What is Implied Consent in Virginia and Why Was I Charged with Unreasonable Refusal?
In Virginia, every person that drives on the road is deemed to have impliedly consented to have samples of his blood or breath take. Whether you were aware of this law, it applies to you. Therefore, when a driver refuses to give a sample of their blood or breath when arrested for DWI or DUI, they violate this law. Virginia Code Section 18.2-268.3 makes it “unlawful” for a person who is arrested for a violation of 18.2-266 (DWI) 18.2-266.1 (Underage DWI), or 18.2-272 (Driving on a Revoked License) to “unreasonably refuse” to have samples of his blood or breath, or both blood and breath, taken. What makes a refusal “unreasonable” is defined by the case law from the Virginia Supreme Court and Court of Appeals. However, it is important to note implied consent does NOT apply if you were driving a motor vehicle upon PRIVATE property. Accordingly, if a person is stopped while driving on private property in Fairfax or elsewhere in Virginia, they are not required by law to take a breath or blood test. If a driver accused of DUI, DWI, or any other drunk driving offense voluntarily takes the breath test, the BAC results may be used against the driver at trial.
Officers generally charge drivers who refuse tests with both DWI and Unreasonable Refusal. The prosecution can and will attempt to prove the DWI/DUI without the benefit of a breath or blood test. There is no requirement that the government use such a test to prove their case. Rather, they can rely on any field sobriety tests conducted on the side of the road, driving behavior, statements made by the driver, and the officer’s general observations about the driver (such as his or her demeanor, motor skills, balance, speech, etc.).
What is the Penalty or Punishment for Refusing to Take the Breath or Blood Test?
A first offense of refusal to take a breath or blood test is a civil offense. Therefore, it is punishable only by a 12 month loss of license. This license loss is in addition to the license loss imposed for the accompanying DWI/DUI. However, the judge has no discretion to authorize restricted driving privileges on the license loss imposed for the Unreasonable Refusal conviction.
Second or subsequent violations are criminal offenses that can be either a Class 1 or 2 misdemeanor punishable by up to 6 to 12 months in jail, substantial fines, and loss of license.
For additional information, review our DWI/DUI pages for additional information including DWI FAQs and DWI defenses.
