Implied Consent Amendments

Posted by Paul McGlone | Mar 08, 2010 | 0 Comments

Virginia legislature is pushing for another Anti-DUI amendment.   This time, they are pushing closer to disregarding the 4th amendment.

For years, DUI attorneys have had the ability to exclude blood tests in certain cases if the client was not actually arrested before being taken to a hospital for blood draw.  

The complaint by the Commonwealth was that they couldn't physically arrest the person who was hurt in an accident, so they wanted to be allowed to draw blood anyway.

These amendments being offered at the 2010 session of the Virginia General Assembly are intended to widen the scope of the implied consent law. 

Our implied consent law has always required us to submit to a breath test, or sometimes a blood test, if we are arrested for probable cause for DWI.    In the absence of probable cause, there is no valid arrest, and no duty to take a breath or blood test. 

These amendments, proposed in two different versions, attempt to expand the duty to take a blood test to any case where there is probably cause even if they don't actually make an arrest.  

The concern of Defense counsel is that they will try to expand the definition of probable cause to include anybody who has alcohol on their breath, if there has been an accident.  

Very often, there are no Field Sobriety Tests (due to injury), and nobody has even seen the client drive a car, but Judges are under pressure to find that there is probably cause with very little evidence.  

These amendments push closer to the days when every driver who has any alcohol will be considered an outlaw.    The MADD prohibitionists continue to push onward, with very little resistance from anybody interested in fighting for our civil liberties.  

About the Author

Paul McGlone

Experience: Attorney McGlone has handled 1,000's of cases in Fairfax County Courts. Paul McGlone knows all of the best practices to give his clients all advantages available for the best results.  Paul McGlone has attended 100's of hours of professional training in the highly specialized area...


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