Shin v. Commonwealth , 294 Va. 517 ( 2017 )

PRESENT: All the Justices
NATHAN LEE SHIN
OPINION BY
v. Record No. 170128 JUSTICE CLEO E. POWELL
December 28, 2017
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
John M. Tran, Judge
Nathan Lee Shin (“Shin”) appeals the circuit court’s ruling that he unreasonably refused
to submit to a breath test in violation of Code § 18.2-268.3. Shin contends that Virginia’s
implied consent law (Code §§ 18.2-268.2 and -268.3) imposes an unconstitutional condition
upon the privilege to drive within the Commonwealth and, therefore, it was reasonable for him to
refuse to provide a blood or breath sample when he was arrested on suspicion for driving while
intoxicated (“DWI”). Additionally, he takes issue with the fact that Code § 18.2-268.3 lacks an
objective definition of what constitutes a reasonable refusal under the statute. Finally, he claims
that the implied consent law violates Article I, § 8 of the Virginia Constitution.
I. BACKGROUND
On August 29, 2015, Shin was detained on suspicion of DWI. Upon arresting Shin, the
arresting officer demanded that he provide a blood and breath sample. Shin declined, stating that
he did not believe he was intoxicated. The arresting officer then read a statutorily required form
(Form DC-233 (rev.7/2005), hereafter the “Implied Consent Declaration”) to Shin. See Code
§ 18.2-268.3(C) (requiring an arresting officer to advise an individual arrested for DWI of the
implied consent law using “a form provided by the Office of the Executive Secretary of the
Supreme Court”). 1 The relevant portion of the Implied Consent Declaration stated: “You shall
submit to a breath test. If the breath test is unavailable or you are physically unable to submit to
the breath test, a blood test shall be given.” 2 Shin refused to provide a sample and signed a
“Declaration of Refusal,” which stated that he had been advised by the arresting officer about the
law requiring that he “permit the taking of a breath sample and/or a blood sample” and the
penalty for unreasonably refusing to provide such samples.
Shin was subsequently charged with DWI - second offense, unreasonable refusal of a
breath or blood test - second offense, and making an improper lane change. Shin was tried in the
general district court and he was convicted of DWI - second offense, unreasonable refusal of a
breath or blood test - first offense, and improper lane change. Shin appealed his convictions to
the circuit court and demanded a jury trial.
At trial, after the Commonwealth presented its evidence and Shin moved to strike, the
parties agreed that the jury demand should be waived as to the unreasonable refusal charge
because that charge involved purely legal questions. The circuit court agreed and took the matter
under advisement. The jury subsequently acquitted Shin of DWI - second offense, but convicted
him of the improper lane change charge.
The parties then submitted opposing briefs on the unreasonable refusal charge. After
considering the parties’ arguments, the circuit court found Shin’s refusal was unreasonable and,
1
In 2017, the General Assembly substantially amended Code § 18.2-268.3. See 2017
Acts ch. 623. For the purposes of this opinion, however, we will rely on the version of Code
§ 18.2-268.3 in effect at the time the offense occurred.
2
In light of the General Assembly’s substantial amendment to Code § 18.2-268.3,
portions of the Implied Consent Declaration form were modified by the Office of the Executive
Secretary of the Supreme Court. The language relevant to the present case was not modified.
2
therefore, in violation of Code § 18.2-268.3. The circuit court then suspended Shin’s license for
one year.
Shin appeals.
II. ANALYSIS
On appeal, Shin argues that the circuit court erred in finding that he violated Code § 18.2-
268.3 for several reasons. Shin contends that the implied consent law violates the
unconstitutional conditions doctrine and, therefore, he reasonably refused the arresting officer’s
demand for both a blood and breath sample. He further asserts that Code § 18.2-268.3 is
unconstitutionally vague. Finally, he claims that the implied consent law violates Article I, § 8
of the Virginia Constitution by compelling him to provide the Commonwealth with potentially
incriminatory evidence.
A. UNCONSTITUTIONAL CONDITIONS
In his first two assignments of error, Shin argues that the trial court erred in finding that
his refusal was unreasonable because Virginia’s implied consent law violates the
unconstitutional conditions doctrine. According to Shin, the implied consent law conditions his
driving privileges within the Commonwealth on the waiver of his Fourth Amendment right
against unreasonable searches. He therefore concludes that it was reasonable for him to refuse to
waive his rights and provide the blood and breath samples requested by the arresting officer. We
disagree.
The unconstitutional conditions doctrine states that:
a State can not grant a privilege subject to the agreement that the
grantee will surrender a constitutional right, even in those cases
where the State has the unqualified power to withhold the grant
altogether. Where such a condition is imposed upon the grantee,
he may ignore or enjoin the enforcement of the condition without
thereby losing the grant.
3
City of Alexandria v. Texas Co., 172 Va. 209, 217, 1 S.E.2d 296, 299 (1939).
The rationale underlying this doctrine is simple:
If the state may compel the surrender of one constitutional right as
a condition of its favor, it may, in like manner, compel a surrender
of all. It is inconceivable that guaranties embedded in the
Constitution of the United States may thus be manipulated out of
existence.
Frost & Frost Trucking Co. v. Railroad Comm’n of Cal., 271 U.S. 583, 594 (1926).
The relevant portion of the implied consent law states:
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, breath, or both blood and breath taken for a chemical
test to determine the alcohol, drug, or both alcohol and drug
content of his blood, if he is arrested . . . within three hours of the
alleged offense.
Code § 18.2-268.2(A) (emphasis added).
Shin’s argument focuses entirely on the portion of the implied consent law that
conditions the privilege of operating a motor vehicle on the operator’s consent to provide a blood
sample. He claims that, because the Fourth Amendment requires police to get a warrant to draw
a blood sample, 3 the implied consent law cannot condition his driving privileges upon consent to
provide a blood sample, as such a condition requires him to waive his Fourth Amendment
rights. 4 Therefore, according to Shin, under the unconstitutional conditions doctrine, it was
reasonable for him to ignore the arresting officer’s demand for a blood sample.
3
See Missouri v. McNeely, 569 U.S. 141, 152 (2013) (“In those drunk-driving
investigations where police officers can reasonably obtain a warrant before a blood sample can
be drawn without significantly undermining the efficacy of the search, the Fourth Amendment
mandates that they do so.”)
4
Notably, Shin takes no issue with regard to the fact that our implied consent law also
conditions the operation of a motor vehicle within the Commonwealth on the consent to provide
a breath sample. Nor could he, as such a condition does not involve the waiver of a
4
It is important to note, however, that the operation of a motor vehicle within the
Commonwealth is not conditioned solely upon the operator’s consent to provide a blood sample;
it is conditioned upon the operator consenting to providing a blood sample or a breath sample or
both a blood and a breath sample. Code § 18.2-268.2(A). The fact that Code § 18.2-268.2(A) is
written in the disjunctive is important because the Supreme Court of the United States has
expressly held that “the Fourth Amendment permits warrantless breath tests incident to arrests
for drunk driving.” Birchfield v. North Dakota, 579 U.S. ___, ___, 135 S. Ct. 2160, 2184 (2016).
Accordingly, conditioning driving privileges on consent to provide a breath sample is, by
definition, not an unconstitutional condition. Thus, the unconstitutional conditions doctrine
could only apply in the present case if the record demonstrates that Shin’s refusal was based on
the arresting officer’s demand for a blood sample, and not his demand for a breath sample.
Recognizing this, Shin focuses on the fact that the arresting officer purportedly demanded
both a blood and a breath test. Shin claims that, due to the conjunctive nature of the demand, the
arresting officer was demanding both a blood sample and a breath sample. Shin posits that this
all-or-nothing approach by the arresting officer allowed him to reasonably refuse to provide any
sample, as the officer did not have a warrant requiring him to submit a blood sample. We note,
however, that Shin’s argument is based on a narrow reading of the record, that is devoid of any
context. Notably, Shin’s interpretation of the record focuses entirely on the portion of the
written statement of the facts made part of the record pursuant to Rule 5:11(e), the relevant
portion of which states that “[t]he arresting police officer demanded a blood and breath test from
constitutional right. See Birchfield v. North Dakota, 579 U.S. ___, ___, 136 S. Ct. 2160, 2184
(2016) (holding that “the Fourth Amendment permits warrantless breath tests incident to arrests
for drunk driving.”).
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[Shin], first orally, and then by means of reading the Implied Consent [D]eclaration.” Absent
any additional context, it would appear that Shin is correct and the arresting officer did request a
sample of both blood and breath.
However, when this statement is viewed in conjunction with the Implied Consent
Declaration, the actual nature of the arresting officer’s demand becomes readily apparent. The
Implied Consent Declaration states: “You shall submit to a breath test. If the breath test is
unavailable or you are physically unable to submit to a breath test, a blood test shall be given.” 5
Thus, when viewed in the proper context, it is clear that the arresting officer did not demand both
a blood and breath sample. Instead, the officer’s actual demand was for a breath sample, and any
demand for a blood sample was, at best, conditioned upon Shin’s inability to provide a breath
sample or the arresting officer’s inability to take a breath sample. As neither of these conditions
were met, it cannot be said that there was an actual demand for a blood sample in the present
case. Accordingly, we do not reach the question of whether the unconstitutional conditions
doctrine applies to the portion of the implied consent law that addresses blood samples. 6
B. VOID FOR VAGUENESS
Shin next argues that Code § 18.2-268.3 is unconstitutionally vague because it does not
provide a fixed, objective legal standard for determining when a refusal is reasonable. He claims
that the lack of such an objective standard makes it impossible for an individual to determine in
advance whether his refusal to provide the required sample will be deemed reasonable or
5
The operative language of the Declaration of Refusal, which Shin signed
contemporaneous with his refusal, is virtually identical to the language in the Implied Consent
Declaration.
6
Similarly, we do not address whether the nature of the punishment has any bearing on
the application of the unconstitutional conditions doctrine to a blood draw under the implied
consent law.
6
unreasonable. This, according to Shin, indicates that the reasonableness of a refusal is entirely
subjective, which, in turn, results in arbitrary enforcement.
“[S]tatutes are not automatically invalidated as vague simply because difficulty is found
in determining whether certain marginal offenses fall within their language.” United States v.
National Dairy Prods. Corp., 372 U.S. 29, 32 (1963). Rather, it has been recognized that “[v]oid
for vagueness simply means that criminal responsibility should not attach where one could not
reasonably understand that his contemplated conduct is proscribed.” Id. at 32-33. The Supreme
Court of the United States has explained that a law is unconstitutionally vague “if it is so vague
and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges
and jurors free to decide, without any legally fixed standards, what is prohibited and what is not
in each particular case.” Giaccio v. Pennsylvania, 382 U.S. 399, 402-03 (1966).
By arguing that Code § 18.2-268.3 is unconstitutionally vague, Shin is raising a facial
constitutional challenge to the statute, which this Court reviews de novo. Toghill v.
Commonwealth, 289 Va. 220, 227, 768 S.E.2d 674, 678 (2015).
Facial challenges are disfavored because they create a risk of
“premature interpretation of statutes on the basis of factually
barebones records”; they “run contrary to the fundamental
principle of judicial restraint that courts should neither anticipate a
question of constitutional law in advance of the necessity of
deciding it nor formulate a rule of constitutional law broader than
is required by the precise facts to which it is to be applied,” and
they invalidate an entire law that was passed through the
democratic process.
Id. at 227-28, 768 S.E.2d at 678 (quoting Washington State Grange v. Washington State
Republican Party, 552 U.S. 442, 450 (2008) (some internal quotation marks omitted)).
Before a litigant can mount a successful facial challenge to a statute, that litigant must
first show “that the statute in question is unconstitutional as applied to him.” Id. at 228, 768
S.E.2d at 678. “[I]f a statute is constitutional as applied to a litigant, he or she lacks standing to
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assert a facial constitutional challenge to it, and the statute is not facially unconstitutional
because it has at least one constitutional application.” Id. Thus, before we can address whether
Code § 18.2-268.3 is unconstitutionally vague, we must first determine whether the statute would
be unconstitutional as applied to Shin.
In determining the sufficiency of the notice provided by a statute, the statute “must of
necessity be examined in the light of the conduct with which a defendant is charged.” National
Dairy Prods., 372 U.S. at 33. Therefore, because Shin’s argument is that Code § 18.2-268.3
lacks an objective standard for determining whether a refusal is reasonable, in order to have
standing to challenge the constitutionality of the statute, Shin must first establish that his reason
for refusing to take the breath test was objectively reasonable. Under the facts of this case, he
has failed to meet this burden.
Here, the record demonstrates that Shin refused to take the breath test because “he did not
believe he was intoxicated and should not have been subjected to such tests.” Such a belief is
entirely subjective. Indeed, this Court has expressly held that “a driver’s subjective belief that he
was not under the influence of alcohol is not a reasonable basis for refusing the test.” Cash v.
Commonwealth, 251 Va. 46, 50, 466 S.E.2d 736, 738 (1996). As we explained in Cash, the
entire purpose of a breath test is to objectively prove or disprove the sobriety of the individual.
Id. at 52, 466 S.E.2d at 739 (“The chemical analysis of one’s blood provides a scientifically
accurate method of determining whether a person is intoxicated; it protects one who may appear
to be intoxicated when, in fact, the individual is sober.”).
Moreover, it cannot be said that there is no objective standard for determining when a
refusal is reasonable. Notably, this Court has provided an illustration of such an objectively
reasonable refusal: where a person’s health would be endangered by the test. See id. at 50, 466
8
S.E.2d at 738 (citing Deaner v. Commonwealth, 210 Va. 285, 293, 170 S.E.2d 199, 204 (1969));
see also Bailey v. Commonwealth, 215 Va. 130, 131, 207 S.E.2d 828, 829 (1974). Thus, the
public is not, as Shin insists, unaware of what constitutes a reasonable refusal, because our case
law provides an explicit example. See generally Flannery v. Norfolk, 216 Va. 362, 366, 218
S.E.2d 730, 733 (1975).
As Shin failed to offer an objectively reasonable basis for refusing to provide a breath
sample, he has necessarily failed to establish that Code § 18.2-268.3 was unconstitutional as
applied to him. Accordingly, Shin lacks standing to challenge the constitutionality of the statute.
Further, because there is at least one constitutional application of Code § 18.2-268.3, Shin’s
facial constitutional challenge also fails.
C. ARTICLE I, SECTION 8 OF THE VIRGINIA CONSTITUTION
Finally, Shin argues that the implied consent law violates Article I, § 8 of the Virginia
Constitution because it compels him to provide police with the evidence that may be used to
establish his guilt. Shin relies on the plain language of Article I, § 8 of the Virginia Constitution,
which explicitly states that no individual shall “be compelled in any criminal proceeding to give
evidence against himself.” According to Shin, a blood or breath sample is evidence under
Article I, § 8 of the Virginia Constitution, as such samples are ultimately used to determine an
individual’s blood alcohol content and, therefore, Shin cannot be compelled to provide such
samples.
Shin acknowledges that this Court has previously addressed this issue and come to the
opposite conclusion in Walton v. City of Roanoke, 204 Va. 678, 133 S.E.2d 315 (1963).
However, he asserts that Walton was wrongly decided because the Court relied extensively on
the Fifth Amendment jurisprudence of the Supreme Court of the United States. According to
9
Shin, the protection provided by the Fifth Amendment is much narrower than that provided by
Article I, § 8. He notes that the Fifth Amendment uses the term “witness” and, therefore, its
protection “does not extend beyond testimonial compulsion.” Walton, 204 Va. at 682, 133
S.E.2d at 318. Article I, § 8, on the other hand, uses the term “evidence.” As testimony is one
form of evidence, Shin insists that Article I, § 8 must encompass much broader protection. We
disagree.
Walton does not, as Shin insists, narrow the scope of Article I, § 8 to fit within the
confines of the Fifth Amendment. Rather, the Supreme Court of the United States expressly
broadened the scope of the Fifth Amendment to encompass the broader protections against self-
incrimination guaranteed by various state constitutions, including Virginia’s.
[A]s the manifest purpose of the constitutional provisions, both of
the States and of the United States, is to prohibit the compelling of
testimony of a self-criminating kind from a party or a witness, the
liberal construction which must be placed upon constitutional
provisions for the protection of personal rights would seem to
require that the constitutional guaranties, however differently
worded, should have as far as possible the same interpretation; and
that where the constitution, as in the cases of Massachusetts and
New Hampshire, declares that the subject shall not be “compelled
to accuse or furnish evidence against himself,” such a provision
should not have a different interpretation from that which belongs
to constitutions like those of the United States and of New York,
which declare that no person shall be “compelled in any criminal
case to be a witness against himself.” . . . It is a reasonable
construction, we think, of the constitutional provision, that the
witness is protected “from being compelled to disclose the
circumstances of his offence, the sources from which, or the means
by which, evidence of its commission, or of his connection with it,
may be obtained, or made effectual for his connection, without
using his answers as direct admissions against him.” Emery’s
Case, 107 Mass. 172, 182 (Mass. 1871)
Counselman v. Hitchcock, 142 U.S. 547, 584-85 (1892) (quoting Emery’s Case, 107 Mass. 172,
182 (Mass. 1871)). See also Schmerber v. California, 384 U.S. 757, 761 n.6 (1966).
10
It is further worth noting that Shin’s argument divorces the term “evidence” from the
context in which it is used. Article I, § 8 does not, as Shin insists, protect an individual from
having to give incriminatory evidence. Rather, by its plain language, Article I, § 8 only protects
an individual from being compelled to “give evidence against himself.” In other words, an
individual cannot be compelled to give self-incriminating evidence.
The distinction is subtle, but important. Self-incriminating evidence is testimonial or
communicative of the individual’s thoughts, whereas incriminatory evidence is not. See
Schmerber, 384 U.S. at 765 (holding that “blood test evidence, although an incriminating
product of compulsion, was neither petitioner’s testimony nor evidence relating to some
communicative act or writing by the petitioner” and, therefore, “it was not inadmissible on
privilege grounds.”). As this Court recognized long ago, if Article I, § 8 applied to protect an
individual from having to provide any incriminatory evidence, “then no one accused of crime
could be compelled to submit to fingerprinting, photographing, or the routine police ‘line up’ for
identification, which are everywhere admitted to be proper.” Owens v. Commonwealth, 186 Va.
689, 702, 43 S.E.2d 895, 901 (1947). A breath test, like a blood test, is not testimonial; it does
not communicate anything related to an individual’s thoughts or motivations. Accordingly, the
implied consent law does not implicate the protections encompassed by Article I, § 8 of the
Virginia Constitution.
III. CONCLUSION
For the foregoing reasons, we will affirm the decision of the circuit court.
Affirmed.
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