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Loudoun County Attorneys > Blog > DUI > What are the Consequences of Refusing a DUI Test in Virginia?

What are the Consequences of Refusing a DUI Test in Virginia?


In order to demonstrate that a person was actually driving under the influence (DUI) of alcohol or drugs in Virginia, the authorities must conduct a DUI test. These tests can measure levels of alcohol or drug consumption using the driver’s breath or blood. In certain cases, drivers refuse to submit to the DUI test, which subjects them to a different series of legal requirements.

Implied Consent for DUI Tests

Code of Virginia Section 18.2-268.2 details the state rules governing implied consent for DUI tests. Under this section, implied consent applies to any driver who operates a motor vehicle on highways or roadways within the Commonwealth. In other words, this requirement applies equally to in-state and out-of-state drivers.

More specifically, drivers provide implied consent for DUI tests of their breath, blood, or both. These DUI tests measure the level of alcohol, drugs, or both, to determine whether or not the driver was intoxicated. Section 18.2-268.2 requires DUI tests occur within three hours of the offense in question.

Refusing DUI Test of Breath or Blood

Code of Virginia Section 18.2-268.3 makes it unlawful to refuse to submit to a DUI test of their breath or blood. It does not matter whether the test is screening for the presence of alcohol, drugs, or other substances. As noted in the previous section, drivers provide implied consent to submit to these DUI tests.

That being said, law enforcement cannot legally force a driver to submit to a DUI test. Any person who unreasonably refuses to submit to such a DUI test is guilty of a civil offense under Section 18.2-268.3.

The punishment for this civil offense is mandatory driver’s license suspension for a period of 12 months. It may be possible, though, to obtain a restricted driving permit during the suspension period.

Special Penalties for Repeat Offenders

Section 18.2-268.3 also establishes special penalties for repeat offenders. These penalties apply to drivers who refuse a DUI test, and within the next 10 years also:

  • Refuse to submit to a second DUI test;
  • Commit DUI in violation of Code of Virginia Section 18.2-266;
  • Commit involuntary manslaughter in violation of Code of Virginia Section 18.2-36.1; or
  • Violate any substantially similar laws at the local, state, or federal levels.

In these circumstances, the offender is guilty of a Class 1 misdemeanor. Upon conviction, the offender can face up to 12 months in county jail and $2,500 in criminal fines.

Additionally, Section 18.2-268.3 mandates revocation of driving privileges for a period of 36 months. Unlike driver’s license suspension, restricted driving permits are not available during the revocation period.

Contact Us Today for Help

If you have legal questions about refusing a DUI test in Virginia, it can be tremendously helpful to speak with a seasoned criminal defense attorney. The Virginia DUI defense attorneys at Simms Showers LLP provide clients with comprehensive service in matters of criminal defense, including DUI test refusals. If you need legal help with criminal defense, contact us today for a free initial consultation.


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