Virginia Law on Refusal of Breath or Blood Test – VA Code § 18.2-268.3
Under Virginia’s Implied Consent Law, it is unlawful to unreasonably refuse a breath or blood test after a lawful DUI or DWI arrest. Once a driver is validly placed under arrest for suspected drunk driving, the driver is legally required to submit to a breath or blood test to determine blood alcohol concentration (BAC).
A first-offense breath test refusal is classified as a civil violation and results in a 12-month driver’s license suspension. A second or subsequent breath test refusal within 10 years is a misdemeanor criminal offense, punishable by jail time, fines, and a 3-year loss of license. Refusal to submit to a blood test is a civil infraction, punished only by license suspension. Refusal license suspension periods run consecutively, not concurrently, with DUI or DWI suspension periods that may be independently imposed upon conviction for a DUI or DWI.
Virginia law only punishes unreasonable refusal VA Code § 18.2-268.3. Your criminal defense lawyer can introduce evidence of a “reasonable factual basis” for the refusal to take the breath test. A skilled defense attorney may be able to obtain an amendment of the charge or a dismissed. If you are facing a refusal charge, legal representation is critical to protecting your rights and driving privileges.
Penalty Table for VA Code § 18.2-268.3 Unreasonable Refusal of Breath or Blood Test
Test Type | Offense | Classification | License Suspension | Criminal Penalty |
|---|---|---|---|---|
Breath – 1st | Refusal | Civil Violation | 12-month suspension | None |
Breath – 2nd | Refusal within 10 years | Class 2 Misdemeanor | 3-year revocation | Up to 6 months in jail and $1,000 fine |
Breath – 3rd+ | Refusal within 10 years | Class 1 Misdemeanor | 3-year revocation | Up to 12 months in jail and $2,500 fine |
Blood – 1st | Refusal | Civil Violation | 12-month suspension | None |
Blood – 2nd+ | Refusal within 10 years | Civil Violation | 3-year revocation | None |
All Refusal license suspension periods run consecutively, not concurrently, with the DUI charge penalties.
Restricted Driver’s License After a First Offense Refusal Conviction
As a penalty for being convicted of Refusal, the court will have to suspended your license to operate a motor vehicle for a period of 12 months in addition to any suspension period independently ordered for a related DUI conviction, if that happens in your case.
Virginia permits people found guilty of a first offense Refusal charge to seek a restricted driver’s license 30 days after the date of conviction. The court may choose to grant the restricted license for good cause shown. The court, at its discretion and upon a showing of good cause, may grant a restricted license for specific purposes outlined in § 18.2-271.1(E), such as commuting to work, attending school, or receiving medical treatment.
If granted, the court must impose certain conditions:
• Installation of an ignition interlock device on all vehicles owned or registered to the individual, to be maintained for a period not less than six consecutive months without alcohol-related violations.
• Enrollment in and successful completion of an Alcohol Safety Action Program (VASAP), unless the court, based on an assessment, determines that intervention is not appropriate.
Defenses to Unreasonable Refusal Charges in Virginia
In Virginia, several defenses can be raised against refusal charges under the Implied Consent Law (§ 18.2-268.3). If the court finds that your refusal was reasonable or the implied consent law was not properly invoked, the refusal charge can be dismissed, and license suspension avoided.
One of the most common defenses is that the underlying DUI arrest was unlawful. The implied consent statute only applies if the arrest was supported by probable cause. If the officer did not have sufficient legal justification to arrest the driver for DUI, the statutory obligation to submit to testing does not apply, and the refusal charge may be dismissed.
Another key defense involves whether the officer properly advised the driver of their rights and the consequences of refusing the test. Virginia law requires officers to inform individuals that refusal may result in license suspension and potential criminal penalties for repeat offenses. If this advisement was unclear, incomplete, or not given at all, the refusal may not be enforceable.
A refusal may also be considered reasonable if the individual had a legitimate medical or physical condition that made it difficult or impossible to complete the test. Conditions such as asthma, severe anxiety, or physical disabilities may interfere with the ability to provide a breath sample, and courts may view refusals under these circumstances as justified.
Procedural errors by law enforcement can also invalidate a refusal charge. If the officer failed to follow required protocols, used improperly calibrated or uncertified equipment, or attempted to conduct the test outside of the three-hour window mandated by § 18.2-268.2, these issues can provide grounds for dismissal.
In some situations, what appears to be a refusal is not actually one. A delayed response or hesitation is not always considered a legal refusal, especially if the person eventually agrees to testing. Simply asking questions or expressing uncertainty does not automatically constitute a refusal.
Finally, a person cannot be held accountable for refusal if they were physically unable to respond due to unconsciousness or serious injury.
When successfully argued by a competent defense attorney, these defenses can lead to the refusal charge being dropped, preserving the individual’s driving privileges and avoiding additional penalties.
Cases of Unreasonable Refusal
Examples of instances where refusal was found unreasonable and therefor in violation of Virginia law by the higher courts of Virginia include:
- a belief that the test is unnecessary
- a fear that police will tamper with the test results
- unwillingness to take the test without legal counsel
- advice from counsel against taking such a test
- the belief that the test would not establish proof of alcohol consumption before a collision
- blowing insufficient sample without reasonable excuse
