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Virginia court rejects DUI blood alcohol evidence

The Virginia Court of Appeals recently ruled that the blood alcohol certificate of a driver charged in the alcohol-related deaths of two university students could not be used as evidence against him at trial.

The driver struck the two students head-on as they were traveling west on Interstate 64. Both students sustained fatal injuries. For reasons that are not entirely clear, the driver was not placed under arrest within three hours.

Yet that three-hour arrest time frame is significant: Virginia's implied consent law requires DUI-related blood tests to be administered within that window. Since the police apparently failed to follow that procedure, the evidence cannot be used against the driver at trial.

The state's implied consent law provides that any driver who has been lawfully arrested for DUI is deemed to have given implied consent to blood or Breathalyzer testing. The wording in the law is deliberate. Implied consent can be negated by a driver's express refusal, but at a cost: Specifically, a first refusal to testing usually results in a license suspension for one year. In the case of any subsequent refusals, the driver will be charged with a misdemeanor.

In light of those refusal consequences, a driver might be best served by consenting to a test, and then consulting with an experienced DUI defense attorney. An attorney will examine the arrest record to ensure that the prerequisite probable cause was present -- both for the initial stop, as well as for the subsequent breath or blood testing. By holding prosecutors to their procedural burdens of proof, an attorney will protect your rights.

Source: Daily Press, "Court rules blood certificate can't be used in fatal CNU crash," Ashley Kelly, Jan. 23, 2013

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