Implied Consent in Virginia and Refusal

In Virginia, every person who drives on a public highway has impliedly consented to have samples of his blood or breath taken. If a drivers refuses to give a blood or breath sample when requested to do so upon being arrested for DWI or DUI in Virginia, they violate the implied consent law.  One exception to the implied consent law is if you were driving a motor vehicle on private property.

So if you were stopped on private property in Fairfax County, Virginia, Richmond, Virginia, Virginia Beach, Virginia, Lynchburg, Virginia, Prince William County, Virginia, Fredericksburg, Virginia or any other county in Virginia, then you would not be required by law to take a breath or blood test.   

Virginia DUI Code Section 18.2-268.3 states that it is “unlawful” for a person who is arrested for a violation of 18.2-266 (DWI) 18.2-266.1 (Underage DWI), or 18.2-272 (Driving on a Revoked License) to “unreasonably refuse” to have samples of his blood or breath, or both blood and breath, taken.

What makes a refusal “unreasonable” in Virginia?

The answer to this question is fact specific and some guidance has been provided by Virginia case law?

Keep in a mind, that if a driver accused of DUI, DWI, or any other drunk driving offense voluntarily takes the breath test, the BAC results may be used against the driver at trial.

It is common practice in Virginia for police officers to charge drivers accused of a DUI in Virginia or DWI in Virginia with both a DUI/DWI and Unreasonable Refusal.

Frequently, a Virginia prosecutor will try to prove the DUI without the benefit of a breath or blood test.  The Virginia prosecutor will rely on any field sobriety tests conducted on the side of the road, driving behavior, statements made by the driver, and the officer’s general observations about the driver (such as his or her demeanor, motor skills, balance, speech, etc.).

Penalty/Punishment for Refusal of Breath or Blood Test in Virginia

A first offense of refusal to take a breath or blood test is a civil offense. Therefore, the penalty is 12 month loss of license. This license loss is in addition to the license loss imposed for the accompanying DWI/DUI if you are convicted of both.  In Virginia, a judge has no discretion to authorize restricted driving privileges on the license loss imposed for the Unreasonable Refusal conviction.

Second or subsequent violations are criminal offenses that can be either a Class 1 or 2 misdemeanors punishable by up to 6 to 12 months in jail, substantial fines, and loss of license.

Contact an Experienced Virginia DUI/DWI Defense Attorney

Call the SRIS Law Group Virginia DUI lawyers today if you have been charged with DWI/DUI/drunk driving or refusal in Virginia.  We have offices in Fairfax County, Prince William County (Northern Virginia) , Fredericksburg, Richmond (Central Virginia) Virginia Beach (Hampton Roads/Tidewater) and Lynchburg (Western Virginia). 

Contact us today by calling 888-437-7747.