Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell, and 

 Keenan, JJ., and Poff, Senior Justice 

CAROLYN T. CASH 

OPINION BY JUSTICE A. CHRISTIAN COMPTON 

v. Record No. 950720 January 12, 1996 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF BUENA VISTA 

Thomas H. Wood, Judge 

 On September 9, 1994, about 1:00 a.m., defendant Carolyn T. 

Cash was arrested and charged with driving a vehicle in the City 

of Buena Vista while under the influence of alcohol (DUI) in 

violation of Code § 18.2-266. On the same day, defendant also 

was charged in a warrant under Code § 18.2-268.2, a part of 

Virginia's implied consent law, with refusing to submit to a 

blood or breath test to determine the alcohol content of her 

blood. 

 Subsequently, defendant was tried on both charges in the 

local general district court. She was acquitted of DUI and 

convicted of the refusal charge. She appealed the conviction to 

the circuit court. 

 Pretrial, the circuit court granted the prosecutor's motion 

to exclude certain evidence proffered by the defendant on the 

reasonableness of her refusal to submit to the blood or breath 

test. The prosecutor asked the court to prohibit, for example, 

any evidence regarding defendant's sobriety at the time of arrest 

and evidence of the outcome of the DUI charge on the ground that 

such evidence is irrelevant to the charge of unreasonable refusal 

to submit to such test. 
- 2 - 

 Following a jury trial, at which only the arresting police 

officer testified, defendant was found guilty of the refusal 

charge. She was sentenced to revocation of her driving 

privileges for one year, in accord with the verdict, and ordered 

to pay court costs. The defendant appeals from the January 1995 

judgment order, which has been suspended during the appeal. 

 The central question on appeal is whether the trial court 

erred in granting the prosecutor's pretrial motion limiting the 

evidence defendant could present to the jury. 

 Initially, the relevant law should be reviewed. Under the 

implied consent law, any person who operates a motor vehicle upon 

a highway in the Commonwealth is deemed, as a condition of such 

operation, to have consented to have samples of blood, breath, or 

both, taken for a chemical test to determine alcohol content of 

the person's blood, if that person is arrested for DUI in 

violation of the applicable statutes or of a similar local 

ordinance. Code § 18.2-268.2(A). 

 A person so arrested must be advised by the arresting 

officer of the implied consent condition and that "the 

unreasonable refusal" to submit to a test constitutes grounds for 

revocation of driving privileges. If the person refuses to 

permit the testing, the person shall be taken before a 

magistrate, who must advise the person again of the implied 

consent law's requirements. If the person declares the refusal 

in writing on a prescribed form, or refuses to so declare, then 
- 3 - 

no samples shall be taken. Code § 18.2-268.3(A). 

 Upon such refusal, the magistrate shall certify to such fact 

and that the person was advised of the law's requirements, and 

shall charge the person with a violation of Code § 18.2-268.2 for 

refusing the test. Code § 18.2-268.3(B). 

 At trial of the refusal charge, the declaration of refusal 

or the magistrate's certificate is prima facie evidence that the 

defendant refused to submit to the testing. "However, this shall 

not prohibit the defendant from introducing on his behalf 

evidence of the basis for his refusal. The court shall determine 

the reasonableness of such refusal." Code § 18.2-268.3(E). 

 In construing the foregoing statutes and their predecessors, 

this Court has decided that operation of a motor vehicle while 

under the influence of alcohol or drugs may give rise to two 

separate and distinct proceedings -- one a criminal action for 

DUI and the other a civil, administrative proceeding on the 

refusal charge. "Each action proceeds independently of the other 

and the outcome of one is of no consequence to the other." 

Deaner v. Commonwealth, 210 Va. 285, 289, 170 S.E.2d 199, 201 

(1969). See Commonwealth v. Rafferty, 241 Va. 319, 321-23, 402 

S.E.2d 17, 18-19 (1991). Cf. Code § 18.2-268.4 (if defendant 

pleads guilty to DUI, court may dismiss refusal charge). 

 The consent to submit to a blood or breath test, granted 

when a person operates a motor vehicle upon the highways, "is not 

a qualified consent and it is not a conditional consent, and 
- 4 - 

therefore there can be no qualified refusal or conditional 

refusal to take the test." Deaner, 210 Va. at 292, 170 S.E.2d at 

 204. The mere fact that under the statute "an accused is 

afforded an opportunity to establish the reasonableness of his 

refusal does not operate to dilute the consent previously given, 

or convert that consent into a qualified or conditional one." 

Id. at 292-93, 170 S.E.2d at 204. Illustrative of a refusal that 

would be deemed reasonable is when "a person's health would be 

endangered by the withdrawal of blood." Id. at 293, 170 S.E.2d 

at 204. 

 The Court has held that a person's unwillingness to take the 

test without prior consultation with counsel does not constitute 

a reasonable basis for the refusal. Coleman v. Commonwealth, 212 

Va. 684, 685, 187 S.E.2d 172, 174 (1972); Deaner, 210 Va. at 293, 

170 S.E.2d at 204. In another case, we held it was not 

reasonable to refuse a blood analysis solely because counsel 

advised the defendant against taking the test. Bailey v. 

Commonwealth, 215 Va. 130, 131, 207 S.E.2d 828, 829 (1974). 

There, the Court reiterated "there must be some reasonable 

factual basis for the refusal, for example, endangerment of the 

health of the accused by the withdrawal of blood." Id., 207 

S.E.2d at 829. 

 Interpreting the implied consent law, our Court of Appeals 

has held "that a driver's subjective belief that he was not under 

the influence of alcohol is not a reasonable basis for refusing 
- 5 - 

the test, nor is the fact that he could and did operate his 

vehicle in a proficient manner. Thus, evidence of his state of 

sobriety or proficiency in operating the vehicle is not 

admissible in a case involving refusal to take a blood or breath 

test." Quinn v. Commonwealth, 9 Va. App. 321, 324, 388 S.E.2d 

268, 270 (1990). 

 Against this background, we examine defendant's proffer, 

submitted to the trial court by an informal oral statement of 

counsel, to determine whether any of the proffered evidence 

should have been admitted. 

 According to counsel, defendant's evidence "would be" that 

she and her husband "went to a place . . . in Buena Vista . . . 

shortly before eleven o'clock that evening [and] that they'd had 

nothing to drink before that." While at the "place," they 

consumed "less than one beer . . . and at eleven-thirty [when] 

the last call was made. . . , there was one pitcher served at the 

table." Three persons "were at that table and each had less than 

one mug." Two witnesses would testify that defendant "was not 

under the influence, in any way." 

 When defendant and her husband left "the place" in a car, 

"there was no erratic operation of the vehicle" by defendant. 

The police stopped the vehicle on a city street although 

defendant was "sober" and "she had done absolutely nothing to 

justify the police to stop her." After the stop, the couple was 

"treated abusively" by the arresting officer, and both were 
- 6 - 

"ordered to take field sobriety tests." Defendant "did well" on 

the test. 

 Following defendant's refusal to take a blood or breath 

test, as the officer was taking defendant to a magistrate, she 

"kept telling the officer" that she wished to consult counsel; 

the officer made no response to the request. She told the 

officer and the magistrate "she was concerned that she was being 

framed," that any test "would be manipulated, and she wanted to 

consult counsel to see what she could do to protect her interest 

from being framed." 

 Defendant's perception she was being "framed" stemmed from a 

separate criminal case in which she was not a party. She was 

scheduled to testify later in the day of her arrest in a criminal 

matter pending on a post-trial motion regarding juror misconduct. 

 Defendant "believed" the police "were trying to harass her and 

frame her . . . as punishment for her having volunteered to the 

defense in that case that she had information regarding the 

misconduct and bias of the jury." Defendant, a school bus 

driver, also proffered evidence of events relating to her job 

occurring later in the day of her arrest, which she asserted 

corroborated her "framing" charge. 

 Responding to defendant's "framing" allegation, the 

prosecutor represented to the trial court he was prepared to 

establish that the officers who were involved in defendant's 

arrest had no knowledge at the time that defendant was to be a 
- 7 - 

witness, or otherwise involved, in any court proceeding. 

 On appeal, defendant assigns error to the trial court's 

granting of the prosecutor's pretrial motion prohibiting her 

"from introducing evidence of her fear of being framed and 

excluding any evidence of the reason the police stopped her." In 

support of that assignment of error, defendant argues that the 

"reasonable fear of entrapment by the police coupled with the 

denial of an opportunity to consult counsel constitutes a factual 

basis for a reasonable refusal to submit to a blood or breath 

test." Additionally, she argues the Commonwealth had to prove 

the reasonableness of the stop at the time of arrest for DUI to 

support the charge of unreasonable refusal to submit to the 

testing. We do not agree. 

 The precedent established in the cases we have just 

discussed dictates the result in the present case. Manifestly, 

the evidence about defendant's sobriety, about her driving 

proficiency, and about her subjective belief that she was not 

under the influence of alcohol, while admissible in the DUI 

trial, was utterly inadmissible in the refusal trial. 

 Moreover, her desire to consult counsel "to see what she 

could do to protect her interest from being framed" furnishes no 

legal basis for refusal to submit to testing. As the trial judge 

observed, this contention "just puts a different spin" on the 

facts in Deaner and its progeny. 

 By operating a motor vehicle on the highways of the 
- 8 - 

Commonwealth the night in question, defendant consented, as a 

condition of that operation, to have tests made to determine the 

alcohol content of her blood. 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. Walton

v. City of Roanoke, 204 Va. 678, 683, 133 S.E.2d 315, 319 (1963). 

 The defendant may not unilaterally abrogate that agreement 

or withdraw that consent by refusing the test unless there is a 

reasonable basis for the refusal. A fear of being "framed" is 

not such a basis; it is not "reasonable" in the sense that 

evidence of endangerment of the health of the accused by 

withdrawal of blood furnishes a "reasonable" basis for refusal. 

That type of evidence should have been offered in the trial of 

the DUI charge because it may relate to the question whether the 

police officer's stop of the accused was lawful; certainly such 

evidence is not probative in the trial of the refusal charge. 

 We note, however, that we are not presented in this case 

with the effect on the refusal charge of a dismissal of the DUI 

charge on constitutional grounds. There is nothing in this 

record to suggest that the DUI charge was dismissed because 

defendant's constitutional rights were violated, and we will not 

presume such was the case in order to address that issue. 

 Consequently, we hold that the trial court correctly refused 

to permit defendant to present the proffered evidence. And, we 
- 9 - 

reject other errors assigned by defendant dealing with the 

sufficiency of the evidence to prove the refusal charge and with 

denial of an instruction she offered. 

 Thus, the judgment of conviction will be 

Affirmed.