Deaner v. Com.

• Decision Date: 13 October 1969
• Citation: 170 S.E.2d 199,210 Va. 285
• Parties: James Warren DEANER v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 199

170 S.E.2d 199

210 Va. 285

James Warren DEANER v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

Oct. 13, 1969.

Leonard A. Paris, Richmond (James R. Scott, Jr., Richmond, on brief), for plaintiff in error.

James B. Wilkinson, Sp. Asst. Atty. Gen., for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON and HARRISON, JJ. HARRISON, Justice.

The question involved here is whether the defendant, James Warren Deaner, having been arrested and taken into custody for operating a motor vehicle while under the influence of alcohol, had a right to consult with his attorney prior to having a sample of his blood taken for chemical analysis.

Defendant was arrested in the City of Richmond at approximately 1:30 A.M. on January 13, 1968, and charged with operating his motor vehicle while under the influence of alcohol or some other self-administered intoxicant or drug. He was advised by the arresting officer that, having operated a motor vehicle upon a public highway in Virginia, he was deemed to have consented to have a sample of his blood taken for a chemical test to determine the alcoholic content thereof and that the unreasonable refusal to do so constituted grounds for the revocation of his privilege to operate a motor vehicle.

Defendant, while indicating a willingness to comply with the statute, told the arresting officer that he would first like to consult with his attorney. He was taken to the magistrate's office, and there again voiced his willingness to take the blood test provided he was allowed to consult with his attorney. Because of activity in that office, defendant was unable to contact his attorney until 4:40 A.M., which was after the two-hour statutory period during which the test could be administered had expired.

The committing magistrate certified that he advised defendant, who had been arrested and who had refused to permit the taking of a blood sample, that such refusal--if found to be unreasonable--constituted grounds for the revocation of his license to operate a motor vehicle upon the highways of Virginia, and that defendant refused and failed to execute a declaration of refusal. Deaner was charged with having failed and refused to permit a sample of his blood to be taken to determine the alcoholic content thereof.

The warrant issued shows that it was 'executed this, the 13th day of January, 1968, by arresting the within named party (the defendant), and by summoning the within named witnesses to appear in traffic court'.

At a hearing held February 23, 1968, the warrant shows defendant was found 'guilty--op. lic. revoked for 3 months and costs', and signed by Herman A. Cooper, Judge of the Traffic Court.

This order of the traffic court, suspending defendant's license, was appealed to the Hustings Court of the City of Richmond.

On April 23, 1968, the court below found defendant guilty of such refusal and suspended his license for a period of three months and assessed him with payment of the costs. It was to this action of the trial court that we granted defendant a writ of error.

Defendant argues that his right to counsel is one of the rights guaranteed an accused under Section Eight of the Constitution of Virginia, Watkins v. Commonwealth, 174 Va. 518, 6 S.E.2d 670 (1940), and by the Sixth Amendment to the United States Constitution, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

Deaner contends that the refusal to take the prescribed blood test does not result in an automatic suspension of the right to operate a motor vehicle in Virginia unless such refusal first be determined to be unreasonable. In essence, he maintains that his unwillingness to take such a test 'was conditioned only' upon the exercise of a right, which he says is a constitutional right, to consult with his attorney prior to doing so, and therefore was not unreasonable.

Defendant also points to an opinion of the Attorney General of Virginia, rendered June 27, 1968, which held that an individual who declines, upon the advice of counsel, to submit to the blood alcohol test prescribed in Virginia's Implied Consent Law, would have reasonable ground for refusing to submit to such test within the meaning of the statute.

We must first determine whether the proceeding, for revocation of the license of one who refuses to submit to a blood test after having been charged with operating a vehicle under the influence of alcohol, is a criminal proceeding, or a civil and administrative procedure.

We summarize the sections of Virginia's Implied Consent Law which are pertinent to this appeal. Code § 18.1--55.1(b) provides that any person who operates a motor vehicle upon a public highway in this state shall be deemed thereby, as a condition to such operation, to have consented to have a sample of his blood taken for a chemical test to determine the alcoholic content thereof, if he is arrested for a violation of § 18.1--54 (driving drunk statute) or of a similar ordinance of any county, city or town within two hours of the alleged offense.

Paragraph (c) provides that a person so arrested shall be advised by the arresting officer of the provisions of paragraph (b) and the result of the unreasonable refusal to take such test. This section also provides that, where such person refuses to permit such test, he shall be taken before a committing magistrate. If he again refuses the test, after having been further advised of the provisions of paragraph (b) and the result of a refusal, and declares his refusal in writing, or fails to declare in writing, then no blood sample shall be taken.

Paragraph (i) provides that if one refuses the test, the refusal is not evidence and shall not be commented upon in the drunk driving case.

Paragraph (j) provides the procedure to be followed by the committing justice where there is a refusal or failure to take the blood test, and the form which must be executed by the justice. It further directs that the justice forthwith issue a warrant charging the person refusing to take the test with a violation of this section. It directs that the warrant shall be executed in the same manner as criminal warrants.

Paragraph (l) prescribes the procedure the court is to follow upon receiving from the committing justice the declaration of refusal or certificate referred to in paragraph (k), together with the warrant. It directs that the court fix a date for the trial of the warrant subsequent to the defendant's criminal trial for driving under the influence of intoxicants.

Paragraph (m) makes the declaration of refusal or certificate returned by the committing justice prima facie evidence that the defendant refused the test, but permits the introduction of evidence by the defendant of the basis of his refusal, and directs the court to determine the reasonableness of such refusal.

Under paragraph (n), if the court finds the defendant guilty, it shall suspend the defendant's license for a period of ninety days for a first offense.

Paragraphs (o) and (p) provide for an appeal from a conviction and suspension of license and prescribe the procedure for appeal and trial to be the same as is provided by law for misdemeanors.

An analysis of the above sections shows none of the indicia of a criminal prosecution. The criminal offense which gives rise to the procedure under the Implied Consent Law is driving under the influence of alcohol or drugs. The same motor vehicle operation may give rise to two separate and distinct proceedings--one a civil and administrative procedure and the other a criminal action. Each action proceeds independently of the other and the outcome of one is of no consequence to the other.

The implied consent of one who operates a vehicle on the public highways of Virginia to take a blood test, in event he be charged with drunk driving, is not a part of the penalty or punishment inflicted for drunk driving. It is a measure flowing from the police power of the state designed to protect other users of state highways.

It has been repeatedly held in Virginia and elsewhere that the operation of a motor vehicle on a public highway is not a natural right but a conditional privilege, which may be suspended or revoked under the police power. The operator's license is not a contract or a property right in a constitutional sense. It is a privilege granted to those who are qualified, and it is withheld from those who are not. See Pritchard v. Battle, 178 Va. 455, 17 S.E.2d 393 (1941), and authorities therein cited.

Under the statutes of Virginia, an arrest for drunk driving results in the following actions by law enforcement officers. A criminal warrant is issued charging the accused person with the commission of a criminal offense--drunk driving. The accused is arrested, is taken into custody and is restrained until he gives bail for his appearance and trial. The trial is conducted as any other criminal trial with the usual safeguards and right of appeal. The accused can be fined and imprisoned--either or both. The burden of establishing his guilt is placed on the Commonwealth. The other is the action provided in the paragraphs quoted from the Implied Consent Law. Should an accused refuse to take the blood test, after two explanations of the consequence of such refusal, a 'warrant' is issued charging the person with such refusal. The warrant referred to by the statute is obviously not a criminal warrant. It is in the nature of 'a writ or precept from a competent authority in pursuance of law, directing the doing of an act, and addressed to the officer or person competent to do the act. * * *' Black's Law Dictionary, p. 1756 (4th ed. 1951).

True, the statute directs that the warrant 'be executed' in the same manner as a criminal warrant. This is to prescribe an appropriate method of serving notice on the accused.

It will be noted that the declaration of refusal or certificate of the committing magistrate is prima facie evidence...