                                 CODE OF VIRGINIA

REFUSAL OF TESTS; PENALTIES; PROCEDURES (§ 18.2-268.3)

A. It is unlawful for a person who is arrested for a violation of § 18.2-266 or
18.2-266.1 or subsection B of § 18.2-272 or of a similar ordinance to
unreasonably refuse to have samples of his breath taken for chemical tests to
determine the alcohol content of his blood as required by § 18.2-268.2, and any
person who so unreasonably refuses is guilty of a violation of this subsection,
which is punishable as follows:

   1. A first violation is a civil offense. For a first offense, the court shall
   suspend the defendant&#8217;s privilege to drive for a period of one year.
   This suspension period is in addition to the suspension period provided under
   &#xA7; 46.2-391.2.

   2. If a person is found to have violated this subsection and within 10 years
   prior to the date of the refusal he was found guilty of any of the following:
   a violation of this section, a violation of &#xA7; 18.2-266, or a violation of
   any offense listed in subsection E of &#xA7; 18.2-270 arising out of separate
   occurrences or incidents, he is guilty of a Class 1 misdemeanor. A conviction
   under this subdivision shall of itself operate to deprive the person of the
   privilege to drive for a period of three years from the date of the judgment
   of conviction. This revocation period is in addition to the suspension period
   provided under &#xA7; 46.2-391.2.

B. It is unlawful for a person who is arrested for a violation of § 18.2-266 or
18.2-266.1 or subsection B of § 18.2-272 or of a similar ordinance to
unreasonably refuse to have samples of his blood taken for chemical tests to
determine the alcohol or drug content of his blood as required by § 18.2-268.2
and any person who so unreasonably refuses is guilty of a violation of this
subsection, which is a civil offense and is punishable as follows:

   1. For a first offense, the court shall suspend the defendant&#8217;s
   privilege to drive for a period of one year. This suspension period is in
   addition to the suspension period provided under &#xA7; 46.2-391.2.

   2. If a person is found to have violated this subsection and within 10 years
   prior to the date of the refusal he was found guilty of any of the following:
   a violation of this section, a violation of &#xA7; 18.2-266, or a violation of
   any offense listed in subsection E of &#xA7; 18.2-270 arising out of separate
   occurrences or incidents, such violation shall of itself operate to deprive
   the person of the privilege to drive for a period of three years from the date
   of the judgment. This revocation period is in addition to the suspension
   period provided under &#xA7; 46.2-391.2.

C. When a person is arrested for a violation of &#xA7; 18.2-51.4, 18.2-266, or
18.2-266.1 or subsection B of &#xA7; 18.2-272 or of a similar ordinance and such
person refuses to permit blood or breath or both blood and breath samples to be
taken for testing as required by &#xA7; 18.2-268.2, the arresting officer shall
advise the person, from a form provided by the Office of the Executive Secretary
of the Supreme Court (i) that 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, (ii) that a finding
of unreasonable refusal to consent may be admitted as evidence at a criminal
trial, (iii) that 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, (iv) of the civil penalties for unreasonable refusal to have
blood or breath or both blood and breath samples taken, and (v) of the criminal
penalty for unreasonable refusal to have breath samples taken within 10 years of
a prior conviction for driving while intoxicated or unreasonable refusal, which
is a Class 1 misdemeanor. The form from which the arresting officer shall advise
the person arrested shall contain a brief statement of the law requiring the
taking of blood or breath samples, a statement that a finding of unreasonable
refusal to consent may be admitted as evidence at a criminal trial, and the
penalties for refusal. The Office of the Executive Secretary of the Supreme
Court shall make the form available on the Internet and the form shall be
considered an official publication of the Commonwealth for the purposes of
&#xA7; 8.01-388.

D. The arresting officer shall, under oath before the magistrate, execute the
form and certify (i) that the defendant has refused to permit blood or breath or
both blood and breath samples to be taken for testing; (ii) that the officer has
read the portion of the form described in subsection C to the arrested person;
(iii) that the arrested person, after having had the portion of the form
described in subsection C read to him, has refused to permit such sample or
samples to be taken; and (iv) how many, if any, violations of this section,
&#xA7; 18.2-266, or any offense described in subsection E of &#xA7; 18.2-270 the
arrested person has been convicted of within the last 10 years. Such sworn
certification shall constitute probable cause for the magistrate to issue a
warrant or summons charging the person with unreasonable refusal. The magistrate
shall attach the executed and sworn advisement form to the warrant or summons.
The warrant or summons for a first offense under subsection A or any offense
under subsection B shall be executed in the same manner as a criminal warrant or
summons. If the person arrested has been taken to a medical facility for
treatment or evaluation of his medical condition, the arresting officer may read
the advisement form to the person at the medical facility, and issue, on the
premises of the medical facility, a summons for a violation of this section in
lieu of securing a warrant or summons from the magistrate. The magistrate or
arresting officer, as the case may be, shall forward the executed advisement
form and warrant or summons to the appropriate court.

E. A defendant who is found guilty of a first offense and whose license is
suspended pursuant to subdivision A 1 or B 1 may petition the court 30 days
after the date of conviction for a restricted license and the court may, for
good cause shown, provide that the defendant is issued a restricted license
during the remaining period of suspension, or any portion thereof, for any of
the purposes set forth in subsection E of &#xA7; 18.2-271.1. No restricted
license issued pursuant to this subsection shall permit any person to operate a
commercial motor vehicle as defined in the Virginia Commercial Driver&#8217;s
License Act (&#xA7; 46.2-341.1 et seq.). If the court grants such petition and
issues the defendant a restricted license, the court shall order (i) that
reinstatement of the defendant&#8217;s license to drive be conditioned upon (a)
the installation of an ignition interlock system on each motor vehicle, as
defined in &#xA7; 46.2-100, owned by or registered to the person, in whole or in
part, for a period of time not to exceed the period of license suspension and
restriction, not less than six consecutive months without alcohol-related
violations of the interlock requirements and (b) the requirement that such
person not operate any motor vehicle that is not equipped with such a system for
the period of time that the interlock restriction is in effect and (ii) that, as
a condition of probation or otherwise, the defendant enter into and successfully
complete an alcohol safety action program in the judicial district in which such
charge is brought or in any other judicial district upon such terms and
conditions as the court may set forth. However, upon motion of a person
convicted of any such offense following an assessment of the person conducted by
an alcohol safety action program, the court, for good cause, may decline to
order participation in such a program if the assessment conducted by the alcohol
safety action program indicates that intervention is not appropriate for such
person. In no event shall such persons be permitted to enter any such program
that is not certified as meeting minimum standards and criteria established by
the Commission on the Virginia Alcohol Safety Action Program (VASAP) pursuant to
this section and to &#xA7; 18.2-271.2. The court shall require the person
entering such program under the provisions of this section to pay a fee of no
less than $250 but no more than $300. A reasonable portion of such fee, as may
be determined by the Commission on VASAP, but not to exceed 10 percent, shall be
forwarded monthly to be deposited with the State Treasurer for expenditure by
the Commission on VASAP, and the balance shall be held in a separate fund for
local administration of driver alcohol rehabilitation programs. Upon a positive
finding that the defendant is indigent, the court may reduce or waive the fee.
In addition to the costs of the proceeding, fees as may reasonably be required
of defendants referred for intervention under any such program may be charged.
			If the court grants a restricted license to any person pursuant to this
section, the court shall order such person to surrender his driver&#8217;s
license to be disposed of in accordance with the provisions of &#xA7; 46.2-398
and shall forward to the Commissioner of the Department of Motor Vehicles a copy
of its order entered pursuant to this subsection. This order shall specifically
enumerate the restrictions imposed and contain such information regarding the
person to whom such a permit is issued as is reasonably necessary to identify
such person. The court shall also provide a copy of its order to such person who
may operate a motor vehicle on the order until receipt from the Commissioner of
the Department of Motor Vehicles of a restricted license, but only if the order
provides for a restricted license for that period. A copy of the order and,
after receipt thereof, the restricted license shall be carried at all times by
such person while operating a motor vehicle. The period of time during which the
person is prohibited from operating a motor vehicle that is not equipped with an
ignition interlock system shall be calculated from the date the person is issued
a restricted license by the court; however, such period of time shall be tolled
upon the expiration of the restricted license issued by the court until such
time as the person is issued a restricted license by the Department of Motor
Vehicles. Any person who operates a motor vehicle in violation of any
restrictions imposed pursuant to this section shall be guilty of a violation of
&#xA7; 18.2-272. The provisions of subsection F of &#xA7; 18.2-271.1 shall apply
to this subsection mutatis mutandis, except as herein provided.

F. Notwithstanding any other provisions of this section or of &#xA7; 18.2-271.1,
nothing in this section shall permit the court to suspend, reduce, limit, or
otherwise modify any disqualification from operating a commercial motor vehicle
imposed under the provisions of the Virginia Commercial Driver&#8217;s License
Act (&#xA7; 46.2-341.1 et seq.).

HISTORY: 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; 2017, c. 623; 2020, c. 341.