To quote directly from the relevant Virginia Code section:
“Any person, whether licensed by Virginia or not, who operates a vehicle upon a [Virginia] highway…shall be deemed, as a condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood [provided he is arrested for DUI and it’s within three hours of the offense].”Virginia Code § 18.2-268.2
Put another way, anyone who drives on Virginia roads is effectively consenting to blood or breathalyzer testing upon a DUI arrest.
This includes both when the police are trying to ascertain either alcohol or drug content in your blood. Both are covered under this implied consent law.
Below, we’ll answer a few common questions about Virginia’s implied consent law. You can also read the law in its entirety on the Virginia Legal Information System.
Implied Consent FAQ
When does implied consent apply?
In order for implied consent to apply, a few separate criteria must be met:
- The driver must have been driving on a public highway;
- The arrest must occur within 3 hours of the alleged offense; and
- The driver must be suspected of, and arrested for, driving under the influence. This includes underage DUI cases and driving on a revoked license with a BAC higher than 0.02%.
Or, put another way, implied consent does not apply when you’re driving on a private road (such as your driveway), or if the actual DUI offense you’re charged with occurred more than three hours before the officers tried to administer the test.
Can I refuse the implied consent breathalyzer test?
One of the most frequently asked questions, and most common mistakes, about implied consent involves your right to refuse a breathalyzer test.
To be especially clear:
- You can refuse a preliminary breathalyzer test given on the side of the road without any penalty (though the officer will likely still arrest you using other evidence).
- You cannot refuse the evidence-grade breathalyzer test that officers administer at the police station after your arrest without penalty. Doing so will result in additional penalties (and potentially even another criminal charge)
If you do refuse to take either a breathalyzer or a blood test, you will have to sign and file a Declaration and Acknowledgement of Refusal form, detailing the penalties you will receive for refusing as well as confirming your refusal for future use in court.
What are the penalties for refusing the test?
The different penalties that apply for refusing tests can change depending on (1) the number of times you have refused or been arrested in the past, and (2) which type of test you refuse (breath or blood).
Your first refusal of a breathalyzer test is a civil offense, punishable by the suspension of your license for one year.
A second or subsequent refusal of a breathalyzer test, within 10 years of the previous refusal, is a criminal offense punishable as a Class 1 misdemeanor.
This means you will face a fine of up to $2,500, up to 12 months of jail time, and the revocation of your license for one year.
Similarly, your first refusal of a blood test will result in the court suspending your license for one year.
However, a second or subsequent refusal or a blood test is not a Class 1 misdemeanor.
Instead, it is simply punishable by the revocation of the offender’s license for a period of three years.
This is because of a 2016 Supreme Court decision which stated that states cannot criminalize the refusal of a blood test (see Birchfield v. North Dakota).
What if I’m unconscious or cannot give consent?
If you are unconscious after having been suspected of driving under the influence of alcohol, the police may draw your blood without a warrant.
This is based on a recent Supreme Court ruling in 2018 in the case Mitchell v. Wisconsin, as well as on the actual wording of the Code statute itself.
“Any person so arrested for a [DUI violation]…shall submit to a breath test. If the breath test is unavailable, or the person is physically unable to submit to the breath test, a blood test shall be given.”Virginia Code § 18.2-268.2(B)
There are many different ways to receive a DUI in Virginia.
Each of these creates an implied consent situation, where you must either submit to a breathalyzer and/or blood test or file a refusal form with the court.
However, refusing a test at this stage will almost never help your situation.
Even if your BAC or drug content is high, submitting to the tests and proving cooperation will go further in your favor than refusing to do so.
Fighting either a DUI or refusal charge can get very technical and involved. Your options will depend heavily on the facts of your case.
If you find yourself facing these charges, it’s important to consult with a lawyer to receive guidance throughout the process.