This summary will clear up the misconceptions of the general public as it relates to your 6th and 4th Amendment Right to an attorney and Breath/Blood Samples pursuant to the Implied Consent Laws of Virginia.
Implied Consent: Virginia Code 18.2-268.2
18.2-268.2. Implied consent to post-arrest testing to determine drug or alcohol content of blood. A. Any person, whether licensed by Virginia or not, who operates a motor vehicle upon a highway, as defined in ? 46.2-100, in the Commonwealth shall be deemed thereby, as a condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, if he is arrested for violation of ? 18.2-266, 18.2-266.1, or subsection B of ? 18.2-272 or of a similar ordinance within three hours of the alleged offense. B. Any person so arrested for a violation of clause (i) or (ii) of ? 18.2-266 or both, ? 18.2-266.1 or subsection B of ? 18.2-272 or of a similar ordinance shall submit to a breath test. If the breath test is unavailable or the person is physically unable to submit to the breath test, a blood test shall be given. The accused shall, prior to administration of the test, be advised by the person administering the test that he has the right to observe the process of analysis and to see the blood-alcohol reading on the equipment used to perform the breath test. If the equipment automatically produces a written printout of the breath test result, the printout, or a copy, shall be given to the accused. C. A person, after having been arrested for a violation of clause (iii), (iv), or (v) of ? 18.2-266 or ? 18.2-266.1 or subsection B of ? 18.2-272 or of a similar ordinance, may be required to submit to a blood test to determine the drug or both drug and alcohol content of his blood. When a person, after having been arrested for a violation of ? 18.2-266 (i) or (ii) or both, submits to a breath test in accordance with subsection B or refuses to take or is incapable of taking such a breath test, he may be required to submit to tests to determine the drug or both drug and alcohol content of his blood if the law-enforcement officer has reasonable cause to believe the person was driving under the influence of any drug or combination of drugs, or the combined influence of alcohol and drugs.
6th and 4th Amendment Rights
6th Amendment: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." 4th Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Cash v. Commonwealth, 251 Va. 46, 466 S.E.2d 736 (1996).
"A person's unwillingness to take the test without prior consultation with counsel does not constitute a reasonable basis for the refusal." Virginia Courts have time and time again held that a defendant's 6th Amendment rights are not violated by a prohibiting them from consulting with counsel prior to providing a breath/blood sample because the operation of a vehicle is a privilege not a right. Additionally, unless it a refusal 2nd or 3rd there are no criminal implications with a refusal.
Birchfield v. North Dakota (United States Supreme Court 2016)
Curently, the United States Supreme Court has heard arguments on the criminalization of a refusal violates a person's 4th Amendment rights. We will wait and see what the decision will hold...
Currently, you cannot refuse to take a breath or blood test under Virginia Code 18.2-268.2 because you want to speak with an attorney first
If after being arrested for DUI under 18.2-266 you refuse to provide a breath or blood sample because you want to speak to an attorney then your refusal will be deemed unreasonable.
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