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Commonwealth v. Rafferty3/1/1991
JUSTICE WHITING delivered the opinion of the Court.
In this case, we must decide whether the Commonwealth can appeal from a finding of not guilty in a prosecution for unreasonably refusing to submit to a blood or breath alcohol test. If the Commonwealth can appeal, then we must decide which appellate court has jurisdiction. Finally, if this Court has jurisdiction, we must decide (1) whether the defendant can be charged by summons rather than by warrant, and (2) whether the magistrate's certificate of refusal must be attached to the summons or warrant.
On April 30, 1988, James Joseph Rafferty was arrested on a charge of drunk driving and offered the choice of a blood or breath test to determine the alcohol content of his blood. Upon his refusals to take either test after the appropriate warnings, a magistrate issued a summons charging Rafferty with the failure to take either test in violation of Fairfax County Code § 82-4-19(p)-(t). The summons advised Rafferty of the nature and character of the charge, and was returnable to the Fairfax County General District Court at a stated time and place.
The general district court found that Rafferty had violated the provisions of Fairfax County Code § 82-4-19(p)-(t). This code section mandates specified periods of driver's license suspension for any person suspected of drunk driving who unreasonably fails to submit to a blood or breath test. Upon Rafferty's appeal, the circuit court dismissed the case, concluding that the magistrate could charge this statutory violation only by use of a warrant.
The Commonwealth appealed to the Court of Appeals. On June 27, 1990, that Court held it did not have subject matter jurisdiction to hear the appeal, and transferred the case to this Court pursuant to the provisions of Code § 8.01-677.1. We awarded this appeal on October 10, 1990.
Initially, Rafferty argues that the Commonwealth has no right to appeal this case because it involves a criminal charge. He recognizes that we have held proceedings charging unreasonable refusal to submit to testing to be administrative and civil and not criminal in nature. Deaner v. Commonwealth, 210 Va. 285, 293, 170 S.E.2d 199, 204 (1969). We have, therefore, permitted municipalities to appeal adverse decisions of such charges under municipal ordinances paralleling the state statute. City of Norfolk v. Brown, 218 Va. 924, 925, 243 S.E.2d 200, 200 (1978); City of
Virginia Beach v. Reneau, 217 Va. 867, 867 n.1, 234 S.E.2d 241, 241 n.1 (1977). Brown and Reneau were decided under local ordinances that paralleled the same statute applicable in Deaner, which, at all times relevant to those three cases, provided that "the procedure for appeal and trial [of unreasonable refusal cases] shall be the same as provided by law for misdemeanors." Code § 18.1-55.1(p), later Code § 18.2-268(P), now § 18.2-268(V), as amended.
Rafferty contends, however, that the General Assembly modified the Deaner rationale, and made an unreasonable refusal a criminal offense. In support, Rafferty cites the addition of the following language to the ancestor of Code § 18.2-268(V): "If requested by either party, trial by jury shall be as provided in [Code § 19.2-260, et seq.] and the Commonwealth shall be required to prove its case beyond a reasonable doubt." Acts 1977, c. 659, Code § 18.2-268(V); Fairfax County Code § 82-4-19(v).
We assume legislative familiarity with Deaner wh
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