                                 CODE OF VIRGINIA

REFUSAL OF TESTS; ISSUANCE OF OUT-OF-SERVICE ORDERS; DISQUALIFICATION (§
46.2-341.26:3)

A. It is unlawful for a person who is arrested for a violation of § 46.2-341.24
or 46.2-341.31 to unreasonably refuse to have samples of his breath taken for
chemical tests to determine the alcohol content of his blood as required by §
46.2-341.26:2, 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 any offense listed in subsection E
   of &#xA7; 18.2-270, or a violation of &#xA7; 46.2-341.24 or 46.2-341.31
   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 § 46.2-341.24
or 46.2-341.31 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 § 46.2-341.26:2, 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 any offense listed in subsection E
   of &#xA7; 18.2-270, or a violation of &#xA7; 46.2-341.24 or 46.2-341.31
   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; 46.2-341.24 or
46.2-341.31 and such person refuses to permit blood or breath or both blood and
breath samples to be taken for testing as required by &#xA7; 46.2-341.26:2, the
arresting law-enforcement 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 commercial motor vehicle on a public highway in the Commonwealth
is deemed thereby, as a condition of such operation, to have consented to have
samples of his blood or 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 immediate issuance of
an out-of-service order prohibiting him from driving a commercial vehicle for a
period of 24 hours and for the disqualification of such person from operating a
commercial motor vehicle, (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 law-enforcement
officer shall advise the person arrested shall contain a brief statement of the
law requiring the taking of blood or breath samples, that a finding of
unreasonable refusal to consent to testing 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 law-enforcement 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, had refused to permit such
sample or samples to be taken; and (iv) how many, if any, violations of this
section, any offense listed in subsection E of &#xA7; 18.2-270, or &#xA7;
46.2-341.24 or 46.2-341.31 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
law-enforcement 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 law-enforcement officer, as the case may be,
shall forward the executed advisement form and warrant or summons to the
appropriate court.

E. If the magistrate finds that there was probable cause to believe the refusal
was unreasonable, he shall immediately issue an out-of-service order prohibiting
the person from operating a commercial motor vehicle for a period of 24 hours.

HISTORY: 1992, c. 830; 2001, c. 654; 2017, c. 623.