                                 CODE OF VIRGINIA

CONSENT TO BLOOD OR BREATH TEST (§ 29.1-738.2)

A. Any person who operates a watercraft or motorboat which is underway upon
waters of the Commonwealth shall be deemed thereby, as a condition of such
operation, to have consented to have samples of his blood, breath, or both blood
and breath taken for a chemical test to determine the alcohol, drug, or both
alcohol and drug content of his blood, if such person is arrested for operating
a watercraft or motorboat which is underway in violation of subsection B of
&#xA7; 29.1-738, &#xA7; 29.1-738.02, or of a similar ordinance of any county,
city or town, within three hours of the alleged offense. Any person so arrested
for a violation of clause (i) or (ii), or both, of subsection B of &#xA7;
29.1-738, &#xA7; 29.1-738.02, or of a similar ordinance, shall submit to a
breath test. If the breath test is not available, or the person is physically
unable to submit to the breath test, a blood test shall be given. The accused
shall, prior to administration of the test, be advised by the person
administering the test that he has the right to observe the process of analysis
and to see the blood-alcohol reading on the equipment used to perform the breath
test. If such equipment automatically produces a written printout of the breath
test result, this written printout, or a copy thereof, shall be given to the
accused in each case.

B. Any person, after having been arrested for a violation of clause (iii), (iv),
or (v) of subsection B of &#xA7; 29.1-738, &#xA7; 29.1-738.02, or of a similar
ordinance, may be required to submit to a blood test to determine the drug or
both drug and alcohol content of his blood. When a person, after having been
arrested for a violation of clause (i) or (ii), or both, of subsection B of
&#xA7; 29.1-738, submits to a breath test, in accordance with subsection A of
this section, or refuses to take or is incapable of taking such a breath test,
he may be required to submit to tests to determine the drug or both drug and
alcohol content of his blood if the law-enforcement officer has reasonable cause
to believe the person was operating a watercraft or motorboat under the
influence of any drug or combination of drugs, or the combined influence of
alcohol and drugs.

C. If a person, after being arrested for a violation of subsection B of &#xA7;
29.1-738, &#xA7; 29.1-738.02, or of a similar ordinance of any county, city or
town and after having been advised by the arresting officer that a person who
operates a watercraft or motorboat which is underway upon the waters of the
Commonwealth shall be deemed thereby, as a condition of such operation, to have
consented to have a sample of his blood and breath taken for a chemical test to
determine the alcohol or drug content of his blood, and that the unreasonable
refusal to do so constitutes grounds for a court to order him not to operate a
watercraft or motorboat which is underway upon the waters of the Commonwealth,
then refuses to permit the taking of a sample of his blood or breath or both
blood and breath samples for such tests, the arresting officer shall take the
person arrested before a committing magistrate. If the person is unable to be
taken before a magistrate because the person is taken to a medical facility for
treatment or evaluation of his medical condition, the arresting officer at a
medical facility, in the presence of a witness other than a law-enforcement
officer, shall again advise the person, at the medical facility, of the law
requiring blood or breath samples to be taken and the penalty for refusal. If he
again so refuses after having been further advised by such magistrate or by the
arresting officer at a medical facility of the law requiring a blood or breath
sample to be taken and the penalty for refusal, and so declares again his
refusal in writing upon a form provided by the Supreme Court of Virginia, or
refuses or fails to so declare in writing and such fact is certified as
prescribed in &#xA7; 18.2-268.3, then no blood or breath sample shall be taken
even though he may thereafter request same.

D. When any person is arrested for operating a watercraft or motorboat which is
underway in violation of subsection B of &#xA7; 29.1-738 or &#xA7; 29.1-738.02,
the procedures and requirements of &#xA7;&#xA7; 18.2-268.1 through 18.2-268.11
shall apply, mutatis mutandis, to this section.

E. If the court or jury finds the defendant guilty of unreasonably refusing to
permit a blood or breath sample to be taken, the court shall order such person
not to operate a watercraft or motorboat which is underway for a period of 12
months for a first offense and for 24 months for a second or subsequent offense
of refusal within five years of the first or other such refusal. However, if the
defendant pleads guilty to a violation of subsection B of &#xA7; 29.1-738, the
court may dismiss the refusal warrant.

HISTORY: 1989, c. 726; 1990, cc. 825, 929; 1992, c. 830; 1995, c. 130; 1996, c.
631; 2001, c. 779; 2005, c. 616; 2007, c. 168.