There are state laws that apply to implied consent in Fredericksburg DUI cases, as they do most other states. The law says that when a person is lawfully arrested for driving under the influence of alcohol or drugs, they consent to breath or blood tests to determine the presence of blood alcohol content or presence of drugs. In other words, once there is a valid arrest decision, the implied consent statute kicks in.
The person must be informed about implied consent before being charged and convicted or found in violation for a refusal. The officer must read the implied consent information to the person and the arrest must be within three hours of the driving behavior. If you are facing charges for driving under the influence, a Fredericksburg DUI lawyer can give you peace of mind regarding implied consent in Fredericksburg DUI cases.
A first-time refusal charge is a civil violation in Virginia. Section 18.2-268.3 states that it is a civil violation for a first offense, not a criminal charge. It is a civil violation with a very serious penalty. In implied consent in Fredericksburg DUI cases, when found guilty of a first offense refusal, the privilege to operate a vehicle in Virginia is suspended for 12 months. It is a “hard loss” and a very powerful tool because the individual is not eligible for a restricted license for that 12-month period.
When an individual is charged with second or third offense refusal, the civil charge is elevated to a Class 1 misdemeanor with similar hard loss penalties. In practical terms, for a second or subsequent refusal, an individual also faces jail time or fines in addition to the hard loss of license for an extended period of time.
An individual can be charged with second offense refusal even if they were never convicted of a first offense refusal. The most common way someone is charged with second offense refusal is when they have a first offense DUI and were found guilty and years later are arrested again and refused that second time. When that happens, both the DUI and the refusal are charged as a second offense even though the person does not have a prior refusal offense. As long as a person has a prior DUI conviction, the refusal is considered a second.
Implied consent in Fredericksburg DUI cases also creates permissive inferences that an individual is in violation of a statute at a calculated level. This means that implied consent of the breath test or the blood test numbers can be used against an individual. Rather than the breath or blood test simply saying 0.10, it triggers the 0.10 as permissive inference when someone is in violation of a statute where 0.08 is the legal limit. Implied consent also triggers the permissive inferences regarding the legal limit and it further triggers the mandatory sentencing issues.
Making a challenge to implied consent in Fredericksburg DUI cases is often difficult. To do so, an individual must build a variety of strategies that offer some proof that the officer failed to read the implied consent statute to the accused.
In Virginia and in Fredericksburg, the officers have an implied consent form they fill out and read. If the magistrate endorses that form and the officer says they read to the accused, it is prima facie evidence that the person refused and is in violation. When there is no refusal affidavit in the file that may be a good defense.
The refusal affidavit explains implied consent. The officer reads and signs the document in front of the magistrate. In a refusal case, the introduction of the refusal affidavit is enough evidence by itself. It can be set forth as an official case on its own. Prima facie means “on its face alone” and it is often taken to mean “is enough evidence by itself.” The officer does not have to testify more specifically and other testimonial evidence is not viewed as strongly as that evidence.
Patrick Woolley Attorney At Law