2.3 Procedure after Arrest

2.3 PROCEDURE AFTER ARREST

2.301 Misdemeanor Arrest Statute.

A. In Officer's Presence.

With some exceptions, a police officer cannot make a misdemeanor arrest without a warrant if the misdemeanor was not committed in the officer's presence. Traffic cases generally do not raise this issue because usually the officer has observed the conduct for which the charges were brought. No suppression remedy is available in many cases where a police officer makes an unlawful arrest under section 19.2-81 of the Virginia Code because that section does not expressly provide for suppression of evidence, so it is important to allege both the statutory violation and the Fourth Amendment violation that triggers exclusion of the evidence. ³⁴⁵ It is noteworthy, however, that amendments to the Virginia Code in 2020 intended to reduced pretextual traffic stops specifically provide that the police cannot stop vehicles for certain moving violations and exclude from evidence at trial any evidence obtained during such traffic stops even if the accused consented to the search. ³⁴⁶ For example, police may no longer stop vehicles for:

· Unilluminated tail lights or license plate; ³⁴⁷

· Certain headlight violations; ³⁴⁸

· Having a defective brake light or high mount stop light as long as there is one working brake light; ³⁴⁹

· Defective equipment violations; ³⁵⁰

· Objects dangling from a rearview mirror; ³⁵¹

· Unlawfully tinted windows; ³⁵²

· Smoking with a minor in the vehicle; ³⁵³

· Failure to wear a safety belt; ³⁵⁴ and

· Expired inspection stickers that are less than four months out of date. ³⁵⁵

B. Statutory Exceptions.

There are five exceptions created by statute that permit a warrantless arrest for a misdemeanor traffic offense not committed in the officer's presence.

First, section 19.2-81 of the Virginia Code allows an officer to arrest a driver, either at the scene of a motor vehicle accident or at a medical facility to which the driver has been transported, based on the officer's personal investigation of the accident, including eyewitness statements made at the scene.

The second exception allows an officer to make a warrantless arrest for driving while intoxicated at any location where the driver can be found up to three hours after the offense has occurred, provided that the officer has probable cause to suspect that the driver was intoxicated.

The third exception allows an officer to make a warrantless arrest for a speeding violation ³⁵⁶ or a traffic signal violation ³⁵⁷ if the officer has received a radio communication from another law enforcement officer who has just witnessed the violation and has a positive identification of the vehicle, such as a license plate number. ³⁵⁸

The fourth exception allows an officer to make a warrantless arrest for misdemeanor offenses of DUI, boating while intoxicated, or a violation of an order prohibiting operation of a watercraft, within three hours of the alleged incident even if the offense did not occur in the officer's presence. ³⁵⁹

The fifth exception allows an officer investigating a DUI to issue a summons at a medical facility if the accused is being treated and therefore cannot be arrested and taken before a magistrate based on the implied consent statute. ³⁶⁰ Such a summons is considered an arrest for the purposes of the DUI and implied consent provisions of the Virginia Code. ³⁶¹ This exception is a response to the rulings of Virginia's appellate courts in a line of cases, discussed below, that turned on whether a defendant was arrested in compliance with the implied consent statute when the defendant was released on a summons.

In Bristol v. Commonwealth, ³⁶² a police officer investigating a DUI accident case found the accused at the hospital and informed him that he was under arrest and read the implied consent law to him. Blood was drawn from Bristol with the understanding that it was for police use. But the officer never took measures to restrain Bristol, nor did he physically touch him. The officer left the hospital without issuing a summons or serving a warrant upon Bristol. A month passed before Bristol was formally charged with DUI. The Supreme Court of Virginia held that despite the officer's assertion of arrest, the police officer's actions did not constitute an arrest under the common law because (i) the officer did not physically restrain the accused, and (ii) the defendant's mere consent to the blood test was not a sufficient submission to the officer's show of authority to constitute an arrest. Because Virginia's implied consent law is triggered by an arrest within three hours of the offense, the blood alcohol content (BAC) result was inadmissible at trial.

The Court of Appeals has arguably not applied Bristol consistently. In Sprouse v. Commonwealth, ³⁶³ the Court of Appeals held that the results of a blood alcohol test had to be excluded at trial because the defendant was not arrested before the blood draw. When the police arrived at the accident scene, the defendant was already in the back of the ambulance. After conducting a preliminary investigation, the officer informed Sprouse that he would be taken to the hospital and charged with DUI. Sprouse was then transported to the hospital, where a nurse obtained a blood sample for the police. After the sample was taken, the officer issued a summons to Sprouse for DUI, which Sprouse signed. Unlike the officer in Bristol, the officer never indicated to Sprouse that he was under arrest. The Court of Appeals held that it need not reach the Commonwealth's claim that Sprouse was arrested when he signed the summons because the record established that Sprouse signed the summons after he was required to submit to the blood test, and the purported arrest therefore occurred after the blood test. Because the implied consent law required the arrest to come first under Bristol, the evidence was inadmissible.

In Young v. Commonwealth, ³⁶⁴ decided two years after Sprouse, the Court of Appeals held that a blood test was admissible under facts almost indistinguishable from those in Sprouse and Bristol. Young's arrest occurred in 2008 and was therefore not affected by the 2010 amendment to section 19.2-73(B), which specifies that the issuance of a summons is an arrest for purposes of the implied consent law. In Young, as in Bristol, the officer followed the ambulance to the hospital and informed the defendant that he was under arrest. As in Bristol, the officer advised Young of his Miranda rights and the implied consent law. And, like Bristol, Young consented to have his blood drawn. Finally, just as in Sprouse, the officer issued a summons to the defendant after the blood was drawn, then left him at the hospital. The majority in Young relied on a synthesis of the common law of arrest and the statutes authorizing release on a summons to hold that Young must have been arrested before the blood was drawn, thus making the blood test result admissible under the implied consent statute.

Critics—most notably the dissent by Judge Humphreys (who wrote the majority opinion in Sprouse)—have accused the Young majority of not answering the big question in the case: when or how was Young arrested? Young was not touched by the officers, and he did nothing more than Bristol did to submit to the authority of the officers before the blood was drawn. The officers in Bristol and Young performed exactly the same acts up to the point when they left the defendant at the hospital. Factually, the only difference is that in Young the summons was issued after the blood was taken, and in Bristol a summons was never issued. But the act of signing a summons after the blood draw does not affect the analysis of whether an arrest occurred before the blood draw. This makes the alleged arrest in Young factually indistinguishable from the alleged arrest in Bristol. Judge Humphreys' dissent points out that the majority relies on the circular logic that Young must have been arrested simply because he was released from arrest by the issuance of a summons. ³⁶⁵

The 2010 amendments to section 19.2-73(B) of the Virginia Code essentially negate this problem in many cases, because the statute now considers the issuance of a summons to be an "arrest" for the purposes of the implied consent law. Thus, the analysis of the common law of arrest undertaken in Sprouse and Young is no longer necessary as long as a summons is issued before the blood is drawn. However, if the summons is issued after the blood is drawn, or if no summons is issued and the defendant is allegedly arrested by the officer at the hospital, then the Bristol, Sprouse, and Young cases control the analysis because section 19.2-73(B)'s "summons equals arrest" provision would not apply.

Young does not expressly overrule Sprouse, nor does it purport to supersede Bristol based on statutory amendments or other changes to the law. It is therefore difficult to see how a trial court is to apply Young and ignore Bristol should the same factual scenario arise again. The simplest answer seems to be to focus on the one factual distinction between the cases: whether and when a summons was issued. But that analysis is unsatisfactory because it would require the trial court to then ignore Sprouse instead. This problem is likely to confound Virginia's trial courts until the Supreme Court of Virginia has another opportunity to take up the issue.

C. Procedure for Arrest Without Warrant.

Section 19.2-82 addresses the procedure for a warrantless arrest. The accused must be brought "forthwith" before a magistrate. Nonetheless, there is no Fourth Amendment right to a face-to-face appearance before a magistrate prior to arrest. ³⁶⁶

In misdemeanor cases, a police officer may issue a summons instead of a warrant if the officer believes that the person will appear at trial. ³⁶⁷ Where intoxication of the driver is not an issue, a summons is generally used. An officer issues a summons by personally delivering a copy to the accused...