Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Shin v. Commonwealth

Supreme Court of Virginia

December 28, 2017

NATHAN LEE SHIN
v.
COMMONWEALTH OF VIRGINIA

         FROM THE CIRCUIT COURT OF FAIRFAX COUNTY John M. Tran, Judge

         PRESENT: All the Justices

          OPINION

          CLEO E. POWELL, JUSTICE

         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, 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.