Refusal – What is it?

When a driver is pulled over for suspicion of DUI or DWI, the police will offer a breathalyzer test to the driver. This test is optional, and the results are not admissible in court.  After a driver is arrested for suspicion of DUI or DWI, the driver is required to submit to a breath test at the police station. If the driver refuses, they will be charged with refusal, which is a separate offense from the DUI or DWI.

Virginia Code §18.2-268.3(A): “It shall be unlawful for a person who is arrested for a violation of § 18.2-266 … to unreasonably refuse to have samples of his blood or breath or both blood and breath taken for chemical tests to determine the alcohol or drug content of his blood … and any person who so unreasonably refuses is guilty of a violation of this section.”

Penalties

A first-offense refusal charge is a civil infraction and carries a penalty of one year loss of license. However, the driver will be eligible for a restricted license 30 days after the conviction.

Virginia Code §18.2-268.3. Refusal of tests; penalties; procedures. “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.”

Virginia Code §18.2-268.3. Refusal of tests; penalties; procedures. “E. A defendant who is found guilty of a first offense and whose license is suspended pursuant to subdivision A 1 or B 1 may petition the court 30 days after the date of conviction for a restricted license and the court may, for good cause shown, provide that the defendant is issued a restricted license during the remaining period of suspension, or any portion thereof, for any of the purposes set forth in subsection E of § 18.2-271.1.”

A second or subsequent offense is a misdemeanor and carries a penalty of three years loss of license.

Virginia Code §18.2-268.3. Refusal of tests; penalties; procedures. “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 § 18.2-266, or a violation of any offense listed in subsection E of § 18.2-270 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.”

If convicted of refusal and DUI or DWI, the license suspensions run consecutively (in a row) not concurrently (together).

 

Possible Defenses

Reasonable Refusal
The refusal must be unreasonable for a driver to be punished under Virginia law. Evidence of a “reasonable factual basis” for the refusal to take the breath test may be introduced by a defense attorney.

3-Hour Rule / Implied Consent
Virginia’s implied consent law requires that anyone driving on public roads agrees (automatically) to give samples for testing if they lawfully are arrested for suspicion of DUI or DWI within 3 hours of last operating a vehicle.  The 3- Hour Rule applies to the time between driving (last operating a vehicle) and arrest. Under Virginia’s Implied Consent law, a motorist must be arrested within 3 hours of operating the vehicle. If that happens, the driver must submit to testing, regardless of when the testing takes place. The 3-hour rule can be important in accident cases or where an officer did not witness the driver last operating the motor vehicle.