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Explaining Virginia Refusal Statute – § 18.2-268.3

DUI Laws in Virginia

Virginia statute § 18.2-266 prohibits residents and visitors to the state from operating a motor vehicle while under the influence of alcohol or drugs, both illicit drugs and those legally prescribed by a doctor. You are guilty of driving while intoxicated if your blood alcohol concentration measures at .08 percent or greater. These statutes also make it illegal for any person under age 21 to drive with a blood alcohol concentration greater than .02 or for a commercial driver to have a blood alcohol concentration greater than .04 percent.

Virginia is an implied consent state when it comes to sobriety and chemical tests. That means you explicitly give your consent to such testing when you pass your driver’s test and apply for a license. Because of this, you may face additional penalties for driving under the influence if you refuse to submit to such a test at the request of a police officer. Obtaining a driver’s license in Virginia means that you consent to a blood test, breath test, or both.

Penalties for Refusing to Take a Blood or Breath Test When Stopped for Suspicion of DUI

The first time you refuse to submit to a blood or breath test and you’re physically able to comply, you’re guilty of a civil offense. If you’re unable to successfully fight the charge, it results in the loss of your driving privileges for a period of one year from the date of your arrest. This is in addition to the penalties imposed for your original charge of driving with a blood alcohol concentration greater than .08 percent.

The penalties get steeper if you have a second DUI arrest or refusal in a set amount of time. For example, anyone charged in Virginia with a second or third offense that occurs 10 years or less from the first offense is guilty of a Class 1 misdemeanor. Conviction of a Class 1 misdemeanor includes the suspension of your driver’s license for a period of three years from the date of your conviction. As with a civil offense, you may receive fines and jail time on top of the long-term suspension of driving privileges.

The arresting officer will suspend your driver’s license immediately, but this does not count towards the one-year or three-year suspension you would receive if convicted. The administrative suspension imposed by the police officer can last between one week and two months, depending on whether you have previous convictions for DUI or refusal to submit to a breath or blood test.

Important Things to Know About Sobriety and Chemical Tests

The same classifications of penalties apply whether the police officer ordered you to take a breathalyzer test or a blood test. Breathalyzer tests are much more common in Virginia. Typically, the officer who stops you will offer the breath test first. If it is unavailable or you are not physically able to complete it, he or she will attempt to perform a blood test instead. You must take one of the two tests within three hours of a Virginia police officer pulling you over for suspected drunk or drugged driving.

An officer can require you to take a preliminary breath test before placing you under arrest if he or she suspects you of driving impaired. You do not legally have to submit to a preliminary breath test. If you refuse, the prosecuting attorney cannot use evidence of this refusal against you in court. However, it is usually in your best interest to submit to a request for a breath test whether it is preliminary or not.

Get Help from an Experienced DUI Attorney

Matthew Pack, the Senior Attorney at Pack Law Group, has several years of experience representing clients accused of DUI and refusal to submit to breath or blood testing. You may have a valid defense for refusing the test, such as knowing that you hadn’t been drinking at all when the officer stopped you. Mr. Pack will aggressively defend your actions and your right to continue driving in Virginia. To schedule a free legal review of your case, please contact his office in Bedford, Virginia at 540-586-7225. He serves clients in Bedford, Lynchburg, and Roanoke counties.

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