When Has a Person Been Arrested Under the Implied Consent for a Blood Test Statute?
by Jack E. Call
Professor of Criminal Justice
Virginia Police Legal Bulletin, Vol. 3, No. 2, October 2008
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[Note: Unless indicated otherwise, materials in quotation marks are quotes from the opinion of the court deciding the case under discussion. Also, unless indicated otherwise, a case discussed below was decided by the United States Supreme Court. Descriptions below of the facts of a case often quote verbatim (or at least draw heavily) from the opinion’s description of the facts or from the summary of the case provided by one of the legal reporters, such as Lexis-Nexis or www.findlaw.com]
Bristol v. Commonwealth, 636 S.E.2d 460 (Virginia Supreme Court, 2006)
Facts: On July 4, 2003, Bristol and his friends
were drinking alcoholic beverages and playing pool at the Three Cheers Lounge.
When Bristol left the lounge around 1:45 a.m., he agreed to give Debra Fly a
ride on his motorcycle. Bristol drove his motorcycle around the lounge parking
lot with Fly seated behind him as a passenger. Bristol's vehicle reached speeds
estimated between 50 and 80 miles per hour. While still in the parking lot,
Bristol drove directly into a crowd of people without reducing his vehicle's
speed. His motorcycle struck April Mapp, who was standing on the curb, causing
her to be thrown into the air. As a result of the collision, Bristol fell off
When Officer Doyle responded to the scene about 1:56 a.m., Bristol and Mapp were both lying in the parking lot. Mapp had head and brain injuries and a broken leg. Bristol was conscious, but had abrasions and bruises on his face. According to a paramedic who responded to the scene, Bristol smelled of alcoholic beverages. At 2:50 a.m., Doyle went to the hospital to see Bristol, who was in a trauma unit waiting to be examined. Doyle observed that Bristol's speech was slurred and that he smelled strongly of alcoholic beverages. At 2:56 a.m., Doyle told Bristol he was under arrest and informed him of the implied consent provisions of Code § 18.2-268.2. Bristol indicated that he understood those provisions and, at 3:05 a.m., signed a form authorizing the hospital to draw a blood sample. Doyle did not take any measures at that time to restrain Bristol.
Shortly thereafter, hospital personnel moved Bristol from the trauma unit to the hospital's emergency room. Doyle accompanied Bristol to the emergency room and sat with him until a lab technician, Teresa Whitfield, arrived to draw Bristol's blood. However, Doyle took no measures to restrain Bristol or his movements. When Whitfield asked Bristol if he understood that she was drawing a blood sample at the request of the police, Bristol indicated that he understood. Whitfield drew the blood sample from Bristol. After taking possession of the vials containing Bristol's blood, Doyle returned to the police station to write a report of the parking lot incident. In that report, Doyle did not indicate that Bristol had been arrested.
Soon after Doyle left the hospital, Officer Eberts arrived and attempted to interview Bristol. However, Bristol was incoherent, his speech was slurred, and he was in pain from the accident. Eberts left the hospital without taking any further action regarding Bristol. When Bristol was released from the hospital later that day, he was not taken into police custody or brought before a magistrate.
Two days later, Eberts telephoned Bristol and asked Bristol to come to the police station to be interviewed. Bristol went to the police station and, after Eberts conducted an interview there, Bristol left without any further action by the police. About a month later, Bristol telephoned the police to inquire about Mapp's condition. On none of these occasions did the police tell Bristol that he was under arrest or indicate that he would be charged with a criminal offense.
In August 2003, the Division of Forensic Science completed a certificate of analysis after performing tests on the blood sample drawn from Bristol at the hospital after the accident. The certificate of analysis indicated that Bristol's blood alcohol content at the time the sample was taken was 0.11 by weight by volume.
Issue: Under Va. Code § 18.2-268.2(A), a person who operates a motor vehicle on a highway in Virginia is deemed to consent to have a sample of his blood or breath taken for chemical analysis if he is arrested for a violation of Code § 18.2-266 or certain other related statutes within three hours of the alleged offense. Had Bristol been arrested at the hospital when his blood sample was drawn?
Answer: No (5-2, Justice Keenan for the court).
Disclaimer: The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.
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