2017 Code of Virginia
Title 46.2 - Motor Vehicles
Chapter 3 - Licensure of Drivers
§ 46.2-341.26:3. Refusal of tests; issuance of out-of-service orders; disqualification

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's privilege to drive for a period of one year. This suspension period is in addition to the suspension period provided under § 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 § 18.2-270, or a violation of § 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 § 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's privilege to drive for a period of one year. This suspension period is in addition to the suspension period provided under § 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 § 18.2-270, or a violation of § 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 § 46.2-391.2.

C. When a person is arrested for a violation of § 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 § 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 § 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 § 18.2-270, or § 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.

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