DUI Appeal of the Day (DAD) - "You Are Under Arrest" is not an 'arrest' at Common Law

In Young v. Commonwealth of Virginia, --- S.E.2d ----, 2011 WL 690655 (Va.App.) the defendant was arrested in Virginia. Virginia has a statute that requires, inter alia, that the defendant must be 'arrested' prior to submitting to a blood or breath test. Further, the arrest must occur within 3 hours of the offense for the implied-consent provisions to be applicable. On October 24, 2008, at approximately 7:00 p.m., Young ran a stop sign and crashed into an SUV.FN1 Young's car landed in a ditch with the driver's side door suspended in the air. Emergency personnel extricated him from the passenger side of the vehicle and slid him onto a backboard. Young was bleeding from his head and, according to emergency personnel, had a “very strong” odor of beer emanating from his person. His speech was slurred, and he could not tell them his name. Young became combative and emergency workers “had to tie his arms down” and strap him to the backboard.

At approximately 7:40 p.m., Virginia State Trooper G.F. Finch arrived at the scene and saw Young “fighting the medical personnel.” When he approached, Finch noticed Young had glassy eyes, slurred speech, and a “strong odor of alcoholic beverage on his breath.” When questioned by Trooper Finch, Young admitted he had been drinking prior to driving the vehicle and that the accident occurred at approximately 7:00 p.m. Trooper Finch observed in Young's vehicle two bottles of brandy and a cooler containing two cans of beer, one of which was open.

Trooper Finch followed the ambulance transporting Young to Mary Washington Hospital. They arrived at approximately 9:20 p.m., and Young was promptly admitted. While Young was lying in the hospital bed hooked to IVs, Finch told him he was under arrest and advised him of his Miranda rights and the implied consent law. Finch testified Young was not free to leave at that point. Young verbally consented to have his blood drawn. After Finch took possession of vials of Young's blood, he released Young from custody on a Virginia Uniform Summons pursuant to Code § 19.2-73. At the time of the offense, Code § 19.2-73 provided, in pertinent part, “If any person under suspicion for driving while intoxicated has been taken to a medical facility for treatment or evaluation of his medical condition, the arresting officer at the medical facility may issue ... a summons for a violation of Code § 18.2-266.”

The defendant claims that he was not 'arrested' within the terms of the law because he was not taken into physical custody. he cites to valid caselaw that holds that the mere words of an officer, telling a defendant "You are under arrest" is not sufficient to constitute an arrest:

Under common law, the “mere words of an officer stating to a suspect that he is ‘under arrest’ are not sufficient to constitute an arrest.” Bristol v. Commonwealth, 272 Va. 568, 573, 636 S.E.2d 460, 463 (2006) (citing California v. Hodari D., 499 U.S. 621, 627, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)).FN3 Quoting from Professor Perkins's seminal work on the subject, Hodari D. held the common law also requires the officer to have some physical contact with the arrestee (even a slight “touching” suffices) or, absent such contact, the arrestee must submit to the officer's assertion of authority. Hodari D., 499 U.S. at 626-27 (citing Rollin M. Perkins, The Law of Arrest, 25 Iowa L.Rev. 201, 206 (1940)); see also Hall v. Commonwealth, 280 Va. 566, 571, 701 S.E.2d 68, 71 (2010), aff'g, 55 Va.App. 451, 686 S.E.2d 554 (2009) (applying these common law principles, holding an individual was in custody for purposes of the escape statute, Code § 18.2-478, when the officer “spoke words of arrest and actually touched Hall for the stated purpose of arrest”).

Ultimately, the Virginia court held that the issuance of the summons, coupled with the words of the arrest, were sufficient earmarks to constitute an arrest. Additionally, the court used the intent of the statute, and under the doctrine of pari materia, looked at other statues dealing with similar actions and found that the intent was to allow catch-and-release summonses as 'arrests' for purposes of the Virginia laws.

The dissent also made valid points:

It is important to note that Trooper Finch issued the summons after the blood sample was taken, and not prior to it.

Because the Virginia Court found that an arrest had occurred prior to the defendant's submission to a blood draw, the Court affirmed the conviction and the admission of the result.

EDITORS NOTE: Although the Virginia Court disagreed with the defense, this argument has some validity. Further, the issue of an arrest also triggers the appropriate probable cause issue at the time of arrest - not afterwards.

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