18.2-268.3 - Refusal of tests; penalties; procedures. - Virginia Statutes

§ 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 ordinanceto unreasonably refuse to have samples of his blood or breath or both bloodand breath taken for chemical tests to determine the alcohol or drug contentof his blood as required by § 18.2-268.2 and any person who so unreasonablyrefuses 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 suchperson refuses to permit blood or breath or both blood and breath samples tobe taken for testing as required by § 18.2-268.2, the arresting officer shalladvise the person, from a form provided by the Office of the ExecutiveSecretary of the Supreme Court, that (i) a person who operates a motorvehicle upon a highway in the Commonwealth is deemed thereby, as a conditionof such operation, to have consented to have samples of his blood and breathtaken for chemical tests to determine the alcohol or drug content of hisblood, (ii) a finding of unreasonable refusal to consent may be admitted asevidence at a criminal trial, (iii) the unreasonable refusal to do soconstitutes grounds for the revocation of the privilege of operating a motorvehicle upon the highways of the Commonwealth, (iv) the criminal penalty forunreasonable refusal within 10 years of a prior conviction for driving whileintoxicated or unreasonable refusal is a Class 2 misdemeanor, and (v) thecriminal penalty for unreasonable refusal within 10 years of any two priorconvictions for driving while intoxicated or unreasonable refusal is a Class1 misdemeanor. The form from which the arresting officer shall advise theperson arrested shall contain a brief statement of the law requiring thetaking of blood or breath samples, a statement that a finding of unreasonablerefusal to consent may be admitted as evidence at a criminal trial, and thepenalties for refusal. The Office of the Executive Secretary of the SupremeCourt shall make the form available on the Internet and the form shall beconsidered an official publication of the Commonwealth for the purposes of §8.01-388.

C. The arresting officer shall, under oath before the magistrate, execute theform and certify, (i) that the defendant has refused to permit blood orbreath or both blood and breath samples to be taken for testing; (ii) thatthe officer has read the portion of the form described in subsection B to thearrested person; (iii) that the arrested person, after having had the portionof the form described in subsection B read to him, has refused to permit suchsample or samples to be taken; and (iv) how many, if any, violations of thissection, § 18.2-266, or any offense described in subsection E of § 18.2-270the arrested person has been convicted of within the last 10 years. Suchsworn certification shall constitute probable cause for the magistrate toissue a warrant or summons charging the person with unreasonable refusal. Themagistrate shall attach the executed and sworn advisement form to the warrantor summons. The warrant or summons for a first offense under this sectionshall be executed in the same manner as a criminal warrant or summons. If theperson arrested has been taken to a medical facility for treatment orevaluation of his medical condition, the arresting officer may read theadvisement form to the person at the medical facility, and issue, on thepremises of the medical facility, a summons for a violation of this sectionin lieu of securing a warrant or summons from the magistrate. The magistrateor arresting officer, as the case may be, shall forward the executedadvisement form and warrant or summons to the appropriate court.

D. A first violation of this section is a civil offense and subsequentviolations are criminal offenses. For a first offense the court shall suspendthe defendant's privilege to drive for a period of one year. This suspensionperiod 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 priorto the date of the refusal he was found guilty of any of the following: aviolation of this section, a violation of § 18.2-266, or a violation of anyoffense listed in subsection E of § 18.2-270, arising out of separateoccurrences or incidents, he is guilty of a Class 2 misdemeanor and the courtshall 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 10years prior to the date of the refusal he was found guilty of any two of thefollowing: a violation of this section, a violation of § 18.2-266, or aviolation of any offense listed in subsection E of § 18.2-270 arising out ofseparate occurrences or incidents, he is guilty of a Class 1 misdemeanor andthe court shall suspend the defendant's privilege to drive for a period ofthree years. This suspension period is in addition to the suspension periodprovided under § 46.2-391.2.

(1992, c. 830; 1994, cc. 359, 363; 1997, c. 691; 2001, cc. 654, 779; 2004,cc. 985, 1013, 1022; 2004, Sp. Sess. I, c. 2; 2005, cc. 757, 840; 2009, c.239.)