Green v. Commonwealth (ORDER)
N/A - To be published in the Virginia Reports (2021)
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Rule of Law:
A challenge to the lawfulness of an arrest, as a statutory precondition for the applicability of Virginia’s implied consent law for breath or blood tests (Code § 29.1-738.2), is a statutory question, not a motion to suppress evidence based on constitutional grounds, and thus does not require a pretrial written filing under Code § 19.2-266.2.
Facts:
- In June 2018, Virginia Marine Resource Commission (VMRC) officers observed William Chad Green operating a vessel after sunset without a white running light.
- When officers attempted to stop Green's vessel using emergency lights and an audible siren, Green accelerated, turned into a narrow inlet, ran the vessel aground, and jumped out.
- VMRC Officer Henry Reichle chased and later detained Green.
- Officer Reichle arrested Green for operating a vessel while under the influence of alcohol.
- After his arrest, Green refused to take a breath or blood test.
Procedural Posture:
- William Chad Green was convicted by the Circuit Court of York County and City of Poquoson (trial court) of refusing to take a breath or blood test and failing to stop his boat for law enforcement.
- At his bench trial, Green sought to cross-examine Officer Reichle regarding the probable cause for his arrest, intending to challenge its lawfulness.
- The trial court ruled that Green's objection to the lawfulness of his arrest had to be raised in writing before trial, pursuant to Code § 19.2-266.2.
- Green made a motion to strike at the conclusion of the Commonwealth's evidence, which the trial court denied.
- Green appealed his conviction under Code § 29.1-738.2 to the Supreme Court of Virginia.
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Issue:
Does a defendant's challenge to the lawfulness of their arrest, as a prerequisite for implied consent to a blood or breath test under Code § 29.1-738.2, constitute a 'motion to suppress evidence' requiring a pretrial written filing under Code § 19.2-266.2?
Opinions:
Majority - All the Justices
No, a defendant's challenge to the lawfulness of their arrest, when raised as a statutory precondition for implied consent, does not constitute a 'motion to suppress evidence' requiring a pretrial written filing under Code § 19.2-266.2. The Court reasoned that Virginia's implied consent law (Code § 29.1-738.2) applies only when the defendant has been lawfully and timely arrested for one of the requisite offenses, establishing a lawful and timely arrest as a statutory predicate. Green’s argument was that his implied consent was not triggered because his arrest was unlawful, making the implied consent statute inapplicable. This is a statutory question about the applicability of the law itself, rather than a constitutional challenge seeking to suppress evidence obtained in violation of constitutional rights, which is what Code § 19.2-266.2 addresses. Therefore, the trial court erred in preventing Green from presenting evidence at trial to challenge the lawfulness of his arrest.
Dissenting - Justice Kelsey
Yes, Green's objection, despite his attempts to frame it otherwise, was fundamentally a challenge that fell squarely within the scope of Code § 19.2-266.2 and should have been raised pretrial. Justice Kelsey argued that Green was, in effect, seeking to challenge the legal relevance of the evidence of his refusal by claiming it was the 'fruit of the poisonous tree' of a Fourth Amendment violation (an arrest without probable cause). The dissent emphasized that the pretrial-notice statute aims to eliminate disputes over police conduct not directly relevant to guilt from the trial itself, and protects the Commonwealth from surprise. In refusal cases, the Commonwealth's prima facie case does not require proving the lawfulness of the arrest at trial; that inquiry is typically a pretrial matter. Therefore, Green's probable-cause challenge was an 'archetypal constitutional claim' and his motion to strike, if successful, would have rendered the Commonwealth’s evidence of refusal legally irrelevant, which is functionally equivalent to suppressing evidence.
Analysis:
This case clarifies the procedural requirements for challenging implied consent charges in Virginia, specifically distinguishing statutory applicability arguments from constitutional suppression motions. It reinforces that a lawful and timely arrest is a fundamental prerequisite for the implied consent statute to apply, ensuring defendants can challenge this element during trial without prior written notice if framed as a statutory challenge. The ruling may lead to more in-trial challenges to arrest lawfulness in implied consent cases and requires trial courts to carefully differentiate between statutory and constitutional grounds for objections.
