By: Stephen P. Pfeiffer

Virginia Implied Consent Overview

You can be charged under Virginia Code  §18.2-266 for DUI on any type of property; private or public. However, if the Commonwealth of Virginia cannot establish that the vehicle was operated on a public highway they cannot require you to provide a breath or blood sample under the Virginia Implied Consent laws (See Virginia Code § 18.2-268.2).

Under Implied Consent you have consented to provide a breath or blood sample by the mere act of operating on the “highways” of the Commonwealth. Thus, it is presumed you have consented. If you refuse to provide a breath/blood sample after being validly arrested on a charge of DUI you can be cited for refusal. A first offense refusal is a civil violation that results in the suspension of your license without any restricted/hardship exemptions for one year. Whereas, if you are convicted of DUI the court may grant your restricted/hardship privileges during your one year suspension.

Highway v. Private Property

What is a “Highway”?  Virginia Code § 46.2-100 defines a highway as:

"Highway" means the entire width between the boundary lines of every way or place open to the use of the public for purposes of vehicular travel in the Commonwealth, including the streets and alleys, and, for law-enforcement purposes, (i) the entire width between the boundary lines of all private roads or private streets that have been specifically designated "highways" by an ordinance adopted by the governing body of the county, city, or town in which such private roads or streets are located and (ii) the entire width between the boundary lines of every way or place used for purposes of vehicular travel on any property owned, leased, or controlled by the United States government and located in the Commonwealth.

The definition of a private parking lot is controlled by several decisions of the Virginia Court of Appeals and Virginia Supreme Court and will not be covered in this article. Generally, private parking lots that restrict trespassing after hours and are for the exclusive use of patrons are not considered a “highway”. However, whether a parking lot qualifies as a “highway” for purposes of implied consent is a technical legal analysis.

So how does the Commonwealth prove you operated on a “highway” if all of the officer’s observations occurred on a private parking lot and there is no witness or other evidence of driving on the “highway”?

The evidence usually comes from YOU! The officer will ask you where you came from? If you were driving? When and where was your last drink? Your words can provide the Commonwealth the evidence they need to establish operation on the “highway” and allow for the admission of the breath/blood test if you took them or to support a finding against you for refusal. If you drove on the road to get to the private parking lot and you admit that you drank before driving you have now put yourself on a “highway” by your own admission.

You should never lie to the police…instead you should exercise your 5th Amendment Right to remain silent as it relates to private property DUI charges.

Note: even if the DUI charge happened exclusively on private property, if you consent to give a breath/blood sample it can be used against you.

By no means is this a full legal analysis of Private Property DUI case law. This short article is not legal advice nor should be considered legal advice. The sole purpose is to shed some light on common misconceptions as it relates to breath/blood samples and implied consent on private property. 


About the Author:

Stephen P. Pfeiffer is known locally as the “Go-To-DUI and Criminal Defense Attorney.” Stephen is a partner at Wolcott Rivers Gates, one of the oldest and largest law firms in Virginia Beach. Stephen has been published as a coauthor in the in the nationally recognized “Inside the Minds” series by Aspatore Books on ­The Legality of Search and Seizure in DUI Cases “A Practitioner’s Everyday Insight Into DWI/DUI Defense in Virginia”. Stephen has an AV® Preeminent Rating – the highest rating available from Martindale-Hubbell, the leading independent attorney rating entity. An AV® Rating signifies that the lawyer has reached the heights of professional excellence. Stephen was selected as a member of the National College of DUI Defense Attorneys and has been recognized as one of the top 100 DUI attorneys in Virginia by the National Advocacy for DUI Defense. Additionally, Stephen is consistently recognized as one of Virginia's Legal Elite by Virginia Business Magazine as well as being selected as a "Rising Star" by Virginia Super Lawyers.  Recently Stephen was selected as Top 40 Under 40 Criminal Defense Lawyers for Virginia by the American Society of Legal Advocates. Additionally, Stephen is a founding member of the American Association of Premier DUI Attorneys. Stephen has also recently received recognition from the NACDA as a "Top 10 Under 40" for DUI Defense. Stephen was the American Bar Association's 2007 National Champion in Legal Negotiations and serves as an adjunct professor at Regent University School of Law.