DUI / DWI — § 18.2-266

Va. Code § 18.2-266 — Prosecutor Reference

Primary statute: § 18.2-266
Last verified: 2026-06-09

1. Charging Decision

Theory	Statute / Prong	What You Need
BAC ≥ 0.08 (per se)	§ 18.2-266(i)	Blood or breath test result ≥ 0.08 g/210L (breath) or g/100mL (blood); no additional impairment proof required
BAC 0.15–0.20 (aggravated)	§ 18.2-270(A)	Same per se; aggravated mandatory minimum kicks in at ≥ 0.15
BAC > 0.20 (super aggravated)	§ 18.2-270(A)	Same per se; higher mandatory minimum ≥ 0.20
Impaired by alcohol (common law)	§ 18.2-266(ii)	Totality of officer observations + FSTs; useful when no valid test result
Impaired by self-administered drug (not controlled)	§ 18.2-266(iii)	Officer observations, DRE, and drug evidence; no per se limit
Impaired by controlled substance	§ 18.2-266(iv)	Blood test + DRE + officer observations; per se blood-level thresholds for some substances
Impaired by combination	§ 18.2-266(v)	Any combination of alcohol/drugs impairing ability to drive safely
Commercial vehicle / CDL (.04 BAC)	§ 46.2-341.24	Separate statute; lower threshold; note on warrant for blood
Habitual offender / 3rd DUI within 10 yrs	§ 18.2-270(C)	Felony; obtain certified prior conviction records before indicting
DUI maiming (serious bodily injury)	§ 18.2-51.4	Aggravated unlawful wounding level; injury must be serious and permanent

2. Elements — All Five Prongs

Operation of a motor vehicle Defendant was operating (not merely occupying) a motor vehicle. 'Motor vehicle' defined at § 46.2-100. Operation includes the vehicle in motion and the defendant in the driver's seat with keys available.
On a public highway or other defined location Public highway, or any other place open to the use of the public for purposes of vehicular traffic — includes parking lots open to the public. See § 18.2-266.
While under the influence / impaired BAC ≥ 0.08 (prong i), impaired by alcohol (prong ii), impaired by self-administered drug (prong iii), impaired by controlled substance (prong iv), or impaired by any combination (prong v).
Identification Defendant is the person who operated the vehicle. In post-accident cases, link the defendant to the vehicle through witness testimony, admissions, vehicle registration, and scene evidence.
Venue Offense occurred within the jurisdiction.

3. Mandatory Minimums — § 18.2-270

Offense	Grade	Active Jail / Fine	License
1st offense, BAC < 0.15	Class 1 misdemeanor	No mandatory jail; fine $250 minimum	Suspension per § 18.2-271
1st offense, BAC 0.15–0.20	Class 1 misdemeanor	5 days mandatory active	Suspension per § 18.2-271
1st offense, BAC > 0.20	Class 1 misdemeanor	10 days mandatory active	Suspension per § 18.2-271
2nd offense within 5 yrs (any BAC)	Class 1 misdemeanor	20 days mandatory active; $500 min fine	3-yr revocation
2nd offense within 5 yrs, BAC 0.15–0.20	Class 1 misdemeanor	30 days mandatory active	3-yr revocation
2nd offense within 5 yrs, BAC > 0.20	Class 1 misdemeanor	40 days mandatory active	3-yr revocation
2nd offense 5–10 yrs	Class 1 misdemeanor	10 days mandatory active; $500 min fine	3-yr revocation
3rd offense within 10 yrs	Class 6 felony	90 days mandatory (6 months if all 3 within 5 yrs)	Revocation
4th or subsequent	Class 6 felony	1 year mandatory active minimum	Revocation
Refusal (1st)	Civil — § 18.2-268.3	12-month suspension; no jail	12-month administrative suspension
Refusal (2nd / subsequent)	Class 1 misdemeanor — § 18.2-268.3	Up to 12 months; mandatory suspension	3-yr revocation

4. Stop, Arrest & Test — The Evidentiary Spine

Fourth Amendment — Stop

Traffic violation Any observed code violation — speeding, equipment violation, improper lane change — gives objective PC/RAS for the stop. Identify the specific violation in the charging document.
Reasonable articulable suspicion of DUI Erratic operation, straddling, weaving, wide turns, driving without headlights, or strong odor from an open window can provide independent RAS for a stop even without a traffic violation.
Accident scene / community caretaker An officer responding to an accident is not making an investigative stop; community caretaker doctrine applies. But ensure the connection between defendant and the accident is established.

Implied Consent — § 18.2-268.2

Any person operating a motor vehicle on a Virginia public highway is deemed to have consented to a blood or breath test if arrested for DUI. The officer must (1) have probable cause to arrest for DUI, (2) make the arrest, and (3) advise the defendant of implied consent rights and the consequence of refusal before the test is offered. The standard is arrest, not conviction.

Breath Test — EC/IR II Foundation

Officer certified to operate the EC/IR II (or equivalent instrument)
Machine last calibrated within 6 months (DFS calibration certificate)
Observation period: 20 minutes without eating, drinking, regurgitating, or using oral tobacco/mouthwash
Two readings within 0.02 of each other (if not, result is inadmissible)
Breath card (printout) properly identified and admitted
Certificate of breath test admissibility: § 18.2-268.9

Blood Test Foundation

Search warrant obtained (or recognized exigency documented)
Blood draw by qualified person under § 18.2-268.5 (physician, RN, phlebotomist, etc.)
Proper collection tube (gray-top / sodium fluoride) and chain of custody to DFS
DFS Certificate of Analysis: § 19.2-187 (PH 7-day rule) / § 19.2-187.1 (trial 28-day notice)
Analyst available to testify if defendant timely demands

Field Sobriety Tests — Foundation

HGN (Horizontal Gaze Nystagmus) Officer trained in NHTSA protocol; administered correctly; 6 clues of 6 maximum; medical conditions excluded. ⚠️ This sheet cites NO Virginia authority on HGN admissibility. The case formerly given for it was misattributed and has been removed (see Annotated Authority) — treat foundation as contested and check current authority before offering it.
Walk and Turn (WAT) 8 steps heel-to-toe each direction; 8 clues of 8 maximum. Ensure flat surface and proper instruction given.
One-Leg Stand (OLS) 30-second balance and count; 4 clues of 4. Physical condition exclusions.
Non-standardized FSTs Recite alphabet, finger-to-nose, Romberg balance — are admissible but lack the standardized NHTSA reliability basis; foundation as general officer observations.

5. Defense Moves & Responses

Defense attack	Prosecution response
Motion to suppress — no RAS for stop	Articulate the specific traffic violation or DUI indicia in the charging document. Subpoena the dash camera footage before the hearing. One-witness traffic-violation cases survive suppression routinely.
No PC for arrest — insufficient impairment signs before test	PC is the totality of circumstances: driving pattern, odor, red/watery eyes, flushed face, slurred speech, poor FST performance. Each factor contributes — document all in the narrative.
Rising BAC — BAC at time of test higher than at time of driving	Retrograde-extrapolation expert can testify to BAC at time of driving. The statutory presumption (§ 18.2-268.9) creates a rebuttable inference that the test result reflects the BAC at the time of operation.
FST reliability — medical condition, physical limitation, age	Elicit the pre-test FST screening questions (officer asks about physical conditions before administering). Emphasize the non-FST observations — odor, speech, eyes — independently sufficient.
HGN inadmissible — improper foundation	Ensure the officer is NHTSA-certified and followed the standardized protocol. ⚠️ Find current Virginia authority before the hearing — this sheet no longer cites any, the case previously listed having been misattributed. If foundation fails, HGN is excluded — but the remaining FSTs and observations still support impairment.
Observation period not met — defendant ate, smoked, or burped	Officer testifies the defendant did not eat, drink, burp, or regurgitate during the 20-minute observation. Continuous observation in the cruiser or at the station.
Machine not calibrated / calibration gap	DFS calibration certificates must be within 6 months. Obtain and admit the calibration record. If the machine was calibrated, the gap argument fails.
Mouth alcohol — elevated reading due to residual	The 20-minute observation period is designed to eliminate mouth alcohol. Two-reading requirement and the EC/IR II's mouth-alcohol detector address this. Officer observed no belching or regurgitation.
Two readings outside 0.02 — both readings should be excluded	If the readings exceed 0.02 variance, the per se prong fails — pivot to common-law impairment (prong ii) based on officer observations and FSTs.
Blood draw not by qualified person (§ 18.2-268.5)	Confirm the credentials of the draw nurse/phlebotomist at intake. Certified phlebotomist and trained medical personnel qualify. VA has a broad qualified-persons list.
Chain of custody gap in blood	Officer testimony: scene to evidence room. DFS COA covers receipt forward. Prepare the officer explicitly on handoff. Any gap in the middle is argued to weight, not admissibility, unless the defendant shows actual tampering.
No proof of operation — defendant was parked / asleep	Operation includes more than moving: engine running, keys in ignition, defendant in driver's seat with ability to control. Admission of recent driving, witnesses, or accident scene is strong proof.
Not a public highway — private parking lot	Virginia courts have broadly construed 'public highway' to include areas open to the general public for vehicular traffic. Parking lots of shopping centers and restaurants qualify.
Refusal — officer failed to properly advise	The implied-consent form and the officer's verbal advisement must comply with § 18.2-268.2. If proper advisement is given and defendant refuses, the refusal is admissible.
Breath test — simulator solution expired or not used	DFS calibration protocol governs simulator solution. The calibration certificate reflects whether the solution was within specifications. Check the certificate.
Blood test — improper anticoagulant / preservative tube	Gray-top (sodium fluoride / potassium oxalate) is the required tube. If a red-top was used, the result may be challenged — consult DFS before trial. The DFS COA notes the tube type.
Denial of blood test — defendant asked for blood and was denied	§ 18.2-268.2 gives the defendant the right to an additional blood test at their own expense. Failure to accommodate may affect admissibility — confirm procedure was followed.
Statute of limitations — misdemeanor not charged within 1 year	Misdemeanor DUI has a 1-year SOL. Confirm the warrant was issued within 1 year of the offense. In hit-and-run/accident cases, confirm the ID date triggers the period.

6. GDC Trial Script

A. Foundation / ID

What is your current assignment? How long have you been with this agency?
Describe your training in DUI investigation and field sobriety testing — NHTSA certified?
Do you see the defendant in court today? Please identify them by name and by description.
Were you on duty on [date] at approximately [time] in [jurisdiction]?

B. Stop / Initial Contact

What first drew your attention to the defendant's vehicle? Describe the driving you observed.
What specific traffic violation or driving behavior caused you to initiate a stop?
Describe where you stopped the vehicle and the lighting and road conditions.
How did the defendant respond when you approached? What was your first impression?

C. Impairment Observations

Describe what you observed about the defendant's eyes — red, watery, bloodshot?
Did you detect an odor of alcohol? Describe the odor — strong, moderate, slight?
Describe the defendant's speech — slurred, thick-tongued, normal?
Did the defendant have difficulty with coordination in producing their documents?
Describe the defendant's overall appearance and demeanor.
Did the defendant make any statements about drinking?

D. FSTs

Did you ask the defendant to perform field sobriety tests? Did the defendant agree?
Did you ask about any medical conditions, injuries, or footwear that might affect performance?
Describe how you instructed the defendant in the HGN test. [Describe result — clues observed.]
Describe how you instructed the Walk and Turn. [Describe result.]
Describe how you instructed the One-Leg Stand. [Describe result.]
Based on your training and experience, did the defendant's FST performance indicate impairment?

E. Arrest and Implied Consent

Based on your observations, did you place the defendant under arrest for DUI? At what time?
After the arrest, what did you tell the defendant about the breath test?
Did you read the defendant the implied consent form? What was their response?

F. Breath Test

Where was the breath test administered — in your cruiser, at the station?
Identify the instrument used and its DFS certification status.
Describe the 20-minute observation period — did the defendant eat, drink, burp, or regurgitate?
Walk us through the test procedure. What were the two results?
Showing you Exhibit ___: is this the breath card from the test? Were the two readings within 0.02 of each other?

G. Prior Convictions (if applicable)

I'm showing you Exhibit ___ — do you recognize this? [Certified prior conviction records.] Are these the defendant's prior DUI conviction records?

7. Sentencing Argument Framework

Mandatory Minimum First

State the mandatory minimum that applies (BAC level, prior offenses) and confirm for the court that the minimum is non-negotiable. Do not accept a sentence below the mandatory minimum.

Aggravating Factors

High BAC (0.15+, 0.20+)
Accident — property damage or injury
Child passenger in vehicle
Speed — significantly above the limit
Prior DUI history beyond the mandatory-minimum-triggering priors
Active license suspension or revocation at time of offense
Refusal to submit to testing
Flight from the scene

License and VASAP

Address the license suspension under § 18.2-271 and the VASAP requirement under § 18.2-271.1. Confirm whether the court will impose the restricted license and the VASAP enrollment requirement as conditions of any probation or restricted operation privilege.

Restitution / Victim Impact

If there was an accident, present restitution evidence — repair costs, medical bills, lost wages. Under § 19.2-11.01, the victim has the right to be heard at sentencing.

Ignition Interlock

Under § 18.2-270.1, ignition interlock is required as a condition of any restricted license. Confirm the court imposes this requirement.

Probation Conditions

Request that any probationary period include conditions prohibiting any alcohol use, requiring random breath or urine testing, and prohibiting operation of a motor vehicle without an ignition interlock device.

Felony Third Offense

For third-offense felony DUI, argue the minimum active time required (90 days / 6 months if all within 5 years), and that the recidivism pattern demonstrates the need for a longer active sentence. The defendant has failed to respond to prior sanctions.

Closing

DUI is not a victimless offense — the harm is the risk of death or serious injury created for every other person on the road. The defendant chose to drive. The sentence must reflect both the offense and the ongoing public safety risk.

8. Key Cases

Enriquez v. Commonwealth 283 Va. 511, 515-17, 722 S.E.2d 252, 254-55 (2012)

binding

THE OPERATION RULE. "[W]hen an intoxicated person is seated behind the steering wheel of a motor vehicle on a public highway and the key is in the ignition switch, he is in actual physical control of the vehicle and, therefore, is guilty of operating." The Code § 46.2-100 definition of "operator" controls, and the position of the key in the ignition switch is NOT determinative. The engine need not be running.

Sarafin v. Commonwealth Record No. 131747 (Va. Oct. 31, 2014)

binding

§ 18.2-266 contains NO "on a highway" requirement. Operating while intoxicated in one's own private driveway is within the statute. The section applies equally to "engine[s] or train[s]", which run on privately owned track — a public-road requirement would read those words out.

Williams v. City of Petersburg 216 Va. 297, 300, 217 S.E.2d 893, 896 (1975)

binding

Operating includes "manipulating the mechanical or electrical equipment of the vehicle . . . which alone, or in sequence, will activate the motive power of the vehicle". ⚠️ Not the "Williams" formerly listed on this sheet for refusal evidence — that entry has been removed.

Stevenson v. City of Falls Church 243 Va. 434, 416 S.E.2d 435 (1992)

persuasive

⚠️ LARGELY SUPERSEDED BY ENRIQUEZ. Conviction reversed where everything was switched off and the officer could not recall the key's position, the Court assuming it was "off". Enriquez adopted the Stevenson DISSENT as correct, so cite Enriquez, not Stevenson, and expect the defence to try Stevenson anyway.

Birchfield v. North Dakota 579 U.S. 438 (2016)

binding

"[A] breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving." And "motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense" — implied consent will not carry a blood draw.

Missouri v. McNeely 569 U.S. 141 (2013)

binding

Natural metabolization of alcohol is NOT a per se exigency. Dissipation "may support an exigency finding in a specific case . . . but it does not do so categorically" — exigency is judged on the totality of the circumstances.

Mitchell v. Wisconsin 588 U.S. 840 (2019) (plurality)

persuasive

⚠️ A PLURALITY, NOT A MAJORITY — four Justices; Thomas concurred in the judgment only. Where unconsciousness or stupor requires hospitalisation before a breath test is possible, officers "may almost always order a warrantless blood test". The judgment was VACATED AND REMANDED to let Mitchell try to show his was the unusual case.

Melendez-Diaz v. Massachusetts 557 U.S. 305 (2009)

binding

Analyst certificates "are quite plainly affidavits" and "fall within the core class of testimonial statements". If the defendant timely demands, the analyst must testify — see § 19.2-187.1.

Georgia v. Randolph 547 U.S. 103 (2006)

binding

A physically present co-occupant's stated refusal renders a warrantless search unreasonable and invalid as to him. ⚠️ Randolph is a DWELLING case; applying it to a vehicle search is an extension, not a holding.

9. Pre-Court Sanity Checklist

Defendant identified — name match between warrant and records
Prior conviction records obtained — certified copies, not just DMV abstract
Prior conviction records filed / disclosed per local rules
Offense grade confirmed — misdemeanor or felony (3rd/4th offense within statutory window)
Mandatory minimum calculated and verified against current § 18.2-270
Stop basis documented — traffic violation or RAS specified in narrative
Dash camera footage reviewed and preserved
Body camera footage reviewed and preserved
Breath test: calibration certificate within 6 months — subpoenaed and available
Breath test: 20-minute observation documented; two readings within 0.02
Blood test: warrant in file or exigency documented; qualified draw person confirmed
DFS COA: obtained; filed with clerk ≥7 days before hearing if at PH stage
DFS COA: 28-day trial notice sent if trial; analyst availability confirmed if demand expected
FST foundation: officer NHTSA-certified; administered per standardized protocol
Officer prepared on implied-consent advisement procedure
Refusal: properly noticed if charged as separate offense under § 18.2-268.3
Victim/injured party notified of hearing date (§ 19.2-11.01) if accident case
VASAP and ignition interlock requirements identified for sentencing argument

10. Annotated Authority

Annotated authority — research layer, not printed on the PDF

Enriquez v. Commonwealth 283 Va. 511, 515-17, 722 S.E.2d 252, 254-55, Va., 2012

THE OPERATION RULE, and the case that made these prosecutions winnable. The statutory definition in Code § 46.2-100 is CONTROLLING — "any individual who is in ACTUAL PHYSICAL CONTROL of a vehicle is an 'operator'" — and "THE POSITION OF THE KEY IN THE IGNITION SWITCH IS NOT DETERMINATIVE." The Court adopted the DISSENT in Stevenson as correct and established the rule: "when an intoxicated person is SEATED BEHIND THE STEERING WHEEL of a motor vehicle on a public highway and THE KEY IS IN THE IGNITION SWITCH, he is in actual physical control of the vehicle and, therefore, IS GUILTY of operating the vehicle while under the influence." The engine need not be running; the defendant was asleep in a parked car with the radio on.

Practical value: Three facts make the case: intoxicated, behind the wheel, key in the ignition. Prove those and you are done — the officer's inability to say whether the key was turned to "on" is no longer fatal, which is exactly what sank Stevenson. ⚠️ Note the words "ON A PUBLIC HIGHWAY" in the rule. Sarafin later held that phrase was NOT a requirement of § 18.2-266 at all, so do not let it limit the charge.

Sarafin v. Commonwealth Record No. 131747 (Va. Oct. 31, 2014), Va., 2014

"[W]e hold that CODE § 18.2-266 CONTAINS NO 'ON A HIGHWAY' REQUIREMENT for the operation of motor vehicles." Sarafin was asleep in the driver's seat in HIS OWN PRIVATE DRIVEWAY with the key turned back to auxiliary power, and that was enough. The reasoning is textual: § 18.2-266 applies equally to motor vehicles, ENGINES AND TRAINS, and trains run on privately owned track — reading in a public-road requirement would read "engine[s] or train[s]" out of the statute.

Practical value: This is the answer to "he was on private property". A driveway, a private lot, a field — the location element that defence counsel reaches for is not in the statute. ⚠️ Its reporter citation could NOT be confirmed: CourtListener has no citation on record for the Supreme Court's decision. Only the COURT OF APPEALS decision below is reported, at 62 Va. App. 385, 748 S.E.2d 641 (2013) — and it went the OTHER WAY on this point, so do not cite it by mistake.

Williams v. City of Petersburg 216 Va. 297, 298, 300-01, 217 S.E.2d 893, 894, 896, Va., 1975

The definition Enriquez still quotes: operating a motor vehicle includes "MANIPULATING THE MECHANICAL OR ELECTRICAL EQUIPMENT of the vehicle . . . which ALONE, OR IN SEQUENCE, WILL ACTIVATE THE MOTIVE POWER of the vehicle." Conviction UPHELD where a drunk defendant was found slumped over the steering wheel on a PAVED PARKING LOT with the motor running, headlights off and the doors closed and locked.

Practical value: Two uses. It supplies the electrical-equipment route to operation — the radio, the heater, the headlights — which is what catches the defendant who never touched the gear selector. And its facts are a PARKING LOT, which is the nearest real authority for the parking-lot proposition this sheet used to attribute to a case that does not exist. ⚠️ NAME COLLISION: this is NOT the "Williams v. Commonwealth" formerly listed here for refusal evidence. That entry carried no citation and has been removed.

Stevenson v. City of Falls Church 243 Va. 434, 435-36, 438-40, 416 S.E.2d 435, 436, 438-39, Va., 1992

Conviction REVERSED. A drunk defendant asleep behind the wheel on a convenience-store lot, "engine and all other mechanical and electrical parts turned off, and key in the ignition, but ARRESTING OFFICER COULD NOT RECALL whether key was in the 'on' or the 'off' position" — and "[i]n reversing, this Court said it would ASSUME THE KEY WAS IN THE 'OFF' POSITION."

Practical value: ⚠️ READ THIS ONE WITH ENRIQUEZ OR NOT AT ALL. Enriquez held "the DISSENTING OPINION IN STEVENSON WAS CORRECT" and that the key's position is not determinative, which removes the ground Stevenson stood on. It is still what the defence will cite, and the answer is Enriquez by name. The dissent's reasoning — that a drunk behind the wheel "is likely to arouse abruptly, engage the motive power of the vehicle, and roar away" — is now the law.

Overbee v. Commonwealth 227 Va. 238, 240-41, 245, 315 S.E.2d 242, 243, 245, Va., 1984

The other REVERSAL, and the one that survives Enriquez intact: a drunk defendant found STANDING IN FRONT OF a pickup truck with the HOOD UP, the ENGINE NOT RUNNING and the KEY NOT IN THE IGNITION was not operating the vehicle.

Practical value: The genuine limit against the Commonwealth, and worth knowing precisely because Enriquez swept so much else away. Out of the seat, key out of the switch — there is no case. Screen the file against Overbee before charging.

Nelson v. Commonwealth 281 Va. 212, 214-15, 219, 707 S.E.2d 815, 815-16, 818, Va., 2011

Conviction UPHELD where the defendant was hunched over in the driver's seat of a vehicle parked on a CUL-DE-SAC with THE RADIO PLAYING and the ignition key in an "ON OR ACCESSORY POSITION". Enriquez also cites it for the standard of review — whether a defendant operated a vehicle within § 18.2-266 is a MIXED QUESTION OF LAW AND FACT reviewed DE NOVO on appeal.

Practical value: The nearest factual match to the ordinary case: parked, asleep, radio on. Note the de novo standard — the operation question is not protected by the usual deference on appeal, so build the record with the specific facts Enriquez names rather than relying on the judge's conclusion.

Rix v. Commonwealth 282 Va. 1, 1, 3, 714 S.E.2d 561, 561-62, Va., 2011

Conviction UPHELD where the drunk defendant EXCHANGED SEATS WITH THE DRIVER and was found sitting behind the steering wheel with the keys in the ignition and the engine running.

Practical value: For the case where the defendant says he was not the one driving. Swapping into the driver's seat is itself operation — it does not matter who drove the car to where it stopped.

Gallagher v. Commonwealth 205 Va. 666, 667, 670, 139 S.E.2d 37, 38, 40, Va., 1964

The earliest of the line. Conviction UPHELD where the drunk defendant was sitting at the steering wheel of a car STUCK IN A DITCH with the MOTOR RUNNING, the CAR IN GEAR and A REAR WHEEL SPINNING.

Practical value: Sixty years of consistent authority behind the proposition that a vehicle going nowhere is still being operated. Useful when the defence argument is that the car could not have moved.

Nicolls v. Commonwealth 212 Va. 257, 258, 259, 184 S.E.2d 9, 10, 11, Va., 1971

Conviction UPHELD where the drunk defendant was found slumped over the steering wheel of a car parked on the HARD SURFACE OF A ROAD with the MOTOR RUNNING, HIGH BEAM LIGHTS ON and the HEATER IN OPERATION.

Practical value: The electrical-equipment facts Williams describes, in their clearest form. Ask the officer what was switched on — lights, heater, radio — because each one is an item of the mechanical or electrical equipment the definition turns on.

Lyons v. City of Petersburg 221 Va. 10, 11-13, 266 S.E.2d 880, 880-82, Va., 1980

Conviction UPHELD where the drunk defendant was found seated behind the steering wheel of a car and MADE NO STATEMENT about his having struck an unoccupied parked car in the rear and pushed it TWENTY- FIVE TO THIRTY FEET.

Practical value: The collision case in the line — where physical evidence of movement exists, operation is not seriously contestable however the defendant explains the seating.

Birchfield v. North Dakota 579 U.S. 438, U.S., 2016

TWO HOLDINGS, AND THE SECOND IS THE ONE PEOPLE FORGET. First: "Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that A BREATH TEST, BUT NOT A BLOOD TEST, MAY BE ADMINISTERED AS A SEARCH INCIDENT TO A LAWFUL ARREST for drunk driving." Second: "MOTORISTS CANNOT BE DEEMED TO HAVE CONSENTED to submit to A BLOOD TEST ON PAIN OF COMMITTING A CRIMINAL OFFENSE."

Practical value: The second holding is the one that touches Virginia practice directly, because our implied-consent scheme is enforced by a refusal charge. Implied consent will carry a BREATH test; it will not by itself carry a BLOOD draw. Get a warrant.

Missouri v. McNeely 569 U.S. 141, U.S., 2013

The natural metabolization of alcohol in the bloodstream does NOT present A PER SE EXIGENCY justifying warrantless nonconsensual blood testing "in all drunk-driving cases". Dissipation "MAY SUPPORT AN EXIGENCY FINDING IN A SPECIFIC CASE, as it did in Schmerber, BUT IT DOES NOT DO SO CATEGORICALLY" — the question is the TOTALITY OF THE CIRCUMSTANCES, case by case.

Practical value: What this means at the suppression hearing is that "the alcohol was disappearing" is not an argument on its own. Put on the specific delay: how long a warrant would actually have taken that night, in that jurisdiction, with that magistrate.

Mitchell v. Wisconsin 588 U.S. 840, U.S. (plurality), 2019

⚠️ A PLURALITY. Justice Alito "announced the judgment of the Court and delivered an opinion" joined by only THREE other Justices; Justice Thomas concurred IN THE JUDGMENT ONLY, on different reasoning. The plurality rule: where probable cause exists and "the driver's unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may ALMOST ALWAYS order a warrantless blood test." And the judgment of the Supreme Court of Wisconsin was "VACATED, AND THE CASE IS REMANDED" — because Mitchell "did not have a chance to attempt to make that showing", the showing being that his was the unusual case where no exigency existed.

Practical value: ⚠️ THE SHEET USED TO STATE THIS AS "the exigent-circumstances doctrine generally permits a warrantless blood draw", which overstates it three ways: it is not a majority, "almost always" carries an express defence rebuttal, and THE COURT DID NOT UPHOLD THE DRAW — it vacated and remanded. Treat unconsciousness as a strong argument for exigency, not as a rule, and expect the defence to demand the Mitchell showing.

Georgia v. Randolph 547 U.S. 103, U.S., 2006

"[A] PHYSICALLY PRESENT co-occupant's stated refusal to permit entry PREVAILS, rendering the warrantless search UNREASONABLE AND INVALID AS TO HIM."

Practical value: ⚠️ READ THE CAPTION BEFORE CITING IT HERE. Randolph is a DWELLING case — a shared house — and the holding is framed around co-occupants of a residence. Carrying it to a vehicle search is an EXTENSION, not a holding, and should be argued as such rather than cited as settled. Note also the two express limits: the objector must be PHYSICALLY PRESENT, and the invalidity runs only AS TO HIM.

Melendez-Diaz v. Massachusetts 557 U.S. 305, 310, U.S., 2009

Analyst certificates "ARE QUITE PLAINLY AFFIDAVITS" and as such "FALL WITHIN THE CORE CLASS OF TESTIMONIAL STATEMENTS" governed by the Confrontation Clause — so the analyst must testify if the defendant properly demands it.

Practical value: In Virginia the mechanism is § 19.2-187.1, and the deadline is the whole case: calendar the demand window and secure the analyst early. A certificate admitted over a timely demand is a Confrontation Clause error, not a technicality.

⚠️ THIS SHEET'S CASE LAW WAS REBUILT ON 2026-08-24 after an audit found fabricated holdings in the Key Cases table. Three entries have been removed and four citation placeholders with them. See the revision notes for what was removed and why.