2006 Code of Virginia § 46.2-341.26:3 - Refusal of tests; issuance of out-of-service orders; disqualification

46.2-341.26:3. Refusal of tests; issuance of out-of-service orders;disqualification.

A. If a person arrested for a violation of 46.2-341.24 or 46.2-341.31,after having been advised by a law-enforcement officer (i) that a person whooperates a commercial motor vehicle on a public highway in the Commonwealthis deemed thereby, as a condition of such operation, to have consented tohave samples of his blood or breath taken for chemical tests to determine thealcohol or drug content of his blood, (ii) that a finding of unreasonablerefusal to consent may be admitted as evidence at a criminal trial, and (iii)that the unreasonable refusal to do so constitutes grounds for the issuanceof an out-of-service order and for the disqualification of such person fromoperating a commercial motor vehicle, then refuses to permit blood or breathsamples to be taken for such tests, the law-enforcement officer shall takethe person before a magistrate. If he again refuses after having been furtheradvised by the magistrate (i) of the law requiring blood or breath samples tobe taken, (ii) that a finding of unreasonable refusal to consent may beadmitted as evidence at a criminal trial, and (iii) the sanctions forrefusal, and declares again his refusal in writing on a form provided by theSupreme Court, or refuses or fails to so declare in writing and such fact iscertified as prescribed below, then no blood or breath samples shall be takeneven though he may later request them.

B. The form shall contain a brief statement of the law requiring the takingof blood or breath samples, that a finding of unreasonable refusal to consentmay be admitted as evidence at a criminal trial, and the sanctions forrefusal; a declaration of refusal; and lines for the signature of the personfrom whom the blood or breath sample is sought, the date, and the signatureof a witness to the signing. If the person refuses or fails to execute thedeclaration, the magistrate shall certify such fact and that the magistrateadvised the person that a refusal to permit a blood or breath sample to betaken, if found to be unreasonable, constitutes grounds for immediateissuance of an out-of-service order prohibiting him from driving a commercialvehicle for a period of twenty-four hours, and for the disqualification ofsuch person from operating a commercial motor vehicle.

C. If the magistrate finds that there was probable cause to believe therefusal was unreasonable, he shall immediately issue an out-of-service orderprohibiting the person from operating a commercial motor vehicle for a periodof twenty-four hours and shall issue a warrant or summons charging suchperson with a violation of 46.2-341.26:2. The warrant or summons shall beexecuted in the same manner as criminal warrants. Venue for the trial of thewarrant or summons shall lie in the court of the county or city in which thecriminal offense is to be tried.

D. The executed declaration of refusal or the certificate of the magistrate,as the case may be, shall be attached to the warrant and shall be forwardedby the magistrate to the court.

E. When the court receives the declaration or certificate together with thewarrant or summons charging refusal, the court shall fix a date for the trialof the warrant or summons, at such time as the court designates.

F. The declaration of refusal or certificate under 46.2-341.26:3 shall beprima facie evidence that the defendant refused to allow a blood or breathsample to be taken to determine the alcohol or drug content of his blood.However, this shall not prohibit the defendant from introducing on his behalfevidence of the basis for his refusal. The court shall determine thereasonableness of such refusal.

(1992, c. 830; 2001, c. 654.)

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