First DUI - Arrest Question

[Helotours]

From Virginia.

I was driving on the interstate and ran off the road and hit some bushes and trees. Waited there for almost an hour (or more) for rescue personnel because I was unconcious. No serious injuries.

No trooper accompanied me to the hospital. Gave me a summons for DUI after a preliminary breath test. I refused the evidentiary blood test. I refused to sign the DUI summons and the refusal summons. I also requested that I be taken to the magistrate. Instead of doing so, the trooper released me "to the custody of the hospital." He also neglected to confiscate my VA Driver's License for administrative suspension as state law requires.

My contention is that I was never really under arrest. VA Circuit and Supreme Court rulings indicate that arrest must include a physical or obvious submission to the police officer. Since I wasn't detained, I wasn't handcuffed, I didn't sign the summons and wasn't taken to the magistrate - I may not be considered by a trial court to have been under arrest at all. The fact that the trooper did not take my license and suspend it is further evidence that I may not have been under arrest in the first place. It's been a week and I checked on-line with the DMV. My license is still valid, even though I should be within a seven day administrative suspension period.

Forgot to add that I was never read my Miranda rights, either.

Any thoughts on this?

Thanks.

 

[ERAUPIKE]

Miranda is not required in most cases. Where did you get your information on an arrest in Virginia? What makes you think that you must be arrested to be charged with a crime? You were issued a summons whether you signed it or not. Your current line of thinking is most likely going to result in a FTA charge you really don't need. I would suggest you spend less time trying to weasel out of your DUI charge and more time trying to address your drinking problem.

 

[41tellthetruth]

A couple more thoughts. The hospital likely drew your blood so they could determine your level of intoxication. The Trooper can get a search warrant to obtain those results.

Your license wasn't seized because your BAC was unknown at the time. Many states require you to be at the per se limit (.08) for license to be seized by the officer at the scene.

Get an attorney and follow his/her advice.

 

[CdwJava]

A subpoena should suffice - they won't need a search warrant.

 

[Helotours]

Response.

A couple more thoughts. The hospital likely drew your blood so they could determine your level of intoxication. The Trooper can get a search warrant to obtain those results.

Your license wasn't seized because your BAC was unknown at the time. Many states require you to be at the per se limit (.08) for license to be seized by the officer at the scene.

Get an attorney and follow his/her advice.

Are you an attorney?? VA State Law requires that 1. The trooper take me to a magistrate if I don't sign a summons OR if I request a magistrate. 2. The VA Supreme Court has determined that an arrest must be made before Virginia's implied consent law takes effect.

I can see that this site is just a bunch of bashing on people that made mistakes... and not really anything helpful, legally.

Good luck to the people on here who really do need advice on the issues. You need to look somewhere else for it.

 

[Mass_Shyster]

I may not be considered by a trial court to have been under arrest at all.

Any thoughts on this?

If your username indicates your occupation, the FAA needs to be informed of the refusal.

I'm not well versed on the VA specific criminal procedures. You'll probably need a VA attorney to advise you.

 

[CdwJava]

And implied consent is not relevant if they obtain a copy of the hospital's BAC. If they can initiate a criminal case and get a subpoena they can still make the case.