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 OffenseClassification of OffenseMaximum ImprisonmentSuspension of LicenseMaximum Fine
1st Offense RefusalCitationN/A12 MonthsN/A
2nd Offense RefusalClass 1 Misdemeanor12 Months36 Months$2,500.00 Fine
Second DWI in 5 Years REDUCED in Fairfax VA

FAIRFAX VIRGINIA DWI Lawyer Case Result: The client was charged with a DWI Second Offense in Fairfax County just one month after completing probation for his first DUI offense. His attorney successfully negotiated an amendment to his DWI 2nd offense charge to a 1st offense, with only a weekend of [...]

Read More
Fairfax Virginia DUI Charge DISMISSED

FAIRFAX, VIRGINIA DWI ATTORNEY CASE RESULT: A drunk driving arrest in Fairfax, Virginia under Va Law 18.2-266, with a BAC of .13, was DISMISSED as a matter of law. The client walked away with no DUI penalties. A related Reckless Driving charge resulted in a Guilty plea and was penalized [...]

Read More
Multi-vehicle Collision DWI in Alexandria Virginia Results in REDUCED Penalties

ALEXANDRIA, VA DWI ATTORNEY CASE RESULT: A vehicle collision in Alexandria, VA, where the driver was accused of striking multiple parked cars, charged under Va Law 18.2-266, was REDUCED from an enhanced-penalty DUI with BAC at or above .15 to a regular DWI, sentenced to 3 days in jail, the [...]

Read More
Alexandria VA Misdemeanor DWI Arrest REDUCED to Reckless Driving, No Jail

ALEXANDRIA, VA DWI DEFENSE LAWYER CASE RESULT: Alexandria, Virginia vehicle collision that resulted in a DWI arrest under Va Law 18.2-266 was REDUCED and amended to a lesser charge of Reckless Driving. The amended charge was penalized by a high fine and alcohol classes. NO JAIL time and no license [...]

Read More
Federal Pentagon DUI DWI Charges REDUCED to Reckless Driving, No Jail

ALEXANDRIA, VIRGINIA FEDERAL DUI DWI DEFENSE ATTORNEY CASE RESULT: Federal misdemeanor charges for DUI / DWI on the Pentagon Reservation in Arlington, Virginia, under 32 CFR 234.17, resulted in reduction of the DUI to Reckless Driving, and dismissal of all other charges. The reduced charge resulted in 6 months of [...]

Read More
4th Offense DUI w/ Mandatory Minimum Penalty 1 Year in Jail REDUCED

FAIRFAX, VIRGINIA DWI ATTORNEY CASE RESULT: 4th Offense DUI charge under Va Law 18.2-266, after prior Felony DUI conviction, resulted in an amendment and reduction of mandatory minimum jail time of one year. Under Virginia law, a  person convicted of a DUI after previously having been convicted of either a felony [...]

Read More
Possession of Schedule I/II Cocaine and Heroin – DISMISSAL OF CHARGES in Arlington Virginia

ARLINGTON, VIRGINIA CRIMINAL DEFENSE ATTORNEY CASE RESULT: Felony charges for Possession of Schedule I/II substances, Cocaine and Heroin, while also driving under the influence, resulted in a dismissal of one drug charge at the preliminary hearing and a reduction of the second drug charge to a misdemeanor with expected dismissal as [...]

Read More
Alexandria Virginia DUI Charge 18.2-266 REDUCED to Reckless Driving – NO JAIL, No License Suspension

ALEXANDRIA, VIRGINIA DUI DEFENSE ATTORNEY CASE RESULT: Old Town Alexandria vehicle collision that resulted in a DUI arrest under Va Law 18.2-266 was REDUCED and amended to a charge of Reckless Driving. The amended charge was penalized by a high fine. NO JAIL time, no Alcohol classes, no license suspension. [...]

Read More
Fairfax Virginia DWI Charge 18.2-266 DROPPED For Insufficient Evidence

FAIRFAX, VIRGINIA DWI ATTORNEY CASE RESULT: DWI arrest in Fairfax, Virginia, charged under Va Code 18.2-266, was DROPPED (not prosecuted) for insufficient evidence. Client pled No Contest to a related non-criminal Refusal citation. Read more about Fairfax criminal defense attorney Marina Medvin, who represented this client and achieved this result. [...]

Read More
DUI Arrest After Serious Collision and BAC .24 – Charge REDUCED to Reckless Driving, No Jail

FAIRFAX, VIRGINIA DUI ATTORNEY CASE RESULT: DUI arrest in Fairfax, following a serious collision with injuries and a with a BAC of .24 (10 days of mandatory minimum jail time required, as charged), was REDUCED and AMENDED to Reckless Driving with NO JAIL TIME, just a 6 month restricted license [...]

Read More
Fairfax VA Drunk Driving Arrest BAC .19 REDUCED, No Jail Time

FAIRFAX, VIRGINIA DUI ATTORNEY CASE RESULT: Drunk driving arrest under Va Law 18.2-266 in Fairfax with a BAC of .19 (5 days of mandatory minimum jail time required, as charged) was REDUCED to a .08 DUI and penalized at minimum first offense penalties, NO JAIL TIME. Read more about Fairfax [...]

Read More
Virginia DWI Arrest Following Collision, BAC .17, Charge REDUCED – NO JAIL

FAIRFAX, VIRGINIA DWI ATTORNEY CASE RESULT: DWI arrest after a collision, BAC of .17 (5 days of mandatory minimum jail time required, as charged) was REDUCED to a .08, and penalized minimum first offense penalties, NO JAIL TIME. Read more about Fairfax criminal defense attorney Marina Medvin, who represented this [...]

Read More
Misdemeanor DUI Charge Following Serious Collision, BAC .20, REDUCED – NO JAIL

ALEXANDRIA, VIRGINIA DUI ATTORNEY CASE RESULT: Serious vehicle collision with a BAC of .20, resulting in a DUI arrest under Va Law 18.2-266 (with a required mandatory minimum jail penalty if convicted as charged) was REDUCED to a standard first offense DUI at a .08 and NO JAIL time. Alexandria [...]

Read More
Fairfax Virginia Manslaughter Charges DISMISSED

FAIRFAX, VIRGINIA CRIMINAL DEFENSE ATTORNEY CASE RESULT: Client was charged with Involuntary Manslaughter under Va Code § 18.2-36.1 (penalty maximum – 10 years in prison) for allegedly driving drunk and causing a collision which resulted in the death of the other driver (initially charged as DUI after the collision, with charges later [...]

Read More
Virginia DWI Arrest After Collision, BAC .29, Results in REDUCTION and NO JAIL

ALEXANDRIA, VIRGINIA DWI ATTORNEY CASE RESULT: Second DWI arrest, this time after a collision with multiple vehicles and a BAC .29, a class 1 misdemeanor under Va Law 18.2-266 (carrying a significant mandatory minimum jail penalty), was REDUCED to a standard first offense DUI at a .08, resulting in no [...]

Read More
Alexandria VA DUI 2nd Offense, BAC .25 Charge REDUCED – NO JAIL TIME

ALEXANDRIA, VIRGINIA DUI ATTORNEY CASE RESULT: 2nd DUI arrest within 5 years of the first, and a BAC level of .25, under Va Laws 18.2-266 and 18.2-270 produce a mandatory minimum jail penalty of 40 days. Defense prevailed on issues of proving a prior DWI offense and the BAC level, [...]

Read More
NOT GUILTY – 1st Offense DUI with BAC .16 in Fairfax, Virginia

CITY OF FAIRFAX, VIRGINIA DUI ATTORNEY CASE RESULT: NOT GUILTY verdict at trial for a DUI arrest, Va Law 18.2-266, with a BAC of .16 (which would have resulted in a mandatory minimum 5-day jail sentence if the client was found guilty). Va Law § 18.2-266. Driving motor vehicle, engine, [...]

Read More
NOT GUILTY 2nd Offense Refusal to Submit to Alcohol Breath Test After DUI Arrest

FAIRFAX, VIRGINIA CRIMINAL DEFENSE ATTORNEY CASE RESULT: NOT GUILTY verdict at trial for a second offense Refusal charge for refusing to submit to alcohol breath testing in Fairfax County, VA, after client’s arrest for DUI and collision with a Fairfax County Police Officer. Client was also found NOT GUILTY of [...]

Read More
First Offense DWI w/ .15 BAC REDUCED, NO JAIL TIME

FAIRFAX, VIRGINIA DWI ATTORNEY CASE RESULT: First offense DWI charge with BAC of .15 (5 days of mandatory minimum jail time required, as charged) was reduced to a .08 DWI and penalized with probation and other mandatory first offense penalties, NO JAIL TIME. Read more about Fairfax criminal defense attorney [...]

Read More
DUI 2nd Offense REDUCED to DUI 1st | Arlington, VA

ARLINGTON, VIRGINIA DUI ATTORNEY CASE RESULT: Second DUI offense within 5 years of the first, punishable by a mandatory minimum period of 20 days, was REDUCED to a First Offense with only one weekend in jail. Read more about Arlington criminal defense attorney Marina Medvin, who represented this client and [...]

Read More
NOT GUILTY of DUI 2nd Offense with BAC .16 and Collision with Police Officer

FAIRFAX, VIRGINIA DUI ATTORNEY CASE RESULT: NOT GUILTY verdict at trial for a second offense DUI charge in Fairfax County, VA, under Virginia Law 18.2-266, with a blood alcohol content of .16, which mandates a minimum 20-day jail sentence if convicted of the DUI as charged, plus more jail time [...]

Read More
NOT GUILTY of DWI in Arlington Virginia

ARLINGTON, VIRGINIA DWI ATTORNEY CASE RESULT: NOT GUILTY verdict at trial for a first offense DWI charge in Arlington County, VA for an accusation under Virginia Law 18.2-266 for suspicion of drunk driving after police responded to a collision. Related Refusal citation resulted in a conviction and suspension of driving [...]

Read More
First Offense DUI With .19 BAC REDUCED, No Jail Time

FAIRFAX, VIRGINIA DUI ATTORNEY CASE RESULT: A first offense DUI charge in Fairfax County, VA, under Virginia Law 18.2-266, with a blood alcohol content of .19, which mandates a minimum 5-day jail sentence if convicted of the DUI as charged (plus more time for the collision while DUI), resulted in [...]

Read More
Virginia First Offense DUI With .16 BAC REDUCED

ARLINGTON, VIRGINIA DUI ATTORNEY CASE RESULT: A first offense DUI charge in Arlington, VA, under Virginia Law 18.2-266, with a blood alcohol content of .16, which mandates a minimum 5-day jail sentence if convicted of the DUI as charged (plus more time for the collision while DUI), resulted in a [...]

Read More
Federal DUI at Pentagon DISMISSED for Insufficient Evidence

ALEXANDRIA, VIRGINIA FEDERAL DEFENSE ATTORNEY CASE RESULT: Federal misdemeanor charge for DUI on the Pentagon in Arlington, Virginia, under 32 CFR 234.17, resulted in DISMISSAL of the DUI charge for insufficient evidence. A related Refusal to Submit to Breath Test charge resulted in probationary driving restrictions and an alcohol class. [...]

Read More
4th DUI Results in DUI 1st Plea Deal & Only 5 Days in Jail

ALEXANDRIA, VIRGINIA 4th DUI arrest under Va DUI Law 18.2-266, which can be charged as a felony, instead resulted in a plea deal on a misdemeanor DUI charge as a 1st offense with a penalty of only 5 days in jail (a mandatory minimum penalty for a BAC level greater [...]

Read More
Federal DUI BAC .21 Resulted in Only 3 Days Home Confinement

ALEXANDRIA, VIRGINIA Federal misdemeanor DWI and DUI charges for drunk driving at the CIA resulted in DISMISSAL of the DWI charge and reduction of the mandatory minimum 10-day jail sentence required for a BAC level of .21 to only 3 days of come confinement after a presentation of defense attorney [...]

Read More
Pentagon DUI / DWI, Driving on Suspended License Results in DISMISSAL

ALEXANDRIA, VIRGINIA FEDERAL UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT: Federal misdemeanor charges for DWI and DUI and associated misdemeanor charges at the Pentagon Reservation in Virginia under 32 CFR 234.17 resulted in DISMISSAL of the DWI charge, the Refusal to Submit to Breath Test, and the Driving on [...]

Read More
Alexandria Virginia DWI 18.2-266 REDUCED to Reckless Driving

ALEXANDRIA, VAMisdemeanor DWI charge in the City of Alexandria under Va Code 18.2-266 after a 4-vehicle collision on I395 resulted in an AMENDMENT and REDUCTION of the charge to Reckless Driving, with an agreed-upon penalty of a fine, 6 months of license suspension, and alcohol classes. NO JAIL TIME, no [...]

Read More
DWI in Arlington Virginia BAC .18 REDUCED to Reckless Driving, No Jail Time

ARLINGTON, VIRGINIA DWI charge in Arlington, VA under Virginia Law 18.2-266, with a blood alcohol content of .18, requiring mandatory minimum 5 day jail time if convicted of the DWI as charged (plus more time for the collision while DWI), resulted in a REDUCED and AMENDED charge to Reckless Driving, [...]

Read More

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.


Refusal & DUI / DWI Attorney Consultation Call 888-886-4127
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.

Click to Review All DUI / DWI Case Results


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

 

Best Lawyers in Virginia - Criminal Defense and DUI Law