COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judges Ortiz and Causey
PUBLISHED
Argued at Fairfax, Virginia
JASON PARK
OPINION BY
v. Record No. 0592-21-4 CHIEF JUDGE MARLA GRAFF DECKER
MAY 3, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Michael F. Devine, Judge1
Alan J. Cilman for appellant.
Lindsay M. Brooker, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
Jason Park appeals his conviction for refusal of a breath test, second offense. He argues
that the trial court erred by denying his motion to suppress the evidence, challenges the
information he received about the consequences of refusing a breath test, and contends that the
evidence was insufficient to support his conviction. For the following reasons, we affirm.
I. BACKGROUND2
This appeal arises from an encounter that the appellant had with a police officer on
November 14, 2019. That day, Officer Aaron Ciarrocchi of the Fairfax County Police
Department stopped at the scene of a single-vehicle accident. The car had struck a tree and
several bushes but was unoccupied when the officer arrived. The hood was cold, but the engine
1
Judge David A. Oblon presided over the pretrial motion to suppress. Judge Michael F.
Devine presided over the bench trial and sentencing.
2
Under the applicable standard of review, this Court views the evidence in the light most
favorable to the Commonwealth, as the prevailing party below. See, e.g., Hill v. Commonwealth,
297 Va. 804, 808 (2019); Otey v. Commonwealth, 71 Va. App. 792, 795 (2020).
was warm. Several “Bud Light Platinums” lay on the ground outside the driver’s side door of
the car.
Officer Ciarrocchi noticed a vehicle, marked as a rideshare service, pull into a nearby
parking lot. The appellant, appearing to be uninjured, emerged from behind some bushes. The
officer asked him if the crashed car belonged to him. The appellant acknowledged that it did.
He explained to the officer that the crash had occurred about five minutes earlier because he
turned “too soon” for “the exit.” The appellant also mistakenly believed that he had been
traveling on Fairfax County Parkway. Officer Ciarrocchi asked for his driver’s license, but the
appellant could not find it, although it was later discovered in his pocket.
During the conversation, Officer Ciarrocchi noticed that the appellant’s speech was
slurred, his eyes were bloodshot and glassy, and his breath smelled like alcohol. In response to
questioning, the appellant denied drinking any alcohol either before or after the accident. The
officer asked the appellant to complete field sobriety tests, but the appellant declined.
Officer Ciarrocchi arrested the appellant for driving under the influence of alcohol (DUI).
He then took the appellant to a detention center and asked him to provide a breath sample, but he
declined. The officer read him a form notifying him of the consequences of refusal under
Virginia’s implied consent statute, and the appellant again refused. Officer Ciarrocchi then
obtained a search warrant for a blood sample from him. The resulting analysis of the appellant’s
blood showed an alcohol content of 0.141%, with an error margin of 0.008%.
The appellant was charged with driving under the influence of alcohol, second offense,
and refusal to submit to a breath test, second offense. Before trial, he made a motion to suppress
the blood test results. He argued that his arrest was not supported by probable cause and was
illegal because he was not offered a preliminary breath test at the scene in accordance with Code
§ 18.2-267. The appellant also challenged the contents of the “Information About Consequences
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of Refusal” form, arguing that it did not notify him that in the event of refusal, police could still
obtain a blood sample.
The trial court denied the motion. It concluded that probable cause supported the arrest.
The court also opined that a preliminary breath test is a “field sobriety test,” which the appellant
refused, and that regardless “there is no suppression remedy for failure to offer a preliminary
breath test.” Last, the trial court held that a law enforcement officer is not required to
affirmatively inform a driver that another form of test may be given if he or she refuses a breath
test under the implied consent law.
At the ensuing bench trial, the appellant made a motion to strike the evidence of the DUI
charge, arguing that the Commonwealth did not present sufficient evidence to exclude the
hypothesis of innocence that he drank alcohol after the accident occurred. Agreeing that factual
scenario was “plausible,” the court granted the motion. The appellant then argued that the
implied consent statute did not apply to him because the Commonwealth did not prove that he
was driving and that his refusal to submit to the breath test was reasonable. The trial court
rejected these arguments and convicted the appellant of refusing to take a breath test, second
offense. The appellant was sentenced to sixty days in jail and a fine of $750, with all time and
$400 suspended, along with a three-year suspension of his driver’s license.
II. ANALYSIS
The appellant challenges the trial court’s denial of his motion to suppress, the adequacy
of the document informing him about the consequences of refusing a breath test, and the
sufficiency of the evidence. We consider each of these challenges in turn.
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A. Motion to Suppress
The appellant contends that the trial court erred by denying his motion to suppress. He
argues that his arrest was not supported by probable cause and he was not offered a preliminary
breath test in accordance with Code § 18.2-267.
1. Probable Cause
The appellant argues that the officer did not have probable cause to arrest him. He
suggests that “the happening of an accident” alone did not provide probable cause for arrest. In
addition, he contends that the beer containers on the ground outside the car tended to prove that
he drank the beer after he drove the car off of the road rather than before the accident.
“When challenging the denial of a motion to suppress evidence,” the appellant “bears the
burden of establishing that reversible error occurred.” Mason v. Commonwealth, 291 Va. 362,
367 (2016). An appellate court considers the evidence in the light most favorable to the party
who prevailed below and affords to that party, in this case the Commonwealth, the benefit of all
inferences fairly deducible from that evidence. Id. In ruling on the propriety of a trial court’s
denial of a motion to suppress, the reviewing court considers the evidence introduced at the
suppression hearing as well as the evidence at trial. See, e.g., Commonwealth v. White, 293 Va.
411, 414 & n.2 (2017).
In reviewing the evidence, this Court is bound by the trial court’s “findings of historical
fact unless ‘plainly wrong’ or without evidence to support them.” McGee v. Commonwealth, 25
Va. App. 193, 198 (1997) (en banc). Under this standard, the appellate court “give[s] due weight
to inferences drawn from those facts by resident judges and local law enforcement officers.”
White, 293 Va. at 414 (quoting Evans v. Commonwealth, 290 Va. 277, 280 (2015)). Finally, we
review de novo the ultimate question of whether law enforcement “had probable cause to make
an arrest.” Doscoli v. Commonwealth, 66 Va. App. 419, 424 (2016).
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The standard for probable cause is well established. Probable cause exists when the facts
and circumstances known to the officer “are sufficient to warrant a person of reasonable caution
to believe that an offense has been or is being committed.” Al-Karrien v. Commonwealth, 38
Va. App. 35, 47 (2002) (quoting Taylor v. Commonwealth, 222 Va. 816, 820 (1981)). This is an
objective standard that focuses on the totality of the facts and circumstances. Curley v.
Commonwealth, 295 Va. 616, 622 (2018). It involves a much lower evidentiary standard than
proof beyond a reasonable doubt. E.g., Maryland v. Pringle, 540 U.S. 366, 371 (2003); see
Doscoli, 66 Va. App. at 427.
Here, the evidence, viewed objectively and in the light most favorable to the
Commonwealth, amply establishes probable cause to arrest.3 Officer Ciarrocchi found the
appellant’s car wrecked on the side of the road. The appellant was hiding in some bushes nearby
while waiting for a rideshare service. When questioned, he admitted that he was involved in the
accident a short time earlier but denied drinking any alcohol. As they talked, Officer Ciarrocchi
noticed that the appellant’s speech was slurred, his eyes were bloodshot and glassy, and his
breath smelled like alcohol. The appellant did not know the street he was on and could not find
his driver’s license. Further, he refused to participate in field sobriety tests. See Jones v.
Commonwealth, 279 Va. 52, 59 (2010) (considering the driver’s “refusal to perform field
3
The fact that the appellant ultimately was not convicted of driving under the influence
does not affect our analysis. See Slayton v. Commonwealth, 41 Va. App. 101, 110 (2003)
(holding that the fact that the defendant was not charged with the offense giving the officer
probable cause to arrest was irrelevant to the legality of that arrest).
In addition, we note that the appellant argues that “Officer Ciarrocchi belie[ved] that the
beers were consumed after the accident.” However, “[p]robable cause . . . turns only on
‘“objective facts,” not the “subjective opinion” of a police officer.’” Id. at 109 (quoting Golden
v. Commonwealth, 30 Va. App. 618, 625 (1999)). Further, the appellant’s recitation of Officer
Ciarrocchi’s testimony fails to view the evidence in the light most favorable to the
Commonwealth. On cross-examination, the appellant’s counsel asked the officer whether he
“kn[ew] if [the appellant] was drinking before or after the accident or maybe both,” and Officer
Ciarrocchi responded that he did not. This record does not demonstrate that the officer believed
that the appellant drank alcohol after the accident.
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sobriety tests” along with other evidence in determining whether probable cause supported the
arrest for driving under the influence of alcohol). This record, viewed under the proper standard,
establishes probable cause to arrest the appellant for driving under the influence of alcohol. See
Code § 18.2-266.
2. Preliminary Breath Test
The appellant argues that his arrest was unlawful because the officer did not first offer
him a preliminary breath analysis in accordance with Code § 18.2-267.
Under Code § 18.2-267(A), any person suspected of driving under the influence of
alcohol “shall be entitled, if such equipment is available, to have his breath analyzed to
determine the probable alcoholic content of his blood.”4 The statute also directs an investigating
law enforcement officer to inform the suspect of his or her rights under the code section. Code
§ 18.2-267(F).
The issues that the appellant raises here are (1) whether the officer violated the statute
when he did not offer a preliminary breath test to the appellant, and (2) if so, whether the proper
remedy is suppression of the evidence. The Court reviews these legal questions de novo. See
Commonwealth v. Quarles, 283 Va. 214, 220 (2012).
Relating to the first question, the trial court held that after the appellant declined field
sobriety tests, the police officer did not have to specifically offer a preliminary breath test. We
begin our analysis by looking to the relevant section of the Code and its purpose. “The function
of the preliminary breath test under Code § 18.2-267 is to provide an independent means to
determine and resolve questions concerning probable cause . . . .” Jones v. Town of Marion, 28
Va. App. 791, 795 (1999), aff’d, 259 Va. 7 (2000). “By providing an immediate chemical test at
4
There is nothing in the record to suggest that the equipment to conduct a preliminary
breath test was not available, and that point is not in dispute.
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the scene, the suspected driver and the suspecting officer are provided an impartial arbitrator[,]
and whether the suspicion of driving under the influence is well grounded is made clear for the
benefit of both.” Wohlford v. Commonwealth, 3 Va. App. 467, 471 (1986). This statutory
purpose distinguishes between arguably subjective field sobriety tests and an objective
chemical-based test. Cf. Jones, 279 Va. at 58 (noting that a driver may reasonably refuse field
sobriety tests due to “lack [of] physical dexterity” or a “reluctan[ce] to submit to subjective
assessments by a police officer”). Therefore, we conclude that Code § 18.2-267 obliged Officer
Ciarrocchi to specifically tell the appellant that he was entitled to a preliminary breath test and
offer him one, even though the appellant declined “field sobriety tests.”
As for the second question, regarding whether the proper remedy is suppression of the
evidence, this Court has already answered it in the negative. Code § 18.2-267(F), requiring that
an investigating officer inform a suspect of the right to take a preliminary breath test, does not
provide that a violation is remedied by excluding the resulting evidence. Compare Code
§ 18.2-267(F) (containing no remedy), with Code § 19.2-56(B) (providing that “evidence
obtained from a search warrant executed in violation of this subsection shall not be admitted into
evidence”). “[U]nless the statute expressly provides for an evidentiary exclusion remedy,” a
violation of a statute does not require suppression of “the offending evidence.” Seaton v.
Commonwealth, 42 Va. App. 739, 757 n.7 (2004). This is not a new concept. “[H]istorically,
searches or seizures made contrary to provisions contained in Virginia statutes provide no right
of suppression unless the statute supplies that right.” Troncoso v. Commonwealth, 12 Va. App.
942, 944 (1991) (alteration in original) (quoting Commonwealth v. Brown, 8 Va. App. 41, 44
(1989) (Baker, J., concurring)). “[T]he fact that a[n act] violates a legislative mandate without
violating the Constitution does not provide for the exclusion [of the resulting evidence].” Taylor
v. Commonwealth, 28 Va. App. 638, 641 (1998). As this Court held in Wohlford, 3 Va. App. at
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471, “failure to comply” with Code § 18.2-267(F) “does not, standing alone, invalidate the arrest
or render the subsequently administered . . . test inadmissible.”5
Here, as in Wohlford, the circumstances supported the arrest and thus “the trial court
properly refused to suppress the fruits of that arrest.” See Jones, 28 Va. App. at 794-95 (holding
that the investigating officer’s failure to comply with Code § 18.2-267 did not invalidate the
arrest). For these reasons, the trial court did not err by denying the appellant’s motion to
suppress the evidence.
B. Refusal Form
The appellant argues that the form notifying him of the consequences of refusal “was
misleading and dishonest.” He contends that it should advise an accused that refusal will not
necessarily prevent law enforcement from obtaining a blood sample by other means as another
way to assess the accused’s level of intoxication. In considering this assignment of error, we
review the facts in the light most favorable to the Commonwealth but apply a de novo standard
of review to the trial court’s legal determination. See, e.g., Joyce v. Commonwealth, 72 Va. App.
9, 13-14 (2020).
The form that the officer read to the appellant, entitled “Information About Consequences
of Refusal,” provides the following in relevant part:
The Code of Virginia provides that if you . . . operate a
motor vehicle upon a highway in the Commonwealth and are
arrested for a drug or alcohol-related driving offense . . . , if
arrested within three hours of the alleged offense, you shall be
deemed to have agreed . . . to consent to have a sample of breath,
blood, or both breath and blood taken for chemical testing to
determine the alcohol and/or drug content of your blood. . . .
5
The legislature has amended Code § 18.2-267 many times since this Court’s opinion in
Wohlford without adding exclusionary language. See 2005 Va. Acts chs. 757, 840, 868, 881;
2004 Va. Acts ch. 1013; 1996 Va. Acts chs. 154, 952; 1994 Va. Acts chs. 359, 363; 1992 Va.
Acts ch. 830; 1990 Va. Acts ch. 825.
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If you refuse to permit the taking of a required sample of
breath, blood, or both breath and blood, and your refusal is
unreasonable, your refusal constitutes a separate offense.
See Sup. Ct. of Va., Form DC-233 (rev. Mar. 2017), http://www.vacourts.gov/forms/district/
dc233.pdf.
The document relates to a requirement in Code § 18.2-268.3. That statute proscribes an
unreasonable refusal to submit to such a test under the implied consent statute. Code
§ 18.2-268.3(A) (providing that a first violation constitutes a civil offense and a subsequent
violation within ten years constitutes a criminal offense). It also provides that a person refusing
to comply with the implied consent law must be informed of that law as well as the fact that such
refusal constitutes an offense. Code § 18.2-268.3(C); see also Code § 18.2-268.2 (implied
consent statute). This mandate by its plain language relates exclusively to the act of refusal and
the direct legal consequences, namely, an independent civil or criminal offense.
The appellant argues that the form misled him by not notifying him that if he refused to
submit to a breath test the police officer could compel a blood test.6 He suggests that by telling
him that a separate charge would result from his refusal, the clear implication was that such a
charge would be the only consequence. The appellant reasons that he was entitled to rely on the
form’s alleged implication that his refusal would ultimately be effective in preventing a chemical
analysis of his blood-alcohol level. He essentially believes that the Commonwealth had an
6
The appellant argues that if a suspect is informed that police will obtain a sample for
testing regardless of his refusal, “the chances of any accused refusing to provide a sample [are]
virtually zero.” If we were inclined to theorize about the hypothetical decisions of hypothetical
suspects, we might conclude that a defendant may have strategic reasons to refuse the test even if
ultimately being compelled to undergo a blood test is a foregone conclusion. See Bailey v.
Commonwealth, 215 Va. 130, 131 (1974) (noting that the defendant’s attorney had advised him
“not to take the test”); Davis v. Commonwealth, 8 Va. App. 291, 296 (1989) (“[B]lood alcohol
concentration, as measured by a chemical test, is a function of many factors including, . . . the
length of time between drinking and measurement.”).
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affirmative obligation to inform him that in the event of his refusal, he would be subject to a
separate charge and a blood test if Officer Ciarrocchi could obtain a search warrant for the test.
The appellant suggests that the officer misled him by reading the form. His factual
premise is flawed. The representation that he would be subject to a separate charge if he refused
a test, in violation of the implied consent statute, was a requirement of the refusal statute. By
reading the form, the officer met the obligation under the statute. The form did not constitute a
representation that Officer Ciarrocchi would not seek to obtain a blood sample through a search
warrant.
Further, the appellant’s legal argument fails. In support of this assignment of error, the
appellant cites only cases that stand for the proposition that due process allows a party to rely on
legal representations made by a government authority regarding non-prohibited conduct. See
United States v. Pa. Indus. Chem., 411 U.S. 655, 674 (1973); Cox v. Louisiana, 379 U.S. 559,
568-71 (1965); Raley v. Ohio, 360 U.S. 423, 425-26 (1959); Miller v. Commonwealth, 25
Va. App. 727, 735-37 (1997). The principle is “that the criminal statute under which the
defendant is being prosecuted cannot constitutionally be applied to the defendant without
violating due process of law, where government officials have misled the defendant into
believing that his conduct was not prohibited.” Miller, 25 Va. App. at 736 (quoting Jeffrey F.
Ghent, Annotation, Criminal Law: “Official Statement” Mistake of Law Defense, 89 A.L.R.4th
1026, 1031 (1991)).
To avail oneself of this due process “defense,” a defendant must prove three things.
Branch v. Commonwealth, 42 Va. App. 665, 671 (2004). First, he must establish “that he was
assured that the conduct giving rise to the conviction was lawful.” Id. Second, the defendant
must demonstrate “that the assurance was given by a ‘government official,’ i.e., ‘a public officer
or body charged by law with responsibility for defining permissible conduct with respect to the
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offense at issue.’” Id. (quoting Miller, 25 Va. App. at 739). Third, he must prove “that, based on
the totality of the circumstances, reliance upon the advice was reasonable and in good faith.” Id.
In this case, the appellant is not asking for protection for conduct that a government
authority assured him was legal. Instead, in accordance with Code § 18.2-268.3, Officer
Ciarrocchi specifically told him that refusing the breath test would constitute a separate civil or
criminal offense. The officer advised the appellant of precisely what he was required to tell him
regarding the implications of refusal to take the breath test. The due process principle relied on
by the appellant does not apply here, and we decline the invitation to expand it to the totally
different facts at issue. See id. We hold that the trial court appropriately concluded that the
information that the appellant received did not violate his right to due process.
C. Sufficiency of the Evidence
The appellant challenges the sufficiency of the evidence to support his conviction for
unreasonable refusal of a breath sample. When presented with such a challenge in a criminal
case, an appellate court presumes “[t]he judgment of the trial court [to be] . . . correct[,] and [it]
will not be disturbed unless it is plainly wrong or without evidence to support it.” Smith v.
Commonwealth, 296 Va. 450, 460 (2018) (quoting Commonwealth v. Perkins, 295 Va. 323, 327
(2018)). “If there is evidentiary support for the conviction, ‘the reviewing court is not permitted
to substitute its own judgment, even if its opinion might differ from the conclusions reached by
the finder of fact at the trial.’” Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018) (quoting
Banks v. Commonwealth, 67 Va. App. 273, 288 (2017)). This deference is also owed to the trial
court’s inferences drawn “from basic facts to ultimate facts.” See Davis v. Commonwealth, 65
Va. App. 485, 500 (2015) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In the end,
the appellate court asks only “whether any rational trier of fact could have found the essential
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elements of the crime beyond a reasonable doubt.” Commonwealth v. Cady, 300 Va. 325, 329
(2021) (quoting Sullivan v. Commonwealth, 280 Va. 672, 676 (2010)).
Under Code § 18.2-268.2(A), in relevant part, any person arrested for driving under the
influence and “who operates a motor vehicle upon a highway . . . in the Commonwealth” is
deemed to have consented to chemical testing to determine blood-alcohol level. In turn, Code
§ 18.2-268.3(A) provides that “[i]t is unlawful for a person who is arrested for” driving under the
influence “to unreasonably refuse to have samples of his breath taken for chemical tests to
determine the alcohol content of his blood as required by § 18.2-268.2.”
The appellant suggests two reasons why the evidence was insufficient. First, he argues
that the Commonwealth failed to prove that he operated the vehicle. Second, the appellant
contends that his refusal to submit to a breath test was reasonable.
1. Operation of the Vehicle
The appellant argues that the Commonwealth did not disprove his claim that he was not
the driver and therefore did not operate a motor vehicle on a highway as required under the
statutory scheme. He points to the possibility that another person was in the car, particularly
since the passenger airbags deployed. The appellant suggests that the only evidence supporting
the conclusion that he drove the vehicle was his uncorroborated “confession.”
The hypothesis that there was a second person in the car who was driving it was rejected
by the trier of fact. The evidence in the record that the passenger airbags deployed was Officer
Ciarrocchi’s testimony that “[a]ll the airbags had deployed.” The trial court noted that this
evidence did not establish that “there was a passenger airbag to go off.” The court also
commented on the lack of evidence related to the trigger mechanism for the airbags and the
possibility that the vehicle had only “one sensor for all the front seat air bags.” Ultimately, the
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trial court, as trier of fact, found that the appellant was the driver and expressly rejected the
appellant’s hypothesis of innocence to the contrary.
“The reasonable-hypothesis principle . . . is ‘simply another way of stating that the
Commonwealth has the burden of proof beyond a reasonable doubt.’” Commonwealth v.
Moseley, 293 Va. 455, 464 (2017) (quoting Commonwealth v. Hudson, 265 Va. 505, 513
(2003)). “The only requirement” in a circumstantial case is that the Commonwealth “put on
enough circumstantial evidence such that a reasonable [fact finder] could have rejected [the]
defendant’s [hypothesis] of innocence.” Davis, 65 Va. App. at 502. As long as “a rational
factfinder could reasonably reject [the appellant’s] theories in his defense and find that the
totality of the suspicious circumstances proved [his guilt] beyond a reasonable doubt,” the
appellate court must affirm the conviction. See Moseley, 293 Va. at 466.
In this case, the Commonwealth presented evidence that Officer Ciarrocchi found the
appellant alone near a single-car accident. The appellant summoned a rideshare service to take
him from the accident scene and waited behind bushes for his ride. When confronted by the
officer, who arrived shortly after the accident, the appellant admitted that he had been driving
and explained that he drove off the road when he turned too early for his exit. This evidence was
entirely sufficient to support the finding that the appellant was the driver. See Holloway v.
Commonwealth, 57 Va. App. 658, 666 (2011) (en banc) (stating that “[w]hether an alternative
hypothesis of innocence is reasonable is a question of fact” subject to reversal only if plainly
wrong (quoting Emerson v. Commonwealth, 43 Va. App. 263, 277 (2004))).
The appellant is correct that an uncorroborated confession by itself is not sufficient
evidence to support a conviction. “The corpus delicti rule requires the Commonwealth to
introduce evidence independent of an extrajudicial confession to prove that the confessed crime
actually occurred—that is, to prove the corpus delicti.” Allen v. Commonwealth, 287 Va. 68, 72
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(2014). Assuming without deciding that the appellant’s statement that he was driving the car
was a confession, we consider whether the Commonwealth presented corroborating evidence.
See generally Terlecki v. Commonwealth, 65 Va. App. 13, 26 (2015) (“A confession is ‘a
statement admitting or acknowledging all facts necessary for conviction of the crimes’ charged,
while an admission admits of ‘facts tending to prove guilt but falling short of an admission to all
essential elements of the crime.’” (quoting Claxton v. City of Lynchburg, 15 Va. App. 152, 155
(1992))). Only “slight corroboration of [a] confession is required to establish corpus delicti
beyond a reasonable doubt.” Allen, 287 Va. at 74 (quoting Cherrix v. Commonwealth, 257 Va.
292, 305 (1999)). Here, the appellant’s statement that he was driving was corroborated by his
sole presence at the scene and the crashed vehicle itself. The appellant appeared to be
intoxicated and smelled like alcohol, and beer containers were found outside the driver’s door.
Further, his statement that the accident had happened recently was corroborated by the fact that
the car’s engine was warm when the officer felt it.
Based on this record, the evidence was sufficient to find that the appellant was the driver.
2. Unreasonable Refusal
The appellant contends that his refusal to take a breath test was reasonable and thus not
prohibited conduct under the statute. He focuses on the possibility that he drank the beer after
the accident. The appellant theorizes that drinking alcohol after driving would render any breath
test worthless and that therefore his refusal to submit to the test was reasonable.
To the extent that statutory interpretation is necessary to resolve this particular
sufficiency issue, this Court reviews that aspect de novo. See D’Amico v. Commonwealth, 287
Va. 284, 288 (2014). Criminal statutes must be “strictly construed against the Commonwealth.”
Green v. Commonwealth, 72 Va. App. 193, 202 (2020). Even so, the court interpreting the
statute must determine legislative intent “from the plain meaning of the language used” in the
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statute. Hillman v. Commonwealth, 68 Va. App. 585, 592-93 (2018) (quoting Meeks v.
Commonwealth, 274 Va. 798, 802 (2007)).
Under the plain language of Code § 18.2-268.3, to violate the statute, the refusal to
submit to the breath or blood test must be unreasonable. Brothers v. Commonwealth, 50
Va. App. 468, 473-74 (2007). If the refusal is reasonable, the person has not violated the statute.
“[T]he circumstances in which one may reasonably refuse the test and abrogate the consent
implied by law are narrow, such as ‘where a person’s health would be endangered by the
withdrawal.’” Id. at 475 (quoting Deaner v. Commonwealth, 210 Va. 285, 293 (1969)); see also
Cash v. Commonwealth, 251 Va. 46, 50 (1996) (recognizing a health risk as an acceptable reason
to refuse a test).
Implied consent “is not a qualified consent and it is not a conditional consent, and
therefore there can be no qualified refusal or conditional refusal to take the test.” Deaner, 210
Va. at 292. In Virginia, case law makes clear that a refusal is unreasonable if based on an
unwillingness to take the test without legal counsel, D’Amico, 287 Va. at 290, a fear that police
will tamper with the test results, Cash, 251 Va. at 52, advice from counsel against taking such a
test, Bailey v. Commonwealth, 215 Va. 130, 131 (1974), or a belief that the test is unnecessary,
Quinn v. Commonwealth, 9 Va. App. 321, 323 (1990).
The holdings in these cases align with the purpose of the implied consent statute: to
determine the driver’s “state of intoxication or sobriety.” Quinn, 9 Va. App. at 324. If a suspect
is intoxicated because he drank alcohol after driving, that is a defense to a DUI. It is not,
however, sufficient reason to lawfully refuse to submit to a test under the implied consent statute.
See generally Steinbrenner v. Comm’r of Pub. Safety, 413 N.W.2d 557, 559 (Minn. Ct. App.
1987) (“[P]ost-driving consumption of alcohol may be raised by the driver as an affirmative
defense if the driver takes the test, [but] it may not be raised as a basis for a reasonable refusal.”
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(citation omitted)), cited with approval in Quinn, 9 Va. App. at 324. To hold that the availability
of a factual defense to the charge of drunk driving constitutes a reasonable basis for the refusal
under Code § 18.2-268.3 would “frustrate the intent and object of the law.” See Brothers, 50
Va. App. at 475 (quoting Deaner, 210 Va. at 293).
The appellant’s refusal based on his belief that it would not establish that he drank
alcohol before the wreck pertained to a factual defense to the charge of driving under the
influence of alcohol. It was not a reasonable basis for refusal. Accordingly, we hold that the
evidence was sufficient to support the appellant’s conviction.
III. CONCLUSION
The trial court did not err in denying the appellant’s motion to suppress. Further, the
appellant’s challenge to the implied consent form fails. Finally, the Commonwealth presented
sufficient evidence to prove that the appellant was the driver and that his refusal was
unreasonable. Consequently, we affirm the conviction for refusal of a breath test, second
offense.
Affirmed.
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