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After administering an AlkaSensor to Mr. Marsh at 1:18 a.m., Trooper Baines said he advised him of his Miranda rights, the Virginia implied consent law, and placed him under arrest.
Trooper Baines said he then left Deputy Jeff Brown at the scene until a wrecker arrived and took Mr. Marsh to the Courthouse for a Breathalyzer test.
Mr. Fletcher then objected to the admission of the breath test into evidence, saying that the Commonwealth had produced no evidence as to the time the accident occurred. He reminded Judge Charles Foley that the law requires that the arrest be made within two hours of the accident.
Commonwealth’s Attorney Peter Luke then argued that the circumstantial evidence in the case pointed to Mr. Marsh having driven his vehicle sometime between 11:18 p.m. and 1:18 a.m., “when the clock stopped. It is reasonable to infer that driving occurred within two hours — that would make the breath certificate admissible.”
“This is a point raised often in single-vehicle accidents. It is a difficult burden of proof for the Commonwealth. The Commonwealth
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