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What Happens if Someone Refuses a DUI Test in Virginia?


In the Commonwealth of Virginia, it is illegal to drive under the influence (DUI) of alcohol, drugs, or a combination of both. If law enforcement suspects drunk or intoxicated driving, they will pull over the driver. Within a short time thereafter, law enforcement will administer a test of the driver’s breath, blood, or both. If the DUI test indicates intoxication from alcohol or drugs, then the driver may face criminal charges.

Implied Consent for DUI Tests

Under Code of Virginia Section 18.2-268.2, a driver who operates a motor vehicle on Virginia highways provides their implied consent to submit to a DUI test. In other words, all drivers in Virginia consent to a chemical test of their blood, breath, or both. Section 18.2-268.2 applies to all drivers on Virginia highways, including drivers with out-of-state licenses.

DUI Test Refusal Procedure

Under Code of Virginia Section 18.2-268.3, there are special procedures for DUI test refusals. If a driver refuses to submit to such a chemical test, then there is a specific process in place. Specifically, the arresting police officer must issue a standardized form from the Office of the Executive Secretary of the Supreme Court. Among other information, the DUI test refusal form outlines that:

  • All drivers in Virginia provide implied consent to submit to a chemical test of their breath, blood, or both;
  • A DUI test refusal may result in driver’s license suspension or revocation;
  • The civil penalties and criminal penalties for a DUI test refusal; and
  • A DUI test refusal may be introduced as evidence in a criminal proceeding.

After discussing the information above with the driver, the arresting officer must sign the form and issue a statement under oath. The officer’s statement must certify that:

  • The driver refused to submit to a DUI test of their breath, blood, or both;
  • The officer outlined the information above from the standardized form;
  • The driver again refused to submit to a DUI test, even after hearing the information on the form; and
  • The driver’s number of past test refusals, DUIs, and similar offenses.

Penalties for Refusing a DUI Test

The penalties for refusing a DUI test appear in Section 18.2-268.3. If a driver refuses a blood test, breath test, or both tests, then there are automatic penalties under Virginia law. Furthermore, the penalties intensify based on the number of offenses.

  • First Offense — Results in driver’s license suspension for at least 12 months; and
  • Subsequent Offense (within 10 years) — Results in driver’s license suspension for at least 36 months and Class 1 misdemeanor charges. The normal punishment for a Class 1 misdemeanor includes 12 months in jail and $2,500 in fines, either or both.

Do You Need Legal Help?

If you refused a DUI test in Virginia, it is beneficial to retain the services of a skilled criminal defense attorney. The attorneys at Simms Showers LLP, servicing Leesburg, Winchester, Fairfax, and Manassas, have proven abilities in the arena 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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Contact the Leesburg, Winchester & Loudoun County Attorneys of Simms Showers LLP today

Simms Showers LLP is conveniently located two blocks from the Loudoun County Courthouse. Our criminal defense firm offers a free phone consultation for criminal or personal injury cases. Se habla español. Call Simms Showers LLP for quality legal counsel today at 703-997-7821 or contact us online.

I acknowledge that contacting Simms Showers LLP, through this website does not create an attorney-client relationship, and information I send is not protected by attorney-client privilege.
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