Virginia Sobriety Checkpoints: Lawful but Unlegislated

The negative here is provable rather than assumed. A full-text search across the Code of Virginia titles that would carry such a power, including Title 18.2 (Crimes and Offenses Generally), Title 19.2 (Criminal Procedure), Title 46.2 (Motor Vehicles), Title 52 (Police), Title 9.1 (Commonwealth Public Safety) and Title 15.2 (Counties, Cities and Towns), returns the word "checkpoint" three times in total. Two of those three are about boats. Va. Code § 19.2-10.3, enacted in 2015, forbids an officer from stopping, boarding or inspecting a noncommercial vessel on navigable waters without reasonable suspicion, and then expressly preserves "lawful boating safety checkpoints conducted by conservation police officers and Virginia Marine Police in accordance with established agency policy." A parallel provision sits in Title 29.1. The third and only road-going mention is the DMV counting duty in § 46.2-223.1. The General Assembly plainly knows how to write a checkpoint carve-out when it wants one, and it has done so only for the water.

What Va. Code § 46.2-223.1 does create is an accountability record. Enacted in 2023 by chapters 660 and 661, it requires DMV to collect impaired-driving data annually on a calendar-year basis and empowers it to request that data from any state agency or political subdivision, from any criminal justice agency as defined in § 9.1-101, and from the clerk of each circuit court, with the Executive Secretary of the Supreme Court arranging transfers from the statewide Circuit Court Case Management System. Subdivision B 12 is the checkpoint line. The surrounding subdivisions require counts of alcohol- and drug-involved crashes, injuries and fatalities, blood alcohol content and drugs found by the Office of the Chief Medical Examiner in each decedent driver, sworn officer strength by agency, arrests and convictions under §§ 18.2-266, 18.2-266.1, 18.2-268.3 and the related commercial-driver offenses, referrals to and supervision by the Virginia Alcohol Safety Action Program, ignition interlock and remote alcohol monitoring installations, breath tests and average results from the Department of Forensic Science, and every NHTSA grant dollar awarded to Virginia and to each agency.

Subsection C sets the publication rule. DMV must submit the annual report on or before October 1 to the General Assembly, the Governor and the Virginia State Crime Commission, and must also make it available to the public on the Department's website. The data is reported statewide by calendar year across at least a five-year span and, to the extent possible, broken out by locality and by law-enforcement agency. Subsection D limits the burden: no agency or clerk has to supply data it does not regularly maintain or that another law or the Virginia Rules of Professional Conduct bars it from disclosing. If you want to know how many checkpoints your city or county ran last year, that report is where Virginia law puts the number.

The power to make you stop at a checkpoint is ordinary traffic law. Va. Code § 46.2-104 requires the owner or operator of a vehicle to stop on the signal of any officer in uniform or showing a badge and, on request, to exhibit the registration card and driver's license and write his name in the officer's presence for the purpose of establishing identity. Driving on in willful and wanton disregard of a visible or audible signal is a Class 2 misdemeanor under Va. Code § 46.2-817, rising to a Class 6 felony where it interferes with or endangers the law-enforcement vehicle or a person, with a court-ordered license suspension of thirty days to one year.

Breath and blood testing does not begin at the checkpoint. Va. Code § 18.2-268.2 deems every driver on a Virginia highway to have consented to samples of blood, breath or both, but only "if he is arrested for violation of § 18.2-266, 18.2-266.1, or subsection B of § 18.2-272 or of a similar ordinance within three hours of the alleged offense." A preliminary roadside breath test at the checkpoint is therefore not the implied-consent test. Refusal after arrest is governed by § 18.2-268.3: an unreasonable refusal of the breath test is a civil offense on a first violation carrying a one-year court-ordered license suspension, and a Class 1 misdemeanor with a three-year revocation where the driver was found guilty of refusal or of § 18.2-266 within the preceding ten years. Refusal of a blood test is a civil offense on the same suspension schedule. The arresting officer must read a form provided by the Office of the Executive Secretary of the Supreme Court, then certify the refusal under oath before a magistrate, and that sworn certification is what supplies probable cause for the refusal charge. A first-offense defendant may petition thirty days after conviction for a restricted license, which the court may grant for good cause with an ignition interlock condition and a VASAP fee of no less than $250 and no more than $300, reducible or waivable on a finding of indigency.

One Virginia feature that does not help at a checkpoint is the 2020 pretextual-stop package. Sections such as Va. Code §§ 46.2-1003, 46.2-1052 and 46.2-1094 bar an officer from stopping a vehicle for defective equipment, window tint or a seat belt violation, but each is written as a bar on stopping a vehicle for a violation of that section. A checkpoint stop is not made for a violation of any of them, so those bars do not reach it. Va. Code § 4.1-1302 does still apply once you are stopped: the odor of marijuana alone cannot support a search, a seizure or a warrant, and evidence that follows is inadmissible even if you consented.

Refusing to stop at a Virginia checkpoint is charged under Va. 2-11(b) by up to six months in jail and a fine of up to $1,000, and becomes a Class 6 felony where the driving interferes with or endangers the law-enforcement vehicle or any person. Either conviction carries a court-ordered license suspension of not less than thirty days nor more than one year, extended to at least ninety days where the driver's speed exceeded the maximum by more than twenty miles per hour. 2. 2-104, curable by producing the document to the court.

1(C) puts the annual counts in front of the General Assembly, the Governor and the Virginia State Crime Commission, and on the DMV website, broken out by locality and agency to the extent possible.