Virginia Law on Refusal of Breath Test Following DWI / DUI Arrest

Unreasonable refusal to take a breath test following an arrest for DUI or DWI is punished under Virginia’s Implied Consent Law. After a driver is arrested for drunk driving, the driver is required to submit to a breath test.

Va Code § 18.2-268.3(A): “It shall be unlawful for a person who is arrested for a violation of § 18.2-266 … to unreasonably refuse to have samples of his blood or breath or both blood and breath taken for chemical tests to determine the alcohol or drug content of his blood … and any person who so unreasonably refuses is guilty of a violation of this section.” A first-offense refusal charge is a civil infraction. A second or subsequent offense is a misdemeanor.

Virginia law only punishes unreasonable refusal. Your criminal defense lawyer can introduce evidence of a “reasonable factual basis” for the refusal to take the breath test.


Virginia Penalties for Refusal to Submit to Breath Test

Description of OffenseClassification of OffenseMaximum ImprisonmentSuspension of LicenseMaximum Fine
1st Offense RefusalCivil InfractionN/A12 MonthsN/A
Refusal after 1 prior DUI convictionClass 2 Misdemeanor6 Months36 Months$500.00 Fine
Refusal after 2 prior DUI convictionsClass 1 Misdemeanor12 Months36 Months$2,500.00 Fine

A driver who unreasonably refuses to have breath samples taken for chemical tests to determine the alcohol content of blood is guilty of a civil offense for a first violation, punished by statutory suspension of the privilege to drive for a period of 12 months. A second or subsequent refusal within 10 years before the date of the refusal is elevated to a Class 1 misdemeanor with a mandatory three-year driver’s license suspension. These license suspension periods run consecutively, not concurrently, with the DUI charge penalties.

Virginia Case Law on Unreasonable Refusal

Examples of instances where refusal was found unreasonable and 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
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