constitution against self-incrimination.
- The Supreme Court of Virginia affirmed: the officer lawfully demanded a breath test (warrantless breath tests are permitted), Shin’s subjective belief he was not intoxicated is not an objectively reasonable refusal, and compelled breath/blood samples are not testimonial under Article I, § 8.
Issues
| Issue | Shin's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Whether conditioning driving privileges on submitting to chemical tests is an unconstitutional condition forcing waiver of Fourth Amendment rights | Implied consent forces surrender of Fourth Amendment (blood) to keep driving privileges; refusing was reasonable | Implied consent conditions include breath tests, which are permitted warrantless searches; record shows officer demanded breath first, not blood | Court: No unconstitutional condition as applied — demand was for breath (warrantless under Birchfield), so refusal was unreasonable |
| Whether Code § 18.2-268.3 is void for vagueness because "reasonable" refusal lacks objective standard | Statute gives no fixed objective standard; leads to arbitrary enforcement | There are objective standards (e.g., health risk) and case law; a facial challenge fails unless statute unconstitutional as applied | Court: Shin lacked standing — his refusal (subjective belief of sobriety) was not objectively reasonable; facial vagueness challenge fails |
| Whether compelled breath/blood samples violate Article I, § 8 of the Virginia Constitution (self-incrimination) | Blood/breath samples are "evidence" and forcing them compels evidence against oneself, violating Article I, § 8 | Physical samples are non-testimonial/incriminating but not "testimony" or communicative; precedent permits such compulsion | Court: Article I, § 8 protects testimonial self-incrimination only; breath/blood are non-testimonial and not protected |
| Whether the record shows officer demanded blood (raising separate Fourth Amendment issues) | Officer demanded both blood and breath, so refusal to both was reasonable without warrant for blood | Declaration & form show breath was demanded first; blood only if breath unavailable or physically impossible | Court: Demand was for breath; blood was conditional; did not reach blood-draw Fourth Amendment/unconstitutional-conditions question |
Key Cases Cited
- Frost & Frost Trucking Co. v. Railroad Comm'n of Cal., 271 U.S. 583 (principle against conditioning a privilege on surrender of constitutional rights)
- National Dairy Prods. Corp. v. United States, 372 U.S. 29 (void-for-vagueness standards)
- Giaccio v. Pennsylvania, 382 U.S. 399 (statute vague if it leaves no fixed standards for judges/jurors)
- Counselman v. Hitchcock, 142 U.S. 547 (broad construction of self-incrimination protections)
- Schmerber v. California, 384 U.S. 757 (physical evidence like blood tests are non-testimonial)
- Missouri v. McNeely, 569 U.S. 141 (warrant required for blood draw when reasonably obtainable)
- Birchfield v. North Dakota, 579 U.S. (warrantless breath tests permitted incident to arrest)
- Cash v. Commonwealth, 251 Va. 46 (a driver’s subjective belief of sobriety is not a reasonable basis to refuse testing)
- Walton v. City of Roanoke, 204 Va. 678 (Virginia precedent that compelled physical tests are not testimonial under Article I, § 8)