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Loudoun County Attorneys > Blog > DUI > Is it a Crime to Refuse a DUI Test in Virginia?

Is it a Crime to Refuse a DUI Test in Virginia?


Across the Commonwealth of Virginia, law enforcement officers have the authority to execute traffic stops for violations ranging from speeding to driving under the influence (DUI) of alcohol or drugs. Concerning DUI offenses, specifically, law enforcement officers are responsible for administering official tests to determine whether a driver is intoxicated.

When a law enforcement officer stops a driver on suspicion of DUI or a similar offense, Virginia law outlines an official testing process. Furthermore, the requirements and corresponding penalties fluctuate based on whether the driver is impaired by alcohol, drugs, or both.

Implied Consent for DUI Testing

Under Code of Virginia Section 18.2-268.2, any person who operates a motor vehicle on state roadways provides implied consent for DUI testing. In cases of suspected DUI, this means that law enforcement officers are allowed to collect samples of the driver’s breath, blood, or both.

Under Section 18.2-268.2, law enforcement officers must administer an official chemical test — in adherence with applicable rules and regulations — within three hours of the suspected crime. Whether law enforcement requests breath tests, blood tests, or both usually depends on the type of intoxication in question.

If the driver is allegedly under the influence of or impaired by:

  • Alcohol — Then breath tests are typically appropriate, though blood tests are also available in certain circumstances;
  • Drugs — Then blood tests are typically appropriate; or
  • Alcohol & Drugs — Then both breath and blood tests are typically appropriate.

Refusing Lawful DUI Testing

If a driver refuses a lawful request for DUI testing, it is a crime under Code of Virginia Section 18.2-268.3. Though the penalties under this section can change depending on the type of test the driver refused.

Under Section 18.2-268.3, the penalties for refusing a breath test are as follows:

  • First Violation — Is a civil offense, punishable by one year of driver’s license suspension; and
  • Second Violation (within 10 years) — Is a Class 1 misdemeanor, punishable by three years of driver’s license suspension and up to 12 months in jail as well as $2,500 in fines.

Although substantially similar, the penalties for refusing a blood test are slightly different, as highlighted below:

  • First Violation — Is a civil offense, punishable by one year of driver’s license suspension; and
  • Second Violation (within 10 years) — Is a civil offense, punishable by three years of driver’s license suspension.

Additionally, it is important to note that driver’s license suspension periods under Section 18.2-268.3 is not exclusive. The penalties above exist in addition to any other punishment or suspension required by Code of Virginia Section 46.2-391.2.

Let Us Help You Today

If you need legal help with refusing a DUI test or similar crimes in Virginia, it can be highly constructive to reach out to a seasoned criminal defense attorney. The Leesburg DUI and DWI attorneys at Simms Showers LLP have assisted many clients with criminal charges across Virginia, including DUI and test refusals. If you have legal questions about criminal defense, contact us today for a free initial consultation.


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