ROANOKE TIMES
Copyright (c) 1997, Roanoke Times
DATE: Tuesday, February 4, 1997 TAG: 9702040080
SECTION: CURRENT PAGE: NRV-2 EDITION: NEW RIVER VALLEY
COLUMN: reporters notebook
SOURCE: LISA K. GARCIA
Driving a car is a privilege, not a right.
This is a difficult concept for most people to realize because driving a car is so integral in our particularly mobile society. Many people liken it to their right to have a defense attorney appointed if they cannot afford one to defend against criminal charges.
It is not.
Questions about the apparent collision of personal "rights" and public safety have surfaced most recently in connection with the recent fatality on Virginia Tech's campus.
In that case, a student died in early January after he was hit by a car near Lane Stadium. The driver of the car was charged with felony drunken driving and a civil - not criminal - charge of refusal to take a breath or blood test.
Evelyn Williams' attorney said the reasons for his client's refusal will become apparent at trial. The Montgomery County commonwealth's attorney recently added the charge of involuntary manslaughter against Williams in part because of the blood test that Williams took. But that step came only after police got a search warrant to obtain a sample of her blood.
The case brings several legal questions to the fore; they are questions with answers that affect us all.
First, do drivers have a right to refuse to take a sobriety test that a police officer requests?
The simple answer is yes, a driver may refuse. But there is a penalty. Police can, and often do, charge the driver with refusal. If the driver is found guilty, the civil penalty is an automatic one-year suspension of the person's driver's license. Because it is a civil charge, the accused does not have a right to an attorney. There are no exceptions and no leeway in the punishment - such as a restricted license that would allow the person to drive only to and from work. Drivers charged with refusal must be informed about the consequences and sign a form stating they understand.
Floyd County Commonwealth's Attorney Gino Williams said he rarely sees a case where a person charged with refusal is not convicted. He said people charged with both drunken driving and refusal can be, and are, found guilty of refusal even if they are not convicted of driving while intoxicated. He said the legal test is whether the driver's refusal is viewed as "unreasonable."
"As far as a prosecutor's concerned, a conviction for refusal is almost routine, almost all [refusals] are unreasonable," he said. "Either way you're going to get them off the road."
Williams admitted the breath and blood tests certainly make a drunken driving conviction easier to get if the test shows a blood-alcohol concentration higher than the legal limit of 0.08 percent.
Without the certificate of analysis, he said, "You have to show more reckless driving, a very strong odor of alcohol, slurred speech and failure of several sobriety tests."
Another question raised by this case is "Why do I have to submit to these tests?"
Both the Floyd County prosecutor and Susan Marchon said normally the incorrect assumption drivers make is that it is their "right" to have a driver's license and police do not have any right to "search" their body for the presence of alcohol without their permission.
Marchon, the executive director of the New River Valley Alcohol Safety Action Program, said drivers "rent" their licenses from the state. Williams likened the relationship to a lease.
In either case, their point is the same: driving is a privilege granted by the state that the state can take back at any time for a number of reasons, some of which have no connection to driving habits at all.
"It all ties into your driver's license not belonging to you," Williams said.
Virginia also has a long-standing "implied consent law," which is part of the contract a driver enters into with the state when they sign the forms to get a driver's license. Under it, anyone who get a license agrees to take the sobriety tests if an officer asks.
Marchon said the Fourth Amendment, which protects citizens from unreasonable searches and seizures, does not come into play here.
Williams said that because a driver's license is viewed as a civil contract it has nothing to do with Fourth Amendment rights.
"It's a very fine distinction that has been drawn," he said. "When you refuse to take a [sobriety] test, they have a right to take your driver's license back; basically you breached the contract."
Marchon said the drunken driving laws have changed so much over the years that the officer's job has become more difficult.
"Arresting someone for DWI is a very complicated procedure," she said. "There are a lot of things the officers have to do and make sure they do right."
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