Refusing a Blood Alcohol Test in Virginia

If you are arrested for a DUI and you refuse to take the blood or breath test at the police station, you might face serious consequences for that refusal. The law of implied consent in Virginia requires drivers to submit to blood or breath testing to determine their Blood Alcohol Content (“BAC”) when an officer has probable cause to believe the individual is intoxicated. The testing must be conducted within three hours of the arrest.

Before charging a defendant with refusal, the arresting officer must advise the person, from a form provided by the Office of the Executive Secretary of the Supreme Court, that:

1. 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,
2. A finding of unreasonable refusal to consent may be admitted as evidence at a criminal trial,
3. 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,
4. 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
5. 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 officer must have the defendant sign the form before charging them with unreasonable refusal. A person charged with a first time refusal will have their license suspended for one year in addition to any other penalties resulting from a DUI charge and conviction. A refusal charge within 10 years of a previous refusal or prior DUI can result in a license suspension for three years and qualifies as a Class 2 misdemeanor. (Va. Code 18.2-268.3)

If you are arrested for DUI and charged with unreasonable refusal, you should consult with an attorney right away to discuss your options and ensure your rights are adequately protected.