When a suspected drunk driver is taken to the hospital, what steps does the officer have to follow to legally get a blood sample under Virginia's implied consent law?

Plain-English summary

The State Police Superintendent asked the AG to lay out the exact procedural sequence officers must follow to obtain a blood sample under Virginia's implied consent law when the suspect has been transported to a hospital for medical treatment. The question came after Bristol v. Commonwealth (Va. 2006), which reversed a DUI conviction because the officer had not actually arrested the defendant before the blood draw (the summons was issued days later).

The implied consent statute (§ 18.2-268.2(A)) says any person who operates a motor vehicle on a Virginia highway "shall be deemed thereby ... to have consented to have samples of his blood ... taken" if "he is arrested for [DUI] ... within three hours of the alleged offense." The arrest is the trigger; without a valid arrest preceding the draw, the implied consent does not apply and the blood test results are inadmissible.

The common-law arrest problem. An arrest at common law requires "either physical force ... or, where that is absent, submission to the assertion of authority" (California v. Hodari D.; Hall v. Commonwealth). Just telling the suspect "you are under arrest" without doing either of those things does not constitute an arrest (Bristol). In a hospital scenario, neither approach is practical: the officer cannot use physical force on someone being medically treated, and the patient may be unable to submit consciously.

The § 19.2-73(B) workaround. The General Assembly recognized this exact difficulty and provided in § 19.2-73(B): "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 officer at the medical facility may issue, on the premises of the medical facility, a summons for a violation of [driving while intoxicated] and for refusal of tests ... without having to detain that person, provided that the officer has probable cause to place him under arrest. The issuance of such summons shall be deemed an arrest for purposes of Article 2 ([§§] 18.2-266 et seq.) of Chapter 7 of Title 18.2." Section 19.2-73(B) thus creates a statutory substitute: the summons itself counts as the arrest (Sprouse v. Commonwealth).

The required sequence. Putting the two statutes together:

1. The officer must have probable cause to believe the suspect committed DUI.
2. The officer issues a summons under § 19.2-73(B) on the hospital premises. This is the arrest.
3. The officer advises the suspect of the requirements of implied consent.
4. The blood test is administered. (Implied consent has been triggered by the deemed arrest in step 2.)
5. The officer remains with the suspect through the draw (to support the chain-of-custody and admissibility under § 18.2-268.7(C)).
6. The officer releases the suspect on the previously issued summons.
7. If the suspect objects to the blood test after step 3, the officer should charge refusal under § 18.2-268.3.

Why the order matters. Implied consent depends on the prior arrest. If the blood is drawn before the summons is issued, the suspect was not legally arrested at the time of the draw, the implied consent statute was not triggered, and the blood test result is inadmissible. That was the precise problem in Bristol. The 2014 opinion lays out the steps to avoid that result.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Virginia DUI statutory framework (§§ 18.2-266 et seq.; § 19.2-73) has been amended since 2014. The U.S. Supreme Court has decided two important DUI implied-consent cases since this opinion: Birchfield v. North Dakota, 579 U.S. 438 (2016) (holding that warrantless blood draws cannot be criminalized under implied-consent statutes but warrantless breath tests can), and Mitchell v. Wisconsin, 588 U.S. 840 (2019) (unconscious-driver exception). Virginia's refusal statute and implied consent framework have been amended in response. Anyone applying these procedures today should consult current law and any current State Police general orders or implied-consent training materials.

Common questions

What is implied consent?
A statutory rule that says anyone who drives on Virginia highways is deemed to have consented to alcohol/drug testing if arrested for DUI within three hours. The statutory consent is implied by the act of driving; the driver has no separate right to refuse.

What happens if the driver refuses the blood test?
Refusal is a separate offense under § 18.2-268.3. First-offense refusal is a civil violation; second offense and beyond are criminal. Birchfield v. North Dakota (2016) may affect the criminalization of refusal of warrantless blood tests, so current law should be checked.

Does the officer need a warrant?
The opinion did not address the post-Birchfield landscape (the case was decided two years later). At the time of this opinion, the implied-consent statute and the deemed-arrest provision were the operative framework. After Birchfield, the constitutional analysis for blood draws is more demanding; warrants are required in most warrantless-search scenarios for blood, though the implied-consent statute itself remains on the books for evidentiary and refusal purposes.

What if the suspect is unconscious?
Not addressed in the opinion. Mitchell v. Wisconsin (2019) later addressed the constitutional framework for blood draws from unconscious drivers. Virginia practice should be guided by current case law and statutory updates.

Can the officer go ahead with the test if the summons is issued after the draw?
The opinion was clear: no. The summons must be issued before the blood draw. Bristol v. Commonwealth is the cautionary tale: a DUI conviction was reversed because the summons issued days late did not constitute an arrest at the time of the draw.

Who can take the blood sample?
Other statutes (§§ 18.2-268.5 et seq.) govern who can draw blood for implied-consent testing (typically licensed medical personnel using specific equipment).

Does this apply only to State Police?
The same statutory framework applies to all Virginia law enforcement officers who can make DUI arrests. The opinion was requested by State Police but reaches all officers.

What if the driver is not transported to a hospital?
Section 19.2-73(B) is specifically for the hospital scenario. For non-hospital scenarios, the officer must effectuate a common-law arrest (physical force or submission) before invoking implied consent.

Background and statutory framework

• Va. Code § 18.2-266 et seq.: DUI and related offenses.
• Va. Code § 18.2-268.2(A): implied consent to blood/breath testing upon DUI arrest within 3 hours of the offense.
• Va. Code § 18.2-268.3: refusal of blood or breath test.
• Va. Code § 18.2-268.7(C): admissibility of blood test results obtained in accordance with law.
• Va. Code § 19.2-73(B): summons issued at a medical facility to a DUI suspect taken there for treatment; the summons is deemed an arrest for purposes of the DUI article.

The interpretive moves:

• The implied-consent statute requires an arrest as a precondition.
• The hospital-summons statute provides a statutory substitute for the common-law arrest steps.
• The summons must precede the blood draw.
• Bristol shows what happens when officers get the sequence wrong: the conviction is reversed.

Citations

• Va. Code § 18.2-266
• Va. Code § 18.2-268.2(A)
• Va. Code § 18.2-268.3
• Va. Code § 18.2-268.7(C)
• Va. Code § 19.2-73(B)
• Bristol v. Commonwealth, 272 Va. 568, 636 S.E.2d 460 (2006)
• California v. Hodari D., 499 U.S. 621 (1991)
• Hall v. Commonwealth, 280 Va. 566, 701 S.E.2d 68 (2010)
• Young v. Commonwealth, 57 Va. App. 731, 706 S.E.2d 53 (2011)
• Sprouse v. Commonwealth, 53 Va. App. 488, 673 S.E.2d 481 (2009)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2014/14-022_Flaherty.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
900 East Main Street
Richmond, Virginia 23219

Mark R. Herring
Attorney General

December 19, 2014

804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Colonel W.S. Flaherty
Superintendent
Department of State Police
Post Office Box 7472
Richmond, Virginia 23261-7472

Dear Colonel Flaherty:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505(A) of the Code of Virginia.

Issues Presented

You inquire about the proper procedural steps a law enforcement officer must follow to obtain a blood sample pursuant to the implied consent law where the suspect has been transported to a medical facility for treatment. You specifically seek guidance as to what constitutes a valid arrest in such situations and as to the proper timing of issuance of a summons.

Response

It is my opinion that implied consent to a blood test is triggered by a valid arrest. If a common law arrest is not feasible because a defendant is in a medical facility, the arrest may be made by the issuance of a summons pursuant to § 19.2-73(B), because that summons is deemed an arrest document. If a summons is issued, it must be based on probable cause, and it must be issued before obtaining the blood draw. The suspect should be advised of the requirements of the implied consent law, after which the blood test may be administered. The arresting officer should remain with the suspect until after the blood is drawn and then release him on the previously issued summons. If the suspect objects to the blood test, he should be charged with a violation of § 18.2-268.3 (refusal to take a blood or breath test).

Applicable Law and Discussion

In Virginia, a valid arrest is a prerequisite for invoking the implied consent law and to the admission into evidence of any blood or breath test results. Virginia's implied consent statute provides in pertinent part:

Any person ... who operates a motor vehicle upon a highway ... in the Commonwealth shall be deemed thereby, as a condition of such operation, to have consented to have samples of his blood ... taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, if he is arrested for [driving while intoxicated] ... within three hours of the alleged offense.[1]

Because the driver's timely arrest triggers the statutory consent provision, the arrest must be completed before the driver may be required to take the test.[2] Blood samples obtained in accordance with law are admissible at trial.[3]

Certain conditions must exist at common law for an officer to effectuate an arrest. Merely stating to a suspect that he is "under arrest" is not sufficient to constitute an arrest.[4] Rather, "[a]n arrest requires either physical force ... or, where that is absent, submission to the assertion of authority."[5] The General Assembly, however, has recognized the difficulty or unfeasibility of arresting a person through the exertion of physical force and submission to authority where the person is hospitalized. In situations where a suspected intoxicated driver has been transported to a medical facility, § 19.2-73(B) allows for issuance of a summons without detaining the defendant through physical force, provided probable cause exists:

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 officer at the medical facility may issue, on the premises of the medical facility, a summons for a violation of [driving while intoxicated] and for refusal of tests ... without having to detain that person, provided that the officer has probable cause to place him under arrest. The issuance of such summons shall be deemed an arrest for purposes of Article 2 (18.2-266 et seq.) of Chapter 7 of Title 18.2.[6]

A summons serves, under § 19.2-73(B), as the arrest document.[7] Accordingly, when a summons is issued pursuant to § 19.2-73(B) for a person suspected of driving while intoxicated, the person will be deemed to have been arrested for purposes of applying the implied consent law. It is the arrest, not the custody, of the suspect that triggers the implied consent law. If the suspect does not submit to the blood draw after being served with the summons, he may be charged with refusal.[8]

Thus, a person suspected of driving while intoxicated who has been transported to a medical facility may be issued a summons under § 19.2-73(B), provided probable cause exists. Once that summons has been issued, there has been a valid arrest, and the blood test may then be administered. In order to have admissible evidence that the blood test was administered in accordance with law, it would be prudent for the officer to remain with the defendant until the blood draw has been made.

Conclusion

Accordingly, it is my opinion that implied consent to a blood test is triggered by a valid arrest. If a common law arrest is not feasible because a defendant is in a medical facility, the arrest may be made by the issuance of a summons pursuant to § 19.2-73(B), because that summons is deemed an arrest document. If a summons is issued, it must be based on probable cause, and it must be issued before obtaining the blood draw. The suspect should be advised of the requirements of the implied consent law, after which the blood test should be administered. The arresting officer should remain with the suspect until after the blood is drawn and then release him on the previously issued summons. If the suspect objects to the blood test, he should be charged with a violation of § 18.2-268.3 (refusal to take a blood or breath test).

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] VA. CODE ANN. § 18.2-268.2(A) (2014) (emphasis added).

[2] Bristol v. Commonwealth, 272 Va. 568, 574-75, 636 S.E.2d 460, 464 (2006). In this case, a conviction of driving while intoxicated was reversed because no summons was issued until several days after the blood test had been administered. Also, while the defendant had been told that he was under arrest prior to administering the blood test, he was not in fact arrested at that time, and the officer left the medical facility after the blood test without detaining the defendant.

[3] See § 18.2-268.7(C) (2014).

[4] Bristol, 272 Va. at 573, 636 S.E.2d at 463.

[5] California v. Hodari D., 499 U.S. 621, 626-27 (1991) (emphasis original), accord Hall v. Commonwealth, 280 Va. 566, 701 S.E.2d 68 (2010); but see Young v. Commonwealth, 57 Va. App. 731, 706 S.E.2d 53 (2011) (rejecting the notion that arrest turns on insignificant formalities reminiscent of the medieval livery of seisin).

[6] Section 19.2-73(B) (Supp. 2014) (emphasis added).

[7] Sprouse v. Commonwealth, 53 Va. App. 488, 673 S.E.2d 481 (2009).

[8] Section 18.2-268.3 (2014).