VIRGINIA FREEDOM OF INFORMATION ACT. MOTOR VEHICLES. DRIVING UNDER INFLUENCE. BREATH ANALYSES EXEMPT FROM MANDATORY DISCLOSURE WHEN USE RESTRICTED TO PRELIMINARY DETERMINATION TO CHARGE SUSPECTED VIOLATORS.

January 23, 1981

The Honorable Glenn L. Berger
Commonwealth's Attorney for the County of Pittsylvania

80-81 391

You ask two questions about whether §2.1-342(b)(1) of the Code of Virginia (1950), as amended, exempts from the Virginia Freedom of Information Act (Ch. 21 of Title 2.1) certain official records containing the results of breath analyses under §18.2-267.

When Use Restricted to Preliminary Determination to Charge Suspected Violators

You ask first whether the official forms used to record the results of breath analyses are excluded under §2.1-342(b)(1) when their use is restricted to the preliminary determination to charge suspected violators.^l Section 18.2-267(d) provides that whenever a breath sample indicates that there is alcohol present in the blood, the police officer, who stopped the person from whom the breath was taken, may charge such person for violation of §18.2-266, or a similar local ordinance. Under §18.2-270, any person violating any provision of §18.2-266 shall be guilty of a Class 2 misdemeanor.

Section 2.1-342(b)(1) provides that memoranda, correspondence, evidence and complaints related to criminal investigations are excluded from the provisions of the Virginia Freedom of Information Act. Section 18.2-267(e) provides that the breath analysis shall not be admitted in any prosecution under §18.2-266, the purpose of the section being to permit a preliminary analysis of the alcoholic content of the blood of a person suspected of having violated §18.2-266. Under the terms of §18.2-267(e), there is no question that breath analysis forms are initially memoranda related to criminal investigations.

Accordingly, I am of the opinion that official forms used to record the results of breath analyses, under §18.2-267, are excluded from the Virginia Freedom of Information Act when their use is restricted to the preliminary determination to charge suspected violators.

When Breath Analysis Results Made Part of Arrest Warrant

Your second question is whether records containing breath analysis results are excluded under §2.1-342(b)(1) when they are made part of arrest warrants, by attachment of the official forms to the warrant, or by attachment of an affidavit containing the same information. This Office has previously held that actual executed arrest warrants held in a law-enforcement office, or copies thereof, are not exempt under §2.1-342(b)(1). See Opinion to the Honorable James T. Edmunds, Member, Senate of Virginia, dated July 21, 1975, found in Report of the Attorney General (1975-1976) at 418. To the extent that the breath analysis forms, or affidavits containing the same information, are made part of actual executed arrest warrants, the forms and affidavits are not exempt under §2.1-342(b)(1).

Unexecuted arrest warrants and attached papers, however remain memoranda relating to criminal investigations under §2.1-342(b)(1). This is true, whether the attached papers are official forms containing breath analysis results, or affidavits containing the same information. See, also, §15.1-135.1 and Opinion to the Honorable James A Cales, Jr., Commonwealth's Attorney for the City of Portsmouth, dated March 2, 1976, found in Report of the Attorney General (1975-1976) at 284. Accordingly, I am of the opinion that arrest warrants and attached papers containing breath analysis results are exempt under §2.1-342(b)(1) until executed, and not exempt once executed.

__________________

Footnotes:

1. The status of an official record can vary, depending upon its use. See Opinion to the Honorable S. R. Royall, Sheriff of Nottoway County, dated August 19, 1976, found in Report of the Attorney General (1976-1977) at 250. I offer no opinion about the desirability of attaching official forms containing breath analysis results to the arrest warrant, or placing the same information in an affidavit attached to the arrest warrant. Rule 3A: 3 (The Complaint) of the Supreme Court's Rules of Criminal Practice and Procedure requires only that the complaint shall consist of sworn statements of facts relating to the commission of an alleged offense. Rule 3A: 4(a) (Arrest Warrant or Summons) provides that if it appears from the complaint there is probable cause to believe the accused has committed an offense, the magistrate shall issue a warrant for his arrest. Section 18.2-267 authorizes arrest whenever the breath analysis indicates the presence of alcohol in the blood. Section 18.2-267(d) does not require an indication as to any specific amount of alcohol.