Virginia Refusal of Breath Test or Blood Test Following DWI / DUI Arrest
Under Virginia’s Implied Consent Law, after a driver is arrested for drunk driving, the driver is required to submit to a blood or breath test. Va Law 18.2-268.2 The implied consent arises by virtue of the act of driving on a Virginia highway. The statutory consent law requires the driver to be arrested within 3 hours of the offense for that driver can be required to submit to a breath or blood test and before penalties for unreasonably refusing to do so may be imposed.
Virginia law 18.2-268.3 only punishes “unreasonable” refusals. In his defense, a driver can introduce a “reasonable factual basis” for the refusal to take the chemical test.
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 Penalties for Refusal to Submit to Breath Test
| Description of Offense | Classification of Offense | Maximum Imprisonment | Suspension of License | Maximum Fine |
|---|---|---|---|---|
| 1st Offense Refusal | Citation | N/A | 12 Months | N/A |
| 2nd Offense Refusal | Class 1 Misdemeanor | 12 Months | 36 Months | $2,500.00 Fine |
Virginia law has something known as implied consent driving law. This means that you consent to your blood or breath being tested if you are legally arrested for a DUI in Virginia. Virginia punishes refusals to take the tests under Virginia VA Code Section 18.2-268.3 as “unreasonable refusal” to have samples of his blood or breath taken for chemical tests to determine the alcohol or drug content of your blood after a drunk driving arrest as required by Virginia VA Code Section 18.2-268.2. The term “unreasonable” here is really insignificant since almost all refusals are deemed unreasonable. Nonetheless, many arrests are demeaned illegal, and thus the breath sample or subsequent refusal charge becomes invalid.
The implied consent law of post-arrest testing to determine drug or alcohol content of blood is codified in Virginia VA Code Section 18.2-268.2. This law imposes on all drivers passing through Virginia the burden of having to submit to blood or breath analysis upon arrest for DUI, as long as the blood or breath test is offered within 3 hours of the arrest for the drunk driving offense. This consent law is considered a condition of operating your vehicle in Virginia.
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This article is written by top rated Virginia DUI / DWI defense attorney Marina Medvin – law offices in Alexandria and in Fairfax. She successfully represents individuals charged with DUI / DWI arrests in Alexandria, Arlington, Fairfax, Vienna and Falls Church. In addition to her Juris Doctorate degree, Ms. Medvin has a Bachelor of Science Honors Degree from Penn State, where she graduated in the Top 10% of her class. Both a legal and a science background is recommended for defense of DWI cases because of the scientific and chemical analysis of the Blood Alcohol Content. Please call for a consultation request.
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Your first refusal crime is considered a civil offense, and not a criminal one under Virginia VA Code 18.2-268.3. However, the penalty is steep. The refusal charge on its own carries a 1 year driver’s license suspension. If, however, you have had a DUI conviction or another refusal conviction in the 10 years prior to your refusal, then the refusal is in fact a crime – a Class 2 misdemeanor, punished by up to 6 months in jail and a $1,000.00 fine. If you had 2 previous convictions for either DUI or refusal, then the refusal will be punished as a Class 1 misdemeanor – with up to 1 year in jail and a $2,500.00 fine. Under new Supreme Court Case Law from 2016, Virginia’s criminalization of subsequent refusal may be illegal.
Supreme Court Case Studies for Refusal to Submit to a Breath or Blood Test After DWI Arrest
Bernard: challenged a legal prohibition against breathalyzer refusal. Because the Court held that the Fourth Amendment does not protect individuals against automatic breathalyzers as an incident to a DWI arrest, the Court said that the criminal prosecution of Bernard was legitimate.
Birchfield: police told him that he had to take a blood test or face criminal penalties, and he refused to take the blood tests and was criminally prosecuted for it. Consistent with its decision that blood tests may not be forced upon an arrestee without a warrant (or exigent circumstances), the Court held that Birchfield should not have been criminally prosecuted for his refusal.
Beylund: had been told that he had to submit to a blood test or else be criminally prosecuted for refusing to do so. As a result (at least in part) of this threat of criminal prosecution, Beylund agreed to the blood test, and the results were highly incriminating in his prosecution for DWI. In his case, the Supreme Court remanded for a determination of whether or not Beylund had provided a voluntary consent to the blood test, given the totality of the circumstances, which included his having been told inaccurate information about the consequences of refusing to take a blood test (namely, that he could be criminally prosecuted for it). The Court indicated that even if it were determined that he did not voluntarily consent to the blood test, it might or might not be the case that the evidence of his blood test should have been suppressed.
The smart decision on the part of a suspect who believes strongly that he has the right to refuse a BAC test would be to actually refuse the test. This way, if it turns out that he had the right to refuse, then he could not be punished for that refusal. If he instead gave in to the threat, as Beylund did, he might end up successfully prosecuted with evidence that he provided against himself.
Va Code § 18.2-268.3 Refusal of tests; penalties; procedures.
A. It shall be unlawful for a person who is arrested for a violation of § 18.2-266, 18.2-266.1, or subsection B of § 18.2-272 or of a similar ordinance 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 as required by § 18.2-268.2 and any person who so unreasonably refuses is guilty of a violation of this section.B. When a person is arrested for a violation of § 18.2-51.4, 18.2-266, 18.2-266.1 or, subsection B of § 18.2-272 or of a similar ordinance and such person refuses to permit blood or breath or both blood and breath samples to be taken for testing as required by § 18.2-268.2, the arresting officer shall advise the person, from a form provided by the Office of the Executive Secretary of the Supreme Court, that (i) a person who operates a motor vehicle upon a highway in the Commonwealth is deemed thereby, as a condition of such operation, to have consented to have samples of his blood and breath taken for chemical tests to determine the alcohol or drug content of his blood, (ii) a finding of unreasonable refusal to consent may be admitted as evidence at a criminal trial, (iii) the unreasonable refusal to do so constitutes grounds for the revocation of the privilege of operating a motor vehicle upon the highways of the Commonwealth, (iv) the criminal penalty for unreasonable refusal within 10 years of a prior conviction for driving while intoxicated or unreasonable refusal is a Class 2 misdemeanor, and (v) the criminal penalty for unreasonable refusal within 10 years of any two prior convictions for driving while intoxicated or unreasonable refusal is a Class 1 misdemeanor. The form from which the arresting officer shall advise the person arrested shall contain a brief statement of the law requiring the taking of blood or breath samples, a statement that a finding of unreasonable refusal to consent may be admitted as evidence at a criminal trial, and the penalties for refusal. The Office of the Executive Secretary of the Supreme Court shall make the form available on the Internet and the form shall be considered an official publication of the Commonwealth for the purposes of § 8.01-388.
C. The arresting officer shall, under oath before the magistrate, execute the form and certify, (i) that the defendant has refused to permit blood or breath or both blood and breath samples to be taken for testing; (ii) that the officer has read the portion of the form described in subsection B to the arrested person; (iii) that the arrested person, after having had the portion of the form described in subsection B read to him, has refused to permit such sample or samples to be taken; and (iv) how many, if any, violations of this section, § 18.2-266, or any offense described in subsection E of § 18.2-270 the arrested person has been convicted of within the last 10 years. Such sworn certification shall constitute probable cause for the magistrate to issue a warrant or summons charging the person with unreasonable refusal. The magistrate shall attach the executed and sworn advisement form to the warrant or summons. The warrant or summons for a first offense under this section shall be executed in the same manner as a criminal warrant or summons. If the person arrested has been taken to a medical facility for treatment or evaluation of his medical condition, the arresting officer may read the advisement form to the person at the medical facility, and issue, on the premises of the medical facility, a summons for a violation of this section in lieu of securing a warrant or summons from the magistrate. The magistrate or arresting officer, as the case may be, shall forward the executed advisement form and warrant or summons to the appropriate court.
D. A first violation of this section is a civil offense and subsequent violations are criminal offenses. For a first offense the court shall suspend the defendant’s privilege to drive for a period of one year. This suspension period is in addition to the suspension period provided under § 46.2-391.2.
If a person is found to have violated this section and within 10 years prior to the date of the refusal he was found guilty of any of the following: a violation of this section, a violation of § 18.2-266, or a violation of any offense listed in subsection E of § 18.2-270, arising out of separate occurrences or incidents, he is guilty of a Class 2 misdemeanor and the court shall suspend the defendant’s privilege to drive for a period of three years. This suspension period is in addition to the suspension period provided under § 46.2-391.2.
If a person is found guilty of a violation of this section and within 10 years prior to the date of the refusal he was found guilty of any two of the following: a violation of this section, a violation of § 18.2-266, or a violation of any offense listed in subsection E of § 18.2-270 arising out of separate occurrences or incidents, he is guilty of a Class 1 misdemeanor and the court shall suspend the defendant’s privilege to drive for a period of three years. This suspension period is in addition to the suspension period provided under § 46.2-391.2.
Read more about the new Supreme Court decision from 2016: Supreme Court Decision, CNN, Justia
