2006 Code of Virginia § 29.1-738.2 - Consent to blood or breath test

29.1-738.2. Consent to blood or breath test.

A. Any person who operates a watercraft or motorboat which is underway uponwaters of the Commonwealth shall be deemed thereby, as a condition of suchoperation, to have consented to have samples of his blood, breath, or bothblood and breath taken for a chemical test to determine the alcohol, drug, orboth alcohol and drug content of his blood, if such person is arrested foroperating a watercraft or motorboat which is underway in violation ofsubsection B of 29.1-738, 29.1-738.02, or of a similar ordinance of anycounty, city or town, within two hours of the alleged offense. Any person soarrested for a violation of clause (i) or (ii), or both, of subsection B of 29.1-738, 29.1-738.02, or of a similar ordinance, shall submit to a breathtest. If the breath test is not available, or the person is physically unableto 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 administeringthe test that he has the right to observe the process of analysis and to seethe blood-alcohol reading on the equipment used to perform the breath test.If such equipment automatically produces a written printout of the breathtest result, this written printout, or a copy thereof, shall be given to theaccused in each case.

B. Any person, after having been arrested for a violation of clause (iii),(iv), or (v) of subsection B of 29.1-738, 29.1-738.02, or of a similarordinance, may be required to submit to a blood test to determine the drug orboth drug and alcohol content of his blood. When a person, after having beenarrested for a violation of clause (i) or (ii), or both, of subsection B of 29.1-738, submits to a breath test, in accordance with subsection A of thissection, or refuses to take or is incapable of taking such a breath test, hemay be required to submit to tests to determine the drug or both drug andalcohol content of his blood if the law-enforcement officer has reasonablecause to believe the person was operating a watercraft or motorboat under theinfluence of any drug or combination of drugs, or the combined influence ofalcohol and drugs.

C. If a person, after being arrested for a violation of subsection B of 29.1-738, 29.1-738.02, or of a similar ordinance of any county, city ortown and after having been advised by the arresting officer that a person whooperates a watercraft or motorboat which is underway upon the waters of theCommonwealth shall be deemed thereby, as a condition of such operation, tohave consented to have a sample of his blood and breath taken for a chemicaltest to determine the alcohol or drug content of his blood, and that theunreasonable refusal to do so constitutes grounds for a court to order himnot to operate a watercraft or motorboat which is underway upon the waters ofthe Commonwealth, then refuses to permit the taking of a sample of his bloodor breath or both blood and breath samples for such tests, the arrestingofficer shall take the person arrested before a committing magistrate. If theperson is unable to be taken before a magistrate because the person is takento a medical facility for treatment or evaluation of his medical condition,the arresting officer at a medical facility, in the presence of a witnessother than a law-enforcement officer, shall again advise the person, at themedical facility, of the law requiring blood or breath samples to be takenand the penalty for refusal. If he again so refuses after having been furtheradvised by such magistrate or by the arresting officer at a medical facilityof the law requiring a blood or breath sample to be taken and the penalty forrefusal, and so declares again his refusal in writing upon a form provided bythe Supreme Court of Virginia, or refuses or fails to so declare in writingand such fact is certified as prescribed in 18.2-268.3, then no blood orbreath sample shall be taken even though he may thereafter request same.

D. When any person is arrested for operating a watercraft or motorboat whichis underway in violation of subsection B of 29.1-738 or 29.1-738.02, theprocedures and requirements of 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 refusingto permit a blood or breath sample to be taken, the court shall order suchperson not to operate a watercraft or motorboat which is underway for aperiod of 12 months for a first offense and for 24 months for a second orsubsequent offense of refusal within five years of the first or other suchrefusal. However, if the defendant pleads guilty to a violation of subsectionB of 29.1-738, the court may dismiss the refusal warrant.

(1989, c. 726; 1990, cc. 825, 929; 1992, c. 830; 1995, c. 130; 1996, c. 631;2001, c. 779; 2005, c. 616.)