Published in 2005
This report addresses how the Code of Virginia can be changed to improve Virginia's rate of testing for blood alcohol concentration (BAC) among drivers involved in crashes where there is a fatality. Currently, the implied consent statute in the Code mandates that a BAC test be conducted only after an arrest has been made. A review of U.S. Supreme Court cases and state law demonstrates that there are three options for modifying the implied consent statute. The first option is to require BAC testing of all drivers involved in a crash where there is a fatality but allow the results to be admissible in court as evidence against the driver only if probable cause exists independent of the test results. However, because a challenge to such a statute would present a constitutional search and seizure issue of first impression in Virginia's courts, the outcome of such a challenge cannot be predicted with any degree of certainty. The second option is to require BAC testing of all drivers involved in a crash where there is a fatality and some level of suspicion that does not amount to probable cause that the driver was committing the offense of driving under the influence of alcohol. However, although such a law is more likely to be upheld, there is still some risk that it would be found unconstitutional. If the Virginia legislature is risk-averse and is unwilling to make a change that might be declared unconstitutional by the courts, the third option is to amend the Code to require BAC testing where there is probable cause to believe that the driver is under the influence and a person has been seriously or fatally injured. Although this approach would be constitutionally safer, it would not be as effective as the first and second options for increasing the rate of BAC testing.
Jason S. Beaton
Last updated: November 27, 2023